HomeMy WebLinkAbout1992-476
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RESOLUTION NO. 92-476
RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
3 EXECUTION OF AN AGREEMENT WITH GREAT WESTERN BANK (GWB) TO PERFORM
SERVICES RELATING TO THE ADMINISTRATION OF THE PST DEFERRED
4 COMPENSATION PLAN.
5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AS FOLLOWS:
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SECTION 1.
The Mayor is hereby authorized and directed to
execute on behalf of said City an Agreement with Great Western
Bank, to perform services relating to the Administration of the
PST Deferred Compensation Plan, a copy of said agreement is
attached hereto, marked Exhibit "A", and incorporated herein by
reference as fully as though set forth at length.
SECTION 2.
The authorization to execute the above
referenced agreement is rescinded if the parties to the agreement
fail to execute it within sixty (60) days of the passage of this
resolution.
I HEREBY CERTIFY that the foregoing resolution was duly
adopted by the Mayor and Common Council of the City of San
Bernardino at a
reaular
meeting thereof, held on the
December
, 1992, by the following vote, to
1 RESOLUTION WITH GWB TO PERFORM SERVICES RELATING TO THE
ADMINISTRATION OF THE PST DEFERRED COMPENSATION PLAN.
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3 Council Members:
4 ESTRADA
5 REILLY
6 HERNANDEZ
7 MAUDSLEY
8 MINOR
9 POPE-LUDLAM
10 MILLER
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AYES
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NAYS
ABSTAIN
ABSENT
~~~
city Clerk
The foregoing resolution is hereby approved
14 day of3:) ELC. <'. ~,"':::,p ~_ , 1992.
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Approved as to
18 form and legal content:
19 JAMES F. PENMAN,
city Attorney
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By:~<-4J
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3 AGREEMENT
4 This Agreement, is effective this 1st day of January 1993, by
5 and between GREAT WESTERN BANK, a Federal Savings Bank,
6 hereinafter referred to as GREAT WESTERN, and the CITY OF SAN
7 BERNARDINO hereinafter referred to as CITY:
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9 WITNESSETH:
10 WHEREAS, CITY pursuant to and in compliance with sections
11 3121(b) (7) (F) and 457 (b) of the Internal Revenue Code of 1986,
12 has established a Deferred Compensation Plan, hereinafter referred
13 to as PLAN; and
14 WHEREAS, CITY desires to utilize GREAT WESTERN in the
15 performance of certain services in connection with the
16 administration of the PLAN; and
17 WHEREAS, GREAT WESTERN desires to provide such services
18 subject to the terms and conditions set forth herein;
19 NOW THEREFORE, CITY and GREAT WESTERN agree as follows:
20 1. TERM: This Agreement shall remain in effect until such
21 time as it may be terminated by the parties. In the event the
22 Agreement is terminated for "Cause" (WhiCh shall mean the failure
23 of either party to perform any or all of its obligations as
24 defined herein), the non-defaulting party shall give the
25 defaulting party written notice, specifying the particulars of the
26 default. If such default is not cured within sixty (60) days from
27 the end of the month in which notice of default is given, the non-
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1 defaulting party may terminate the Agreement effective thirty (30)
2 days after the end of the sixty (60) day period.
3 For purposes of this Agreement, "Contract Year" shall mean
4 the period of time between the effective date of the Contract, and
5 the same day of the month in each succeeding year; the first
6 Contract Year, however, shall be extended, if necessary in order
7 to ensure that every Contract Year will end on the last day of a
8 calendar month.
9 Notwithstanding the above, this Agreement may be terminated
10 by either party, with or without "Cause" as that term may be
11 defined herein, upon the giving of ninety (90) days written notice
12 to the other party.
13 2. FUNDING: CITY may fund this Agreement by forwarding
14 participant deferrals to GREAT WESTERN at such times as it may see
15 fit.
16 3. TERMINATION: Upon the effective date of termination of
17 this Agreement, other than for Cause as defined above, the
18 following shall occur:
19 A. GREAT WESTERN shall issue reports to CITY detailing
20 the status of PLAN assets no later than twenty (20) business days
21 after the end of the month in which termination becomes effective.
22 CITY may request liquidation and withdrawal of PLAN assets. GREAT
23 WESTERN shall disburse those funds deposited in Great Western
24 Savings, not subject to penalty for early withdrawal, within
25 ninety (90) days of the effective date of termination.
26 B. If termination is for Cause, GREAT WESTERN shall
27 disburse those funds deposited in Great Western Savings, not
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1 subject to penalty for early withdrawal, within thirty (30) days
2 of the effective date of termination.
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4.
CITY agrees to:
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Cause appropriate deductions to be made from such
5 payroll(s) as may be applicable.
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B.
Send by check or wire transfer the amount of the
7 total deductions to:
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Great Western Bank
Deferred Compensation Department
P.O. Box 6350
Northridge, California 91328
or to such other facility or in such other manner as may be
mutually agreed upon between GREAT WESTERN and CITY.
C.
