HomeMy WebLinkAbout1983-421
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RESOLUTION NO. 83-421
2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF AN AGREEMENT WITH GREAT WESTERN SAVINGS FOR SERVICES
3 AS ADMINISTRATOR OF THE CITY'S DEFERRED COMPENSATION PLAN.
4 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AS FOLLOWS:
5
6
SECTION 1. The Mayor of the City of San Bernardino is hereby
7 authorized and directed to execute on behalf of said City an
8 agreement with Great Western Savings for services as administrator
9 of the City's Deferred Compensation Plan, a copy of which is
10 attached hereto, marked Exhibit "A" and incorporated herein by
11 reference as fully as though set forth at length.
12 I HEREBY CERTIFY that the foregoing resolution was duly
13 adopted by the Mayor and Common Council of the City of San
14
Bernardino at a
regular
meeting thereof, held on
15
the 5th
December
, 1983, by the following vote,
day of
16 to wit:
AYES:
Council Members
Castanena
Hp;lly
17
HprT'l~T'InA'7
,
18
Harks. Ouiel. Frazier. ~+ri"klp':"
19
NAYS:
None
ABSENT:
None
..dJ;.?/U7~~,,0
/ City Clerk
The foregoing resolution is hereby approved t
/,7i day
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of
December
, 1983.
Approved as to form:
~~~~
City ttorney
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A G R E E MEN T
2
(Deferred Compensation Plan)
made as of the ~ 7,r;.. day of
3
THIS AGREEMENT is
A~
4
, 1983, by and between GREAT WESTERN SAVINGS, a
5
Federal Savings and Loan Association, hereinafter referred to as
6
"Great Western", and the CITY OF SAN BERNARDINO, a municipal
7
corporation, hereinafter referred to as "Agency".
8
WHEREAS, Agency, pursuant to Resolution No. 11817, has
established a Deferred Compensation Plan, hereinafter referred to
9
10
as "Planll; and
11
WHEREAS, Agency desires to contract with Great Western
12
exclusively to perform certain services in the implementation and
13
continuing operation of the Plan, including the responsibility of
]4
administering the Plan and serving as administrator of the Plan on
15
behal f of AgencY; 'and
16
WHEREAS, Great Western desires to provide such services
17
subject to the terms and conditions contained herein,
18
NOW, THERErORE, .the Agency and Great Western agree as
]9
follows:
20
1. Term. This agreement shall remain in full force and
21 effect for three years and shall not be terminated prior to that
22 time except for "cause" as that term is hereinafter defined.
23 Thereafter, this agreement shall continue in effect for successive
24 periods of three years each unless either party gives written
25 notice to the other, not less than ninety days prior to the end of
26 any term, of its intention not to renew the agreement.
27 For the purpose of this agreement, the term "cause"
28 shall be defined to mean the failure of either party to perform
.
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1 any of its obligations under this agreement. If this shall occur,
2 the non-defaulting party shall give the defaulting party written
3 notice, which shall specify the particulars of default. If such
4 default is not cured within sixty days, then the non-defaulting
5 party shall have the right to terminate this agreement for cause
6 by giving the defaulting party thirty days' written notice.
7 Upon termination of this agreement, the following shall
8 occur:
9
(a) No new accounts shall be established;
10
(b) Great Western shall issue reports to Agency
11 detailing the status of plan assets no later than ten business
12 days after the end of the month in which termination occurs;
13
(c) If the termination is'as a result of nonperformance
14 by Great Western, Great Western shall forward all funds within
15 thirty days of termination upon request of Agency. If the
16 termination is for any cause other than the failure of Great
17 Western to perform any of its obl.igations under this agreement,
18 Great Western shall disburse such funds upon request of Agency in
19 amounts not less than twenty-five percent (25%) of the balance of
20 such funds per three-month quarter, commencing within thirty days
21 of the notice of termination with full disbursement of funds not
22 less than thirteen months after the effective date of termination.
23
2. Enrollment Services. Great Western agrees to conduct
24 within sixty days the enrollment of all eligible employees who
elect to participate in the Plan. Great Western agrees to provide
25
,
I,
26 educational and promotional information for distribution to
Agency's employees. Agency agrees to allow and facilitate
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28 periodic distribution of such information in conjunction with each
2
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1 employee' s payroll.
