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HomeMy WebLinkAbout17- Finance CITY OF SAN BERN DINO REQUEST F' R COUNCIL ACTION From: Barbara Pachon Subject: Deferred Compensation Plan for Parttime, Director of Finance Seasonal and Temporary Employees Dept: Finance . Date: December 2, 1993 Synopsis of Previous Council action: Resolution 91-493 approved December 19, 1991 Recommended motion: Approve attached resolution Signature Contact person: Barbara Pachon Phone: 384-5242 Supporting data attached: Staff Report Ward: FUNDING REQUIREMENTS: Amount: Source: (Acct. No.) Acct. Description) Finance: �'�QT�- / �-- Council Notes: 75-0262 Anonrin [tom Nn 17 CITY OF SAN BERM MINO - REQUEST F`4 COUNCIL ACTION STAFF REPORT Effective January 1, 1992 , the Omnibus Budget Reconciliation Act of 1990 subjects all service performed by State and Local Government employees, who are not members of a retirement system to Social Security Taxes. The Treasury Department has issued proposed regulations which permit participation in a Deferred Compensation Program (sec. 457) as an alternative to Social Security Taxes. To qualify, a Deferred Compensation plan is required to allocate at least 7 . 5 percent (7 . 5%) of an employee's annual compensation into his/her Deferred Compensation account. Currently the City of San Bernardino has an established Deferred Compensation Program for its employees who are not covered under the Public Employees Retirement System (PERS) . These employees include Parttime, Seasonal and Temporary employees (PST) . This program is a qualified program and is administered by Great Western Bank for the City. There are two changes in the new agreement with Great Western. The first change is that PST employees involved with the program will no longer have to pay a $1 monthly administrative fee. The second change is that the contract will continue indefinitely until either party gives 120 day written notice to terminate. '5-0264 I RESOLUTION NO. 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 PST 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 PST 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 meeting thereof, held on the day 15 of 199 , by the following vote, to wit: 16 17 Councilmembers AYES NAYS ABSTAIN ABSENT 18 NEGRETE 19 CURLIN 20 HERNANDEZ 21 OBERHELMAN 22 DEVLIN 23 POPE-LUDLAM 24 MILLER 25 26 City Clerk 27 28 1 2 The foregoing resolution is hereby approved this day of 1993 . 3 4 Tom Minor, Mayor 5 City of SaBernardino Approved as to form 6 and legal content: 7 JAMES F. PENMAN City At orney 8 By: 9 �� 9 By, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FICA - SDBBTITUTD DEFERRED COXPBNBATION PLAN AGREEXENT This Agreement is effective this lot day of December 1993 , by and between GREAT WESTERN BANK, a Federal Savings Bank, hereinafter referred to as GREAT WESTERN, and the CITY OF BAN BrMNARDINO, its officers, employees and agents, hereinafter collectively referred to as AGENCY. WHEREAS, AGENCY, pursuant to and in Compliance with Sections 3121(b) (7) (F) and 457 (b) of the Internal Revenue Code of 1986, has established a Deferred Compensation Plan, hereinafter referred to as PLAN; and WHEREAS, AGENCY desires to utilize GREAT WESTERN in connection with the administration of the PLAN; and WHEREAS, GREAT WESTERN desires to provide such services subject to the terms and conditions set forth herein; Now therefore, AGENCY and GREAT WESTERN agree as follows: 1. DESIGNATION: AGENCY hereby designates GREAT WESTERN as a Depository Institution and Administrator for deferred compensation funds invested in GREAT WESTERN. It is recognized and agreed that GREAT WESTERN will only maintain a FICA substitute Plan if GREAT WESTERN is administrator for AGENCY's 457 Plan. 2 . TERM: This Agreement shall remain in effect until it iS terminated by one or both parties in accordance with the provisions of this agreement. This Agreement may be terminated by either party, with or without "Cause" as that term may be defined herein, and without obligation, upon the giving of one hundred twenty (120) days' written notice by the party terminating the Agreement to the other party. 3 . DEFAULT: In the event the Agreement is terminated for "Cause" (which shall mean the failure of either party to perform any or all of its obligations as defined herein) , the non-defaulting party shall give the defaulting party written notice, specifying the particulars of the default. if such default is not cured within sixty (60) days from the date in which notice of default is given, the non-defaulting party may terminate the Agreement effective thirty (30) days after the end of the sixty (60) day period. 0 4 . INVESTMENT: GREAT WESTERN agrees to accept deferred compensation plan funds for investment in the Great Western Bank Liquid Account ("GWBLA") . (a) The rate/yield on the GWBLA account will be a variable rate, which may change as often as daily. (b) All participants with funds invested in the OwHLA, whether they are active, inactive, or in distribution, will earn interest at a rate/yield which is subject to change daily. (c) Interest earnings will accrue daily commencing on the date the funds are P981e4 (as defined below) to the Participant's account by GREAT WESTERN. Interest earnings will be credited monthly on the last day of the month, and will be automatically reinvested to allow for monthly compounding. The 365/360 day method will be used. (d) Each such account shall be subject to rules, regulations and statutes to which GREAT WESTERN is subject. (e) Plan funds invested in the GWBLA are backed by the full faith and credit of the U. S. Government and are also insured by the Federal Deposit Insurance Corporation, an agency of the Federal Government, up to $lo0, 000 per participant. Great Western will collateralize any amounts invested in the GWBLA in excess of FDIC insurance limits, if required, in accordance with applicable law. 5. ESTABLISHMENT OF ACCOUNTS: A. ENROLLMENT SERVICES: GREAT WESTERN agrees to process, or arrange to have processed, the enrollment of eligible employees. GREAT WESTERN agrees to provide informational and promotional material pursuant to the PLAN for distribution to employees of AGENCY, subject to approval of such material by AGENCY, such approval not to be unreasonably withheld. AGENCY agrees to allow and facilitate the periodic distribution of such material to employees. B. DEFERRALS: The minimum participant deferral per pay period shall be not less than $1. 