Provide, in such form as agreed upon by CITY and
GREAT WESTERN, a deferral listing with respect to participant sub-
accounts to include not less than the following:
1. Name of Participant
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Social Security Number of participant
Amount to be credited to participant's sub-
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account(s)
GREAT WESTERN agrees to:
D.
Establish a sub-account for each participant.
E.
Credit the amounts sent by CITY to the sub-
account(s) of the various participants.
F. Funds invested in the option described herein as
"GWBIA" will accrue interest as of the date of receipt by GREAT
WESTERN.
5.
RECORD KEEPING AND REPORTS:
GREAT WESTERN agrees to
furnish CITY, not later than twenty (20) days following the end of
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1 each month and each quarter a report regarding the status of the
2 PLAN containing the following information:
3 A. Each participant's name
4 B. Each participant's social Security Number
5 C. Each participant's sub-account number
6 D. Deposits credited to each sub-account during the
7 period
8 E. withdrawals from each sub-account during the period
9 F. Interest/Earnings credited to each sub-account
10 during the period
11 G. Total value of each sub-account
12 H. Summary totals of the PLAN
13 GREAT WESTERN agrees to provide quarterly statements to
14 participants in the PLAN, no later than twenty (20) days following
15 the end of each calendar quarter. Each statement shall identify
16 the transactions which have occurred in the participant's sub-
17 account at the beginning and the end of the preceding quarter.
18 GREAT WESTERN agrees to maintain the records necessary to
19 produce the above mentioned reports, and agrees that all records
20 shall be the property of CITY and that, in the event this
21 Agreement is terminated for any reason, GREAT WESTERN will provide
22 CITY a copy of such records, in hard copy or such other form as
23 mutually agreed upon between GREAT WESTERN and CITY, within ninety
24 (90) days after the effective date of termination. CITY agrees
25 that all related computer tapes, discs and programs shall remain
26 the property of GREAT WESTERN.
27 GREAT WESTERN agrees that all information supplied to and all
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1 work processed or completed by GREAT WESTERN shall be held to be
2 confidential and will not be disclosed to anyone other than CITY
3 except as required by law.
4 6. DISTRIBUTIONS: Upon receipt of authorized written
5 instructions from CITY, in such form and with such authorization
6 as mutually agreed upon by GREAT WESTERN and CITY, GREAT WESTERN
7 agrees to process the payment of benefits to participants and
8 beneficiaries in accordance with PLAN. Distribution requests
9 received by the last business day of the current month will be
10 processed on or before the last business day of the following
11 month. The above notwithstanding, GREAT WESTERN will cooperate
12 with CITY to not unreasonably delay distribution requested in
13 conjunction with "emergency withdrawals", as defined in the PLAN.
14 GREAT WESTERN agrees to withhold appropriate Federal and
15 State income taxes, according to instructions set forth on form W-
16 4 completed by the participant, to remit such withholdings to
17 proper taxing authorities, and to issue net funds to
18 participant(s) or beneficiary(ies) in accordance with instructions
19 on the Distribution Request Form. GREAT WESTERN agrees to perform
20 required monthly, quarterly and annual reporting of withholdings
21 to appropriate taxing authorities. GREAT WESTERN agrees to issue
22 appropriate annual wage and tax statements to those participants
23 and beneficiaries who received distribution(s) during the
24 preceding year and to retain a copy of such information on file
25 for the period required by law. GREAT WESTERN agrees to provide
26 CITY a monthly report of all disbursements made during the
27 previous month.
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7. INVESTMENT VEHICLES:
the herein described services
investment vehicles.
Great Western Bank Indexed Account ("GWBIA").
The investment vehicle identified as GWBIA shall be savings
accounts with GREAT WESTERN. Each such account shall be subject
to rules, regulations and statutes to which GREAT WESTERN is
subject, as promulgated by the Office of Thrift Supervision (OTS),
the Federal Deposit Insurance Corporation (FDIC) and other such
regulatory authorities.
GREAT WESTERN agrees to accept PLAN funds for investment in
GWBIA. PLAN funds will earn interest by whichever of the
following methods results in the highest rate payable:
A. The rate of interest for all funds received during
the term of the contract shall be the annualized yield obtained
from the use of the over-the-counter rate quotation for the 90 Day
united States Government Treasury Bill plus twenty-five (25) basis
points, in effect on the last business day of each calendar
quarter. This effective annualized yield will be guaranteed for
the succeeding calendar quarter regardless of any subsequent
change in the 90 Day united States Treasury Bill yield.
The current rate/yield is: Rate 3.84 % Yield 3.96
GREAT WESTERN agrees to provide
for CITY with the following
% (T.B.D.)
B. Such other yield as declared by GREAT WESTERN and
shall not be lower than A. above.
Interest will accrue daily, using the 365/360 day method,
will be credited monthly, on the last day of the month, and will
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1 be automatically reinvested to allow for monthly compounding.
2 8. ENROLLMENT SERVICES: GREAT WESTERN agrees to process,
3 or arrange to have processed, the enrollment of eligible employees
4 who participate in the PLAN. GREAT WESTERN agrees to provide
5 informational and promotional material pursuant to the PLAN for
6 distribution to employees of CITY, subject to approval of such
7 material by CITY, such approval not to be unreasonably withheld.
