HomeMy WebLinkAboutCC Resolution 9000 (Great Western Bank Lease)RESOLUTION NO. 9000
A Resolution Authorizing the Signing of a
Contract, Lease or Agreement
THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES as follows:
The Finance Director is authorized to execute, on behalf of
the City of San Rafael, an agreement with
Great Western Bank (for the administration of the Deferred
Compensation Programa
a copy of which is hereby attached and by this reference made a
part hereof.
I JEANNE M. LEONCINI, Clerk of the City of San Rafael, hereby
certify that the foregoing resolution was duly and regularly
introduced and adopted at a Regular meeting of the City Council
of said City held on Tuesdav the 7th day of September ,
19 93 , by the following vote, to wit:
AYES: COUNCILMEMBERS: Breiner, Cohen, Shippey, Thayer & Mayor Boro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
ANNE M. LEO CINI, City Clerk
ORIGINAL ,9lve
DEFERRED COMPENSATION PLAN
ADMINISTRATION AGREEMENT
This Agreement is effective this 7th day of Seotem2er 1993, by
and between GREAT WESTERN BANK, a Federal Savings Bank, its
officers, employees and agents, hereinafter collectively referred
to as GREAT WESTERN, and CTTY np SAN RAFART.,
its officers, employees and agents, hereinafter collectively
referred to as AGENCY.
WHEREAS, AGENCY, pursuant to and in compliance with Internal
Revenue Code Section 457, 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.
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
COPY
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.
4. INVESTMENT OPTIONS: GREAT WESTERN agrees to accept deferred
compensation plan funds for investment in the following:
A. 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 GWBLA,
whether they are active, inactive, or in
distribution, will have interest credited to their
account at a rate/yield which is subject to change
daily.
B. The Great Western Bank Certificate of Deposit ("GWBCD")
(a) Certificates of deposit for terms of three (3)
years or five (5) years will be offered.
(b) The minimum certificate of deposit will be $2500.
A participant may purchase only one GWBCD for a
given term, each quarter.
(c) The interest rate will be a fixed rate during the
term of the certificate. The rate/yield for new
certificates will be set at the beginning of each
calendar quarter.'
(d) There will be an interest penalty of 180 days'
simple interest for early withdrawals. Death,
hardship and normal retirement distributions- are
exempt from the interest penalty. Separation from
service, plan -to -plan transfers, transfers to
alternate investments, or to other deferred
compensation providers will be subject to the early
withdrawal penalty.
The following will apply to the foregoing Savings Products:
(a) Interest earnings will accrue daily commencing on
the date the funds are costed (as defined below) to
'Pre-existing GWBCDs (certificates of deposit which were entered into
during a previous contract with GREAT WESTERN) will retain their original
maturity date and interest rate, but will be renewed under the terms described
above.
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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.
(b) Each such account shall be subject to rules,
regulations and statutes to which GREAT WESTERN is
subject.
(c) Plan funds invested in the GWBLA and GWBCD 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 $100,000 per participant.
Great Western will collateralize any amounts
invested in the GWBLA and the GWBCD in excess of
FDIC insurance limits, if required, in accordance
with applicable law.
C. Mutual Funds
(a) The mutual funds listed in Exhibit A will be
available to Plan Participants.
(b) Dividends will be automatically reinvested into the
mutual fund.
(c) Mutual Funds are not savings accounts, and are not
insured or guaranteed by any government agency or
by GREAT WESTERN.
(d) Sales charges may be imposed on mutual fund
investments by the mutual fund provider. These
charges will be disclosed in the prospectus and
would be separate from any fees or charges
described in this agreement.
D. GREAT WESTERN reserves the right to add or delete
investment options during the term of this agreement by
providing 30 days' written notice of such change to
AGENCY.
E. Participants will be permitted to change'their investment
options as often as they wish, however they shall be
subject to any applicable penalty or charge imposed for
such change.
