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1 RESOLUTION NO. /,;<~ 91
2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF AN AGREEMENT WITH MORGAN AND FRANZ, INC., RELATING
3 TO SERVICES AS PLAN ADMINISTRATOR UNDER THE CITY'S DEFERRED
COMPENSATION PROGRAM.
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BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
5 CITY OF SAN BERNARDINO AS FOLLOWS:
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SECTION 1. The Mayor of the City of San Bernardino is
authorized and directed to execute on behalf of said City an
agreement with Morgan and Franz, Inc., relating to the providing
of services as plan administrator under the City's Deferred
Conpensation Program, a copy of which is attached hereto, marked
Exhibit "I" and incorporated herein by reference as fully as
though set forth at length.
I HEREBY CERTIFY that the foregoing resolution was duly
adopted by the Mayor and Common Council of the City of San
Bemordino at ,-"/L "fi<"';;;;:':.t:j"'>'eeting "'oreof, held
on the /.,,/}!j day of _____, 1977, by the following
vote, to wit:
AYES:
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NAYS:
ABSENT:
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.* City lerk
hereby approved this ~day
of
The foregoing resolution is
-?J1(~ ,1977..
Approved as to form:
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Wtt;,71977-
LUCIU.E GOFORTH, ClIyClerk
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A G R E E MEN T
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(plan administrator - deferred compensation)
THIS AGREEMENT is made and entered into this ,/~ day of
Cfu/
, 1977, by and becween the CITY OF SAN BERNARDINO
5 a municipal corporation, hereinafter called "City", and Morgan
6 and Franz, Inc., 151 No. E Street, San Bernardino, California
7 92402, hereinafter "aIled "AdIJJin1strator".
8 WIT N E SSE T H:
9 WHEREAS, the City has adopted a Deferred Compensat10n Plan
10 by its Resolution No. 12604 and has received a private ruling
11 thereon from the United States Internal Revenue Service; and
12 WHEREAS, City desires to contract for the services of the
13 Administrator to perform certain functions for the implementation
14 and continuing operation of the Deferred Compensation Plan in-
15 eluding the collection and disbursement of monies for appropriate
16 investments and for the accounting therefor; the periodic report-
17 ing by Administrator to City and its participants in the Plan;
18 and the retention of competent, qualified, legal counsel for the
19 drafting of necessary amendments to the Plan and/or necessary
20 attendant agreements so that all documents meet applicable legal
21 requirements; and
22 WHEREAS, Administrator desires to provide the above
23 services in accordance with the terms and conditions of this
24 agreement,
25 NOW, THEREFORE, it is agreed as follows:
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1. Term. The term of this agreement shall be for a
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on ~A~.i/
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unless
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period of three (3) years commencing
and ending at midnight on ~7~
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EXHIBIT "I"
1 sooner terminated as hereinafter provided.
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2. Performance of Services. Administrator may designate
3 an agent of its choice to perform such services under this agree-
4 ment as Administrator determines. Notwithstanding anything con-
5 I tained in this agreement, Administrator shall be totally respon-
6 sible for any and all services performed by any such agent or any
7 subcontractor of Administrator.
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3. Review Deferred Compensation Plan. Administrator shall
9 retain and pay all costs and compensation for legal counsel to
10 review the Deferred Compensation Plan and to promptly prepare and
11 submit to City any necessary amendments and ancillary agreements.
12 Any such counsel so retained shall be a Certified Specialist in
13 Taxation so certified by the State Bar of the State of California.
14 Such amendments to or agreements prepared by said counsel will be
15 prepared in strict accordance with the legal requirements and
16 regulations of the United States Internal Revenue Service and the
17 Franchise Tax Board of the State of California. Administrator
18 agrees to promptly advise the City of any changes in Federal or
19 State laws, rules and regulations that may affect the validity or
20 feasibility of the Deferred Compensation Plan or of duties under
21 the Plan.
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4. Investment Vehicles.
A. Administrator shall recommend to City which in-
24 vestment alternatives may be made available to employees partici-
25 pating in the Plan which said alternatives shall include, but not
26 be limited to, bank accounts, fixed and/or variable annuities,
27 mutual funds, and/or other investments which are permissible under
28 the provisions of the Deferred Compensation Plan.
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1 B. Administrator shall, after City has selected the
2 investment alternatives, solicit investment proposals from the
3 major prospective funding agencies on a national basis.
4 C. Administrator shall review, analyze and evaluate
5 all responses received from the investment agencies and submit its
6 findings and recommendations to the City.
7 D. Administrator shall, on the annual anniversary date
8 of this agreement and at all other times requested by City, analyze
9 and evaluate the performance and status of all selected funding
10 media together with their deferred compensation investments and
11 report to the City all recommendations concerning possible improve-
12 ments in investment contracts.