2 Great Western agrees to conduct group presentations
3 ~ithin sixty days and periodically thereafter, and in addition to
4 be available for group presentations at least every three months,
5 for the Agency's employees, in order to explain the Plan. Great
6 Western agrees to provide educational and promotional information
7 regarding the Plan to employees in attendance at such
8 presentations. The Agency agrees to facilitate the scheduling and
9 provide facilities at which satisfactory attendance can be
10 expected. Great Western agrees to provide qualified personnel to
11 be available periodically to discuss the Plan with individual
12 employees.
13 Great Western agrees that in performing the services
14 provided for hereunder that it will conduct itself at all times
15 with due regard to rules and regulations of the Agency and further
16 agrees not to commit any act that will unreasonably tend to
17 degrade the Agency or bring it into public contempt or ridicule,
18 or prejudice the ma..i.ntenance of a good employee/employer
19 relationship existing between th~Agency and its employees. Great
20 Western agrees to retain qualified personnel on a continuing basis
21 in order to perform the aforementioned services on a local level
22 throughout the term of this agreement. In addition, Great Western
23 shall promptly meet with any participant contemplating retirement
24 or who has recently retired at the participant's request to
25 explain in detail the options and mode of payment, and the tax
26 implications regarding the various options and modes of payment
27 regarding the funds under Great Western's control.
28 Great Western agrees to accept deposit input from the
3
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1 gency on each payroll cycle in the form of either magnetrc tape
2 or listing. Each such magnetic tape or listing shall contain each
3 participant's name, social security number, and the amount
4 deferred. Agency agrees to perform the deductions to
5 participating employees' payroll. Great Western agrees to direct
6 and coordinate the investment of funds in the investment vehicles
7 herein described. Each subaccount shall be credited for deposit
8 on the day the payment is received by authorized Great Western
9 personnel.
10
3. Distributions. Upon receipt of written instructions
11 approved by the Agency, Great Western agrees to direct and
12 coordinate the payment of benefits to participants and
13 beneficiaries, withhold the appropriate federal and/or state
14 taxes, remit aggregate withholdings to the appropriate taxing
15 authorities as well as issue'the net funds to the participants or
16 beneficiaries. In addition, Great Western agrees to perform the
17 necessary monthly, quarterly and annual reporting on withholdings
18 to the appropriate ~axing authorities. Great Western also agrees
19 to issue the appropriate annual wage and tax statements to
20 participants and beneficiaries receiving payments during a given
21 year and to provide the Agency with a copy of this information.
22
4. Recordkeeping and Reports. Great Western agrees to
23 furnish the Agency, monthly and quarterly, reports regarding the
24 status of the Plan containing, but not limited to, the following
25 information:
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(a) Each participant's name;
27
(b) Each participant's social security number;
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(c) Each participant's subaccount number;
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1 (d) Deposits credited to each participant's subaccount;
2 (e) Withdrawals debited to each participant's
3 subaccount;
4 (f) Interest/earnings credited to each participant's
5 subaccount;
6 (g) Value of each participant's subaccount;
7 (h) Summary totals of the Plan.
8 Great Western agrees to provide quarterly statements to
9 participants in the Plan, mailed to the address designated on the
10 participation agreement form or to that address designated on the
11 latest address change notice filed with Great Western. Each
12 statement to a participant shall identify in detail all
13 transactions which have occurred to that subaccount for that
14 period as well as the beginning and ending values of the
]5 participant's subaccount.
16 Great Western agrees to maintain the records necessary
]7 to produce the various required reports in that transactions will
]8 be performed in accordance with generally accepted accounting I
19 practices. Great Western agrees that all records shall be the
20 property of the Agency, and that in the event this contract is
21 terminated for any reason, Great Western shall supply Agency these
22 records within thirty days subsequent to the termination date.
23 Agency agrees that all computer tapes, disks and programs shall be
24 the property of Great Western.
25 Great Western agrees that all information supplied to
26 and all work processed or completed by Great Western will be held
27 to be confidential and private and will not be disclosed to anyone
28 other than the Agency or those persons, corporations or
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1 governmental agencies who have a lawful right to such infOrmation.
2 Great Western shall notify Agency promptly of any subpoena or
3 other court process served upon Great Western seeking information
4 from Great Western concerning any subaccount.
5 5. Investment Vehicles. Great Western agrees to provide the
6 herein prescribed services for the Agency with the following
7 investment vehicles available within the Plan:
8 (a) Great Western Savings (GWS);
9 (b) The Investment Company of America (ICA);
10 (c) Growth Fund of America (GFA);
11 (d) The Bond Fund of America (BFA);
12 (e) An insurance vehicle as approved by Great Western
13 and Agency, with particular view toward providing a single premiurr
14 annuity as allowed at time of distribution as a mode of
15 distribution. The par,ties contemplate that Great Western
16 Financial Insurance Agency, not an affiliate of Great Western,
17 will provide this funding vehicle.