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S. ESTABLISHMENT OF ACCOUNTS:
A. ENROLLMENT SERVICES: GREAT WESTERN agrees to process, or
arrange to have processed, the enrollment of eligible
employees who elect to participate in the PLAN. 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.
GREAT WESTERN agrees to conduct, or arrange to have
conducted, group presentations periodically for employees
of AGENCY, to explain the PLAN. AGENCY agrees to
facilitate the scheduling of such presentations and to
provide facilities at which satisfactory attendance can
be expected. GREAT WESTERN agrees that qualified
personnel will be made available periodically to discuss
the PLAN with individual employees of AGENCY.
B. DEFERRALS: The minimum participant deferral per pay
period shall be not less than $10.00.
C. AGENCY agrees to:
(a) Cause appropriate deductions to be made from such
payroll(s) 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
following:
1. Name of Participant
2. Social Security Number of participant
3. Amount to be credited to participant's
sub-account(s)
(c) Funds may be sent by wire transfer, through an
automated clearinghouse or by check in accordance
with written instructions provided by GREAT
WESTERN. Failure to follow the written
instructions provided by GREAT WESTERN may result
in delay of posting to Participant accounts.
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(d) Funds will be posted no later than the business day
following the day on which the 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 deferral amounts or deferral
information in accordance -with GREAT WESTERN's
instructions to the central processing site
designated by GREAT WESTERN.
(e) Authorize GREAT WESTERN to establish personal
identification numbers ("PINS") for each
participant and shall require Participants to use
such PINS to obtain certain services as designated
by GREAT WESTERN.
D. GREAT WESTERN agrees to:
(a) Establish a sub -account for each participant.
(b) Post and credit the amounts sent by AGENCY to the
sub-account(s) of Participants in accordance with
the latest written instructions on file with GREAT
WESTERN.
PARTICIPANT SERVICES:
A. GREAT WESTERN will provide a dedicated toll free
telephone number which shall be operative, Monday through
Friday 8 a.m.-5 p.m. Pacific time, each business day.
Using this number participants may: effectuate exchanges
of account values between Investment Options; process
changes to deferrals, and obtain information about
participant accounts. AGENCY authorizes GREAT WESTERN to
honor instructions which may be submitted by
participants. The actions described herein (and in B.,
C. and D. below) may be effectuated by telephone,
facsimile transmission or mail. If such service is
requested by telephone, Participant shall use his/her
PIN. Telephone conversations may be recorded to provide
confirmation and verification of transactions.
B. GREAT WESTERN will provide Plan participants unlimited
opportunities to increase (within limitations of Sec.
457) or decrease deferral amounts. All requests to
increase or decrease deferral amounts will be processed
by GREAT WESTERN within five (5) business days of receipt
of the request and will be effective as soon as
administratively practical by AGENCY.
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C. GREAT WESTERN will provide Plan participants unlimited
opportunities to redirect future deferral amounts to any
other Investment Product offered by the Plan. All
requests will be processed within five (5) business days
of receipt and be effective with the next following pay
period deferral.
❑. •GREAT WESTERN will provide participants unlimited
opportunities to exchange existing account balances from
one investment option offered by the Plan to another
(except for the limitation described in Section 4 above) .
Exchange requests for mutual funds will be processed with
the fund being "sold" by the date following the date
GREAT WESTERN receives such instructions and will be
effective in the new fund not later than the day
following GREAT WESTERN's receipt of funds from the
"sold" fund.
E. GREAT WESTERN will provide participants, if they request,
a fund prospectus and an annual report for each mutual
fund offered by the Plan.
F. GREAT WESTERN will provide participants consolidated
quarterly statements detailing participant's year-to-date
deferral amounts, account balance information that
includes changes in account value since the previous
report date and any fees or charges 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.
G. GREAT WESTERN agrees to mail 90% of these statements to
participants within fifteen (15) business days after the
end of each calendar quarter, and 100% of the statements
to participants within eighteen (18) business days after
the end 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.
H. 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. (Fees and charges assessed will be disclosed in
these reports.) In addition, all services will be
provided in accordance with the attached Exhibit B.
I. 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
property of GREAT WESTERN.
7. DISTRIBUTIONS:
A. GREAT WESTERN will assist the participant in preparing
necessary forms to select his/her distribution option.
B. Participants electing a payment of a lump sum amount will
receive distribution of their account within ten (10)
business days of the earliest date permitted by the Plan.
However, GREAT WESTERN shall initiate the processing of
all approved emergency/hardship requests upon receipt.
C. GREAT WESTERN will provide necessary forms and process
payments from the participant's account, to the company
selected by the Plan to provide annuity options to
participants. Participant will be required to submit
properly completed forms to GREAT WESTERN in a time frame
necessary to effectuate the "payment begin date"
requested by participant.
D. GREAT WESTERN shall offer to participants for
distribution of their account a designated amount payment
option. Payments shall be made on a monthly, quarterly,
semi-annual or annual basis as specified by the
participant, in equal installments (not less than $25.00
per payment) until the amount applied, adjusted each
business day for investment results, is exhausted.
The final installment will be the sum remaining at the
time such payment is due.
E. GREAT WESTERN shall also offer to Plan participants a
designated period payment option with a variable payment.
Payments shall be made monthly, quarterly or annually for
any specified number of years as permitted by the Plan,
at the discretion of the Plan participant. The amount of
each variable payment shall be determined by dividing the
Participant's current portfolio balance by the number of
remaining payments.
F. All payment options are available for all investment
options. Participants selecting the options in D or E
above shall be subject to the same fees and charges, and
permitted the same exchange opportunities, as an active
or inactive participant as defined by the Plan.
Processing of these options will be completed by GREAT
WESTERN upon receipt of properly completed forms, in a
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time frame necessary to effectuate the "payment begin
date" requested by participant of either the first or the
fifteenth of the month. All distributions will be made
pro -rata from each of the Participant's investment
options.
G. GREAT WESTERN will be responsible for preparing and
filing all reports 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
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 said amounts
withheld.
H. GREAT WESTERN agrees to provide plan participants
anticipating retirement or other separation from service
with illustrations indicating monthly benefit payments at
an assumed interest rate for savings accounts or an
assumed rate of earnings for mutual fund investments.
Such assumed interest rate or rate of earnings shall be
for illustration purposes only. The actual interest
rate/yield paid on savings products during distribution
shall change quarterly and shall always be as described
in Section 4 above. For mutual funds, earnings will be
those actually earned.
8. TERMINATION: Upon the effective date of termination of this
Agreement, the following shall occur:
a. GREAT WESTERN will no longer accept deferrals. In
addition, upon notification of termination, GREAT WESTERN
will cease opening GWBCDs.
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
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WESTERN shall transfer savings account balances (less any
early withdrawal penalty imposed on GWBCDs) to AGENCY, or
to such other entity as AGENCY may designate in writing.
GREAT WESTERN reserves the right to maintain GWBCDs until
maturity. Mutual funds will be transferred 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. Accounts in distribution will be transferred to AGENCY or
its designee in accordance with the time frame described
above.
f. The transfer/termination fee described below.
9. FEES AND EXPENSES: In consideration of its services under the
Plan:
Band
A. A fee will be charged by GREAT WESTERN. The
determination of the amount of the fee will be based upon
the Plan's total assets being serviced by GREAT WESTERN
("Total Plan Assets"). This fee will be applied to the
value of the Participant's non -savings investments for
which GREAT WESTERN is providing administrative services.