8 CITY agrees to allow and facilitate the periodic distribution of
9 such material to employees.
10 GREAT WESTERN agrees to conduct, or arrange to have
11 conducted, group presentations periodically for employees of CITY,
12 to explain the PLAN. CITY agrees to facilitate the scheduling of
13 such presentations and to provide facilities at which satisfactory
14 attendance can be expected. GREAT WESTERN agrees that qualified
15 personnel will be made available periodically to discuss the PLAN
16 with individual employees of CITY.
17 9. TITLE AND OWNERSHIP: CITY shall at all times be the
18 unrestricted owner of all PLAN assets, in accordance with IRC 457
19 provisions.
20 10. PRIVITY OF CONTRACT: GREAT WESTERN shall have no
21 privity of contract with PLAN participants. GREAT WESTERN agrees
22 not to accept or honor instructions which may be submitted by
23 participants without written authorization from CITY.
24 11. FEES AND EXPENSES: GREAT WESTERN shall receive from
25 CITY an administration fee equal to $.46 for each Plan "PST"
26 participant account submitted each bi-weekly pay period or equal
27 to $.50 for each Plan "PST" participant account submitted each
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1 semi-monthly pay period, whichever applies. Such fee shall be
2 paid to GREAT WESTERN by CITY at the time of submission of
3 participant account data. No fees will be assessed until such
4 time as the Agreement may be funded.
5 12 . CIRCUMSTANCES EXCUSING PERFORMANCE: The performance
6 by the parties to this AGREEMENT is subject to force maieure and
7 shall be excused for the time and to the extent that it is
8 prevented by fires, power failures, strikes, acts of God,
9 restrictions imposed by government or governmental agency, or
10 delays beyond the delayed party's control. Failures of or
11 defaults of participants, employers, or investment vehicles shall
12 excuse performance by GREAT WESTERN of the duties affected thereby
13 to the extent and for the time that it is prevented from
14 performing them.
15 13. INDEMNIFICATION: Each party to this Agreement shall
16 indemnify and hold the other party, its officers, agents and
17 employees harmless from all damages, losses, costs and expenses,
18 including attorney fees, amounts paid in settlement, judgments,
19 and any other legal expense, arising from the negligence or
20 wrongful conduct, whether negligent or intentional, of the
21 indemnifying party or of its officers, employees or contractors.
22 GREAT WESTERN shall not be liable for investment performance,
23 except as expressly provided in this Agreement.
24 14. ASSIGNABILITY: No party to this Agreement shall assign
25 its rights or delegate its duties or responsibilities under this
26 Agreement, or sub-contract any of its responsibilities hereunder,
27 without the prior written approval of the other party. Such
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1 approval shall not be unreasonably withheld. Unless otherwise
2 expressly stated in such approval by a party, any such assignment
3 or delegation shall not relieve the assignor or delegator of any
4 of its duties and obligations under this Agreement.
5 15. PARTIES BOUND: This Agreement and the provisions thereof
6 shall be binding upon and shall inure to the benefit of the
7 successors and assigns of the respective parties.
8 16. APPLICABLE LAW: This Agreement shall be construed in
9 accordance with the laws operating within the State of California.
10 17. UNLAWFUL PROVISIONS: In the event any provisions of
11 this Agreement shall be held illegal or invalid for any reason,
12 said illegality or invalidity shall not affect the remaining parts
13 of the Agreement, but the same shall be construed and enforced as
14 if said illegal or invalid provision had never been inserted
15 herein. Notwithstanding anything contained herein to the
16 contrary, no party to this Agreement will be required to perform
17 or render any services hereunder, the performance or rendition of
18 which would be in violation of any laws relating thereto.
19 18. MODIFICATION: This writing is intended both as the
20 final expression of the Agreement between the parties hereto with
21 respect to the included terms and as a complete and exclusive
22 statement of the terms of the Agreement, pursuant to California
23 Code of civil Procedures section 1856 or its successor(s). No
24 modification of this Agreement shall be effective unless and until
25 such modification is evidenced by a writing signed by both
26 parties.
27 19. NOTICES: All notices and demands to be given under this
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1 Agreement by one party to another shall be given by certified or
2 united states mail, addressed to the party to be notified or upon
3 whom a demand is being made, at the respective addresses set forth
4 in this Agreement or such other place as either party may, from
5 time to time, designate in writing to the other party. Notice
6 shall be deemed to be effective on the day the notice is received
7 by GREAT WESTERN or the CITY.
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If to GREAT WESTERN:
GREAT WESTERN BANK
Deferred Compensation Department
19850 Plummer Street
Northridge, California 91311
If to CITY:
CITY OF SAN BERNARDINO
Finance Department
300 North "D" Street
San Bernardino, California 92418
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above written.
0J \~\,\ \ \\, n'i~
Date Signed
ATTEST:
Q~v.L ~
ci t'y Clerk
Approved as to
form and legal content:
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JAMES F. PENMAN,
26 City Attorney
27 By:
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