18 Great Western may, from time to time, offer to perform
19 the herein prescribed services for additional investment vehicles.
20 Such investment vehicles shall be made available within the Plan
21 only upon the mutual agreement of all parties.
22 The investment vehicle identified as Great Western
23 Savings shall be savings accounts with Great Western. Each such
24 account shall be subject to the rules, regulations and statutes tc
25 which Great Western is subject, as promulgated by the Federal HomE
26 Loan Bank (FHLB), the Federal Savings and Loan Insurance
27 Corporation (FSLIC), and other such regulatory authorities.
28 Great Western agrees to accept Plan funds for investmen
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1 in the savings account option, bearing interest at a rate to be
2 effective as of the first day of each calendar month, using
3 Nhichever of the following methods result in the highest interest
4 rate payable:
5 (a) The rate of interest determined on the last
6 business day of each calendar month for ninety-day money market
7 rate accounts at Great Western, with monthly compounding of
8 interest. This rate shall be guaranteed for the succeeding
9 calendar month, regardless of any subsequent change in the rate of
10 ninety-day money market rate accounts at Great Western;
11 (b) The rate of interest in effect from the last
12 business day of each calendar month for twenty-six week savings
13 accounts at Great Western, which are accounts indexed to the
14 twenty-six week U. S. Government Treasury Bill rate, with monthly
15 compounding interest. This .rate wIll be guaranteed for the
16 succeeding calendar month, regardless of any subsequent change in
17 the rate of twenty-six week savings accounts at Great Western;
18 (c) Ten percent (10%) per annum, compounded monthly for
19 an annual effective yield of 10.62%.
20 Great Western agrees to collateralize any amounts of the
21 Agency's plans invested in the savings account option not subject
22 to insurance of accounts by the FSLlC, adjusted monthly, with
23 first deeds of trust on commercial, industrial or residential
24 property. The remaining outstanding principal balance of the
25 collateral shall, in the aggregate, at all times equal or exceed
26 one hundred twenty-five percent (125%) of the value of such
27 uninsured funds.
28 Funds invested in lCA, GFA and BFA by the Agency will
7
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1 utilize GWF Securities Corporation, a wholly owned subsidlary of
2 Great Western Financial Corporation, as the broker/dealer for such
3 transactions.
4 6. Title and Ownership. Title and ownership of all accounts
5 established for the Plan shall be held in the name of the Agency's
6 Deferred Compensation Plan. The Agency shall be sole custodian of
7 and receive any passbooks, investment certificates, or other
8 evidence of ownership of the accounts established under this
9 agreement. Great Western shall have no privity of contract with
10 the participants of the Plan. Great Western agrees not to accept
11 or honor any instructions that may be submitted by participants
12 without consent of Agency; Agency agrees that Great Western may
13 provide any information regarding account balances or transactions
14 to participants at any time.
15 7. Fees and Expenses. Except as provided for in this
16 agreement or as required by law or regulations, Great Western
17 agrees that it will make no charges to the Agency or participants
18 in the Plan for any obligation performed pursuant to this
19 agreement. Great Western further agrees to pay the expenses
20 incurred as a result of providing the herein prescribed services.
21 Any brokerage fee authorized by an individual participant shall be
22 deducted from the participant's account.
23 8. Circumstances. Excusing Performance. The performance by
24 the parties of this agreement is subject to force majeure and is
25 excused by fires, power failures, strikes, acts of God,
26 restrictions imposed by any government or governmental agency, or
27 other delays beyond the delayed party's control or defaults by
28 participants or Agency. Failures of or defaults of participants,
8
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1 ~gency or investment vehicles shall excuse performance by Great
2 Nestern thereby prevented.
3
9. Indemnification. Notwithstanding any other provision to
4 the contrary, Great Western agrees that it shall be solely
5 responsible to the Agency for any and all services performed by
6 Great Western or its employees under this agreement. Great
7 ~estern shall be responsible for negligence committed by Great
8 Western, including Great Western Financial Corporation, GWF
9 Insurance Agency, and GWF Securities, Inc., or their employees.
10 IThe Agency shall be responsible for any error committed by the
11 Agency or its employees. Great Western shall not be liable for
12
/investment performance except as expressly provided for within
this agreement.