00. 2 C. AGENCY agrees to: (a) Cause appropriate deductions to be made from such payrolls) as may be applicable and send the funds representing the total participant deferrals to GREAT WESTERN. (b) Provide to GREAT WESTERN, in such electronic or magnetic media designated by GREAT WESTERN, a deferral listing with respect to participant sub-accounts to include not less than the 1. Name of Participant 2 . Social Security Number of participant J . Amount to be credited to paiticipailt' 6 sub-accounts) (o) FU11Ub May Dw t:tfdnL Ly w.iLla LLaiiafuz , Lhruuyh dtl automated clearinghouse or by check in accordance with written instructions provided by GREAT WESTERN. Failure to follow the written 1ribLruuLluns provided by GREAT WESTERN may result in delay of Posting to Participant accounts. (d) Funds will be posted no later than the business day fcllcwina the day on which tho funds and the deferral listing are received by GREAT WESTERN. GREAT WESTERN will not be liable for any delay in posting if AGENCY fails to send either the funds representing d4farral amaunta by deferral information in accordance with GREAT WESTERN's 1iinL1uL_L1U115 LU Lhe L.e11L1a1 PIUl:PIb6111y 6i L6 designated by GREAT WESTERN. B. - GREAT WESTERN agrees to: (�) Eatahlish a sub-account for 4ach participant. (b) Credit the amounts sent by AGENCY to the sub-account of the various participants in accordance with the latest written instructions on file with GREAT WESTERN. 6. PARTICIPANT SERVICES: A. GREAT WESTERN will provide particIP&ntc quarterly statements detailing participant's year-to-date deferral amounts, account balance information that includes changes in account value since the previous report date 3 and any fees or charges (if any) assessed against the Participant account. Participants shall be informed that they must notify GREAT WESTERN within thirty (30) days of receipt of their statements or confirmation of their investments, to report any errors to GREAT WESTERN. GREAT WESTERN will not be liable for any errors not reported within this time frame. B. GREAT WESTERN agrees to mail 90% of these statements to participants within fifteen (15) business days after the and of each calendar quarter, and 100% of the statements to participants within eighteen (18) business days after the and of each calendar quarter. GREAT WESTERN will have no responsibility to report, or account for the accuracy of information applicable to periods prior to the effective date such Plan was administered by GREAT WESTERN. C. GREAT WESTERN will provide certain standard reports quarterly to AGENCY to enable AGENCY to effectively monitor all accounting and record-keeping processes. These reports will include combined data for an entire Plan. In addition, all services (where appropriate) will be provided in accordance with the attached Exhibit B. D. GREAT WESTERN agrees to maintain, for a reasonable time, the records necessary to produce the above mentioned reports, and agrees that all records shall be the property of AGENCY. AGENCY agrees that all related computer tapes, disks and programs shall remain the p rt> Arty of aRRAT wrATFRN_ 7 . DISTRIBUTIONS: A. GREAT WESTERN will assist the participant in preparing necessary forms to effectuate distribution. B. Participants will—receive a lump sum distribution of their account within ten (10) business days of the earliest date permitted by the Plan. C. GREAT WESTERN will be responsible for preparing and filing All rppnrtn required by federal and state taxing authorities through the effective date of the termination of the contract. AGENCY shall be responsible for all reporting requirements for periods prior to the effective date of this contract, or after the termination date of this contract. GREAT WESTERN will be responsible for the annual filing of individual 1099 or W-2 forms, unless by contract between AGENCY and an Investment Provider, the forms are prepared by the Investment Provider that provides annuity payments to participants. GREAT WESTERN 4 Q shall withhold income taxes from distributions as required, and remit said taxes to appropriate regulatory authorities. GREAT WESTERN shall also prepare and file periodic and annual tax returns for such amounts withheld. 8 . TERMINATION: Upon the effective date of termination of this Agreement, the following shall occur: a. GREAT WESTERN will no longer accept deferrals. b. GREAT WESTERN will provide AGENCY a copy of all records relating to participant sub-accounts, in hard copy or such other form as mutually agreed upon between GREAT WESTERN and AGENCY, within ninety (90) days after the effective date of termination. C. If termination is due to either party exercising the right of termination described in Section 2 above, within 90 days of the effective date of termination, GREAT WESTERN shall transfer savings accounts to AGENCY, or to such other entity as AGENCY may designate in writing. d. Notwithstanding any provision to the contrary, if termination is for Cause (as that term is herein defined) , the disbursement of funds shall occur within forty-five (45) days of the effective date of termination. e. There shall be a transfer/termination fee imposed on each participant account only when either the Participant or AGENCY elects a total Plan transfer or termination from the GREAT WESTERN Plan. The fee shall not exceed the lesser of $25. 