13 E. Administrator shall review and evaluate the
14 potential of new and relevant deferred compensation investments
15 and inform the City, from time to time, of the feasibility of
16 including new investments under the Deferred Compensation Plan.
17 5. Collection and Disbursement.
18 A. Administrator shall receive all periodic payments
19 from the City equal to the amounts which are deferred in accord-
20 ance with the terms and conditions of the Deferred Compensation
21 Plan, or any modification thereof.
22 B. Administrator shall distribute and credit such
23 amounts to the appropriate investment media within the time
24 limitations of the respective investment contracts pursuant to
25 each employee's "investment specifications" as provided for by
26 the terms of the Deferred Compensation Plan, Participation Agree-
27 ment, and 'any modifications thereof.
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1 C. Administrator shall process and remit all distribu-
2 tions of benefits directly to the participants when required on
3 instructions from the City under the terms of the respective
4 investment contracts and in accordance with the provisions of the
5 Deferred Compensation Plan. The distribution of benefits to
6 participants shall comply with all applicable State and Federal
7 laws, and governmental rules and regulations.
8 D. Administrator shall direct the purchase and sale
9 of all insurance, annuities, securities, mutual funds, savings
10 accounts, or other investments under the Deferred Compensation
11 Plan in their capacity as Administrator in accordance with the
12 instructions of City.
13 6. Record Keeping and Reports.
14 A. Administrator shall establish and maintain an
15 individual file for each participant and maintain recorded there-
16 in all pertinent information, including but not limited to, the
17 participant's Social Security number, the specific amount of the
18 participant's contributions, the allocation of the contribution
19 to one or more investments by Participant, the gain and income
20 earned thereon, the participant's home address, the participant's
21 beneficiary designation, and all other relevant data that is
22 necessary for the administration of each participant's account.
23 Further, Administrator shall maintain all of said information
24 current and keep such information strictly confidential.
25 B. Administrator shall provide whatever data is re-
26 quimed by the selected investments to effect purchases of that
27 investment.
28 C. Administrator shall provide all processing,
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1 accounting, record keeping, and reports, in accordance with the
2 approval of the City.
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7. City Services.
A. City shall collect all deferred amounts from
5 participating employees' checks and remit said amount within five
6 I (5) days after collection to Administrator.
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B. City shall promptly transmit any necessary infor-
8 mation requested by the Administrator related to each participant,
9 and his or her account.
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C. City shall promptly transmit to Administrator any
11 necessary information concerning participant's withdrawal, termi-
12 nation or request for distribution under the Plan. Said trans-
13 mittal shall specify the requested method and timing of any
14 distribution.
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8. Compensation. Administrator shall not charge City or
16 any participant's account for Administrator's services performed
17 under this agreement. Any and all costs necessary to perform the
18 administrative services under this agreement shall be paid in
19 full by the Funding Media and Administrator.
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9. Expenses. Administrator agrees that the compensation
21 provided for in paragraph 8 is in full payment for all services
22 to be performed hereunder and further agrees to pay all expenses
23 incurred as a result of Administrator's services. Administrator
24 shall report and disclose to City promptly when requested by City,
25 a complete current accounting setting forth the exact nature and
26 extent of all compensation received by Administrator for his
27 services hereunder from any and all sources whatsoever.
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10. Termination. Either party to this agreement may
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1 terminate this agreement upon ninety (90) days advance written
2 notice to the other. Upon termination of this agreement, the
3 Administrator shall transfer to City or to a successor Adminis-
4 trator designated in writing by City within thirty (30) days of
5 the date of termination, any and all records and documents relat-
6 ing to the services provided hereunder. Administrator agrees to
7 continue to hold and administer the accounts as provided herein
8 until the transfer of the records and documents provided that the
9 Administrator shall not be required or obligated to accept any
10 payments of deferred compensation from the City after the termi-
11 nation date.
12 11. Liability.
13 A. Administrator hereby agrees to, and shall, hold
14 City, its elective and appointive boards, commissions, officers,
15 agents and employees harmless from any losses and liability for
16 damage or injury which may arise from any act, negligent act,
17 breach of duty or omission of Administrator or its employees or
18 agents in the performance of the provisions of this agreement and
19 shall hold the City harmless from any loss occasioned as a result
20 of the Administrator's, its agents', or employees' performance of
21 this agreement except as hereinafter expressly specified.
22 B. Administrator shall not be liable for any damages,
23 loss of data, delay or other loss caused by power failure, except
24 that the Administrator agrees to reconstruct any records thereby
25 destroyed, in whole or in part.