13
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10. Assignability. No party to this agreement shall assign
15 the same without the express written consent of the other party
16 thereto, such consent not to be unreasonably withheld. Unless
17 agreed to by the parties, no assignment shall'relieve any party to
18 this agreement of any duties or liabilities hereunder. Great
19 Western agrees to notify Agency of any change in the ownership of
20 the parent company, Great Western Financial Corporation, and of
21 any ownership change of Great Western Savings, the Federal Savings
22 and Loan Association itself, GWF Insurance Agency, or GWF
23 Securities, Inc., and further agrees to notify Agency in the event
24 that Great Western or any of its parents or affiliates obtains an
25 ownership interest herein of more than five percent (5%) in any of
26 the investment vehicles not herein identified as being affiliated
27 with Great Western. The change in ownership contemplated by this
28 paragraph is any change in ownership affecting twenty percent
9
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1 (20%) or more of the stock of Great Western, Great Western
2 ~inancial Corporation, GWF Insurance Agency, or GWF Securities,
3 Inc.
4
11. Assistance to Participants. Great Western acknowledges
5 that some participants of Agency presently have investment
6 vehicles with Pacific Fidelity Life Insurance Company and National
7 Investors Life Insurance Company. Great Western has no authority
8 to deal with Pacific Fidelity Life, and therefore agrees to
9 counsel with, but will not handle payments of participants to,
10 Pacific Fidelity Life Insurance Company. Great Western will
11 process payments on behalf of participants to National Investors
12 Life Insurance Company.
13
12. Consultation Re Prior Administration. Great Western and
14 Agency acknowledge that Agency has encountered some problems with
15 its prior administrator, and agree that after all dealings between
16 the City and its prior administrator have been terminated, and
17 full accounting has been made by the prior administrator, or is
18 refused, Great Western will confer with and provide advice and
19 consultation to Agency concerning the quality or performance of
20 the prior administrator, and will provide technical assistance to
21 Agency to assist Agency to determine whether Agency should seek
22 redress through the courts or otherwise.
23
13. Parties Bound. This agreement and the provisions
24 thereof shall be binding upon the respective parties and shall
25 inure to the benefit of the same and to their successors and
26 assigns.
27
14. Applicable Law. This agreement shall be construed in
28 accordance with the laws operating within the State of California.
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15. Unlawful Provisions. In the event any provisions of
2 this agreement shall be held illegal or invalid for any reason,
3 such illegality or invalidity shall not affect the remaining parts
4 of the agreement, but the same shall be construed and enforced as
5 if said illegal or invalid provisions had never been inserted
6 herein or therein. Notwithstanding anything contained herein to
7
the contrary, no party to this agreement will be required to
8
perform or render any services hereunder, the performance or
Irendition of which would be in violation of any laws, rules or
Iregulations relating thereto.
I
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I 16. Amendments.
Iduring the term hereof by the express mutual consent of the
parties. Express consent of Agency requires action by the Mayor
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This agreement may be amended at any time
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and Common Council of the City of San Bernardino.
15
17. Day-to-Day Dealings. Great Western acknowledges that
16 Agency's Deferred Compensation Advisory Committee is a committee
17 authorized by the Mayor and Common Council of Agency, and agrees
18 that such committee shall be consulted as to any problems which
19 occur on a day-to-day basis. Consultations with the Deferred
20 Compensation Advisory Committee shall be with copies to the City
21 Clerk and the Director of Finance of City, addressed to City of
22 San Bernardino, 300 North "D" Street, San Bernardino, California
23 92418. A separate copy of any correspondence or notice shall be
24 provided to both the City Clerk and the Director of Finance.
25
18. Notices. All notices and demands to be given under this
26 agreement by one party to another shall be given by certified
27 mail, addressed to the party to be notified or upon whom a demand
28 is being made, at the address set forth below, or such other place
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s either party may, from time to time, designate in writing. The
ate of service of a notice or demand shall be the receipt date on
any certified mail receipt.
Notices to Great Western:
Great Western Savings
Post Office Box 1085
Northridge, CA 91328
Attention: Municipal Programs
Notices to Agency:
Director of Finance
City of San Bernardino
300 North "0" Street
San Bernardino, CA 92418
City Clerk
City of San Bernardino
300 North "0" Street
San Bernardino, CA 92418
IN WITNESS WHEREOF, the parties have hereunto set their hands
and seals the day and year first above written.
ATTEST:
CITY OF SAN BERNARDINO
By
Approved as to form:
By
ce President
~~ht~J
City torney
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