00 per participant, or the amount permitted by applicable law or regulation. 9 . CONFIDENTIALITY: GREAT WESTERN agrees that all information supplied to and all work processed or completed by GREAT WESTERN shall be kept confidential and will not be disclosed except as required by law. 10. PRIVITY OF CONTRACT: GREAT WESTERN and Plan Participants shall have no privity of contract with each other. 11. TITLE AND oininnoIIir, In_naiuxAmnee iri6th lame pro-riei*n■ ti Internal Revenue Code Sections 457 and 3121 (b) (7) (F) , all account(s) established under this Agreement shall be held in the name of AGENCY. 5 12. CIRCUMSTANCES EXCUSING PERFORMANCE: Neither party to the Contract shall be in default by reason of failure to perform in accordance with its terms if such failure arises out of causes beyond reasonable control and without fault or negligence on their part. Such causes may include, but are not limited to, acts of God or public enemy, acts of the government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine or restrictions, freight embargoes, and unusually severe weather. 13. INDEMNIFICATION: GREAT WESTERN agrees to be solely responsible to AGENCY for any and all services performed by GREAT WESTERN, its agents or its employees under this Agreement. GREAT WESTERN shall be responsible for any error or negligence committed by GREAT WESTERN, its agents, or its employees. AGENCY shall be responsible for any error or negligence committed by AGENCY, its agents or its employees. 14 . ATTORNEYS' FEES: Each party agrees that in the event any claim or lawsuit is brought by anyone, each party shall be responsible for its own attorneys ' fees and/or any costs or expenses related to the bringing or defense of any such claim, arbitration, or lawsuit. 15. ASSIGNABILITY: No party to this Agreement shall assign the same without the express written consent of the other party, which Consent not to be unreasonably withheld. This provision shall not restrict GREAT WESTERN' s right to delegate certain recordkeeping or other services to an agent. Unless agreed to by the parties, no such assignment shall relieve any party to this Agreement of any duties or responsibilities herein. 16 . PARTIES BOUND: This Agreement and the provisions thereof shall be binding upon and shall inure to the benefit of the successors and assigns of the respective parties. 17 . APPLICABLE LAW: This Agreement shall be construed in accordance with the laws operating within the State of California. 1S. UNLAWFUL PROVISIONS: In the event any provisions of this Agreement shall be held illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining parts of the Agreement, but the same shall be construed and enforced as if said illegal or invalid provision had never been inserted herein. Notwithstanding anything contained herein to the contrary, no party to this Agreement will be required to perform or render any services hereunder, the performance or rendition of which would be in violation of any laws relating thereto. 6 19. MODIFICATION: This writing is intended both as the final expression of the Agreement between the parties and as a complete statement of the terms of the Agreement, pursuant to California Code of Civil Procedure Section 1856 or its successor(s) . No modification of this Agreement shall be effective unless and until such modification is evidenced by a writing signed by both parties. 20. NO WAIVER: The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver of that provision or of any other provision in the Agreement and either party may, at any time, enforce the provision previously waived, unless a modif ioation to this Agreement has been executed. 21. SEVERABILITY: The provisions of this Contract are severable, and, if for any reason a clause, sentence, paragraph, or other part of this Contract shall be determined to be invalid by a court or federal or state agency, board, or commission having jurisdiction over the subject matter thereof, such invalidity shall not affect other provisions of this Contract which can be given effect without the invalid provision. 22. NOTICES: All notices and demand to be given under this Agreement by one party to another shall be given by certified or United States mail, addressed to the party to be notified or upon whom a demand is being made, at the respective addresses set forth in this Agreement or such other place as either party may, from time to time, designate in writing to the other party. Notice shall be deemed received on the earlier of, three days from the date of mailing, or the day the notice is actually received by the party to whom the notice was sent. If to GREAT WESTERN GREAT WESTERN BANK Deferred Compensation Department 19850 Plummer Street Chatsworth, California 91311 Attn: Roy Leff If to AGENCY CITY OF SAN BERNARDINO 300 North I'D" Street, 4th F1. San Bernardino, CA 92418 qr IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective on the date first written above. I _ V OE SAN BVRNARDINO GRE T WRS'T'EM BY: BY: MAYOR VICE PRESIDENT DATE SIGNED: DATE SIGNED: APPROVED AS TO FORM AND LEGAL CONTENT 2 Y ATTORNEY 8