The fee will be calculated and assessed on applicable
Participant accounts balances on the last day of each
month. The fee categories or "bands" are as follows:
Total Plan
Assets
Annual
Fee
Monthlv
Fee
1 $ 0 - $999,999
.80%
.0666%
2 $ 1,000,000 - $ 4,999,999
.45%
.0375%
3 $ 5,000,000 - $ 9,999,999
.34%
.0283%
4 $10,000,000 - $19,999,999
.30%
.0250%
5 > $20,000,000
.28%
.0233%
B. The band assignment for the first quarter of this
contract will be based upon the reasonable, good faith
representation AGENCY makes to GREAT WESTERN about the
dollar amount of the AGENCY Is Total Plan -Assets (savings
and non -savings options). If services commence during
the first 60 days of a calendar quarter, AGENCY shall
have until the last day of that calendar quarter to reach
the dollar level to support the band assignment. If
services commence during the last 30 day's of a calendar
quarter, AGENCY shall have until the last day of the next
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following calendar quarter to reach the dollar level to
support the band assignment. If at the end of the stated
calendar quarter, the actual dollar amounts of Total Plan
Assets are different from the amount represented by
AGENCY, then AGENCY shall be placed into the band which
reflects the actual Total Plan Assets. The fee for the
first month of this contract will be prorated for the
number of days in the month for which services are
provided.
C. Before AGENCY shall be subsequently placed into another
band, AGENCY's Total Plan Assets must be of a dollar
amount to justify the change at the end of two
consecutive quarters.
D. AGENCY may cause its fee to be reduced by using automated
transmission of participant and deferral information.
This transmission must be in a format designated by GREAT
WESTERN. Use of this option will reduce the annual fee
by .01%. When available, AGENCY may also reduce its fee
by use of the automated voice response system. Use of
this option will reduce the annual fee by .01%.
E. GREAT WESTERN will deduct the fee from each Participant
sub -account at the end of each month. Except for the
first month of this contract, fees will be assessed
against the Participants sub -account commencing with the
first month of this contract.
F. There shall be a Transfer/termination fee not to exceed
$25.00 per participant, only when either the individual
participant or AGENCY elects a total Plan transfer or
termination from the GREAT WESTERN Plan. In any other
situation, no fee shall be assessed. In addition, this
fee shall not be assessed if this contract is terminated
by AGENCY for cause.
G. The fees associated with each band will remain in effect
until June 30, 1996 (unless the contract is terminated
sooner by either party). Any change shall be effective
30 day's after written notice is provided to AGENCY.
10. 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.
11. PRIVITY OF CONTRACT: GREAT WESTERN and Plan Participants
shall have no privity of contract with each other.
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12. TITLE AND OWNERSHIP: In accordance with the provisions of
Internal Revenue Code Section 457, all account(s) established
under this Agreement shall be held in the name of AGENCY.
13. 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.
14. 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.
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.
18. ARBITRATION: Any dispute which arises between the parties
with respect to any of the terms of this Agreement, whether
such dispute arises during the term of the Contract and any
extension period, or after the termination, shall be resolved
through binding arbitration. Arbitration shall be conducted
in accordance with commercial rules of either the American
Arbitration Association ("AAA") or the Judicial Arbitration
and Mediation Service ("JAMS"). Each party agrees to waive
its right, if any, to a jury trial and punitive damages. Each
party shall bear its own costs, including attorney fees,
related to the arbitration proceedings.
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19. 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.
20. 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.
21. 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 modification to this Agreement has
been executed.
22. 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.
23. 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.
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If to GREAT WESTERN
If to AGENCY
GREAT WESTERN BANK
Deferred Compensation Department
19850 Plummer Street
Chatsworth, California 91311
Attn: Roy Leff
Attn:
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective on the date first written above.
AGENCY
BY TREASURER:
BY FINANCE DIRECTOR:
r .
DATE SIGNED:
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GREAT WESTERN
I ;
BY: -�
VI E -PRESIDENT -i
(�- I 1. \ !
G W
DATE SI ED:
EXHIBIT A
AMERICAN FUNDS GROUP
Bond Fund