26 C. City shall use its best efforts to insure the
27 accuracy of all data and information furnished the Administrator
28 through its designated representative and agrees to pay the
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1 reasonable costs incurred by the Administrator for additional
2 processing required to be performed by the Administrator as the
3 result of erroneous data of information transmitted by the City
4 to Administrator.
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12. Insurance and Fidelity Bond. Administrator shall
6 maintain during the life of this agreement errors and omissions
7 insurance in the amounts of $100,000.00 for each act and
8 $300,000.00 for each occurrence insuring City, its boards,
9 commissions, officers, employees and agents against loss or
10 damages sustained by reason of any action or actions at law or
II in equity or any claim or demands by reason of any error or
12 omission which may arise from Administrator's operations here-
13 under whether such operations be by Administrator or by anyone
14 directly or indirectly employed by, or acting as agent for,
15 Administrator. Administrator shall take out and maintain during
16 the life of this agreement a fidelity bond in the amount of at
17 least $50,000.00 requiring the faithful discharge by Adminis-
18 trator of his duties under this agreement and the accounting of
19 all monies and properties that may come into his possession or
20 under his control under the operations of this agreement.
21 Administrator shall furnish City concurrently with the execution
22 hereof with satisfactory evidence of the insurance and fidelity
23 bond required and evidence that the carrier is required to
24 give City at least ten (10) days prior written notice of the
25 cancellation or reduction in coverage of any policy or bond
26 during the effective period of this agreement.
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13. Circumstances Excusing Performance. The performance
28 by the parties of the provisions of this agreement is subject to
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1 "force majeure" and is contingent upon fires and power failures,
2 strikes, accidents, acts of God, weather conditions or restric-
3 tions imposed by any government or governmental agency, defaults
4 by participants, other delays beyond the delayed party's control.
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14. OWnership of Records. The parties agree that all
6 records, including written procedures and other supporting items
7 shall be the property of the City; that all computer tapes,
8 discs, programs and specifications shall be the property of the
9 Administrator; that the City shall have a royalty-free, non-
10 exclusive, and irrevocable license to reproduce, publish, use,
11 and authorize others to do so, all writings, sound recordings,
12 pictorial reproductions, drawings and other works of similar
13 nature produced in the course of or under this agreement.
14 Administrator shall maintain all items hereinabove specified as
15 Administrator's property as confidential as herinafter provided.
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15.
Inspection of Records. Administrator shall maintain
17 full and complete and accurate records and accounts in accord-
18 ance with generally accepted accounting principles and procedures
19 and shall follow all rules, regulations and guidelines promulgate
20 and issued by the American Institute of Certified Public Account-
21 ants.
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16. Confidentiality. All information supplied to, and all
23 work processed or completed by the Administrator (including out-
24 side processing, if any) will be held to be confidential and
25 private and will not be disclosed to anyone other than the City
26 or those persons, corporations or governmental agencies who have
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I a lawful right to
Compensation Plan
such information under the terms of the Deferred
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and then only after permission to release such
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information has been given by the City.
17. Assignment. Administrator agrees not to assign this
agreement, or any part thereof, without first obtaining City's
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written consent.
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18. Entire Agreement. This agreement represents the
entire agreement of the parties.
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19. Amendment. This agreement may be amended or modified
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only by written agreements signed by both parties.
20. Notices. All notices herein required shall be in
writing and delivered in person or sent by certified mail,
postage prepaid, addressed as follows:
City of San Bernardino
300 North "D" Street
San Bernardino, CA. 92418
Morgan and Franz
Financial Services Dept.
151 North "E" Street
San Bernardino, CA. 92402
21. Agreement Applicable to Successors, Etc. This agree-
ment and the provisions thereof shall be binding upon the
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respective parties and shall inure to the benefit of the same
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and to their successors and assigns.
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22. Applicable Law. This agreement shall be construed in
accordance with the laws of the State of California.
23. Unlawful Provisions. In the event any provision of
this agreement shall be held illegal or invalid by a court of
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competent jurisdiction, said illegality or invalidity shall not
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affect the remaining parts of the agreement but the same shall
be construed and enforced as if said illegal or invalid pro-
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visions had never been inserted herein. Notwithstanding any-
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thing contained herein to the contrary, no party to this agree-
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ment will be required to perform or render any services hereunder
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1 where the performance or rendition thereof would be violative
2 of any valid laws, rules or regulations.
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24. Time of Essence. Time is of the essence of this
4 agreement.
5 IN WITNESS WHEREOF, the parties hereto have executed this
6 agreement on the date first hereinabove written.
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ATTEST:
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form:
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By
By.
Title . /rz,'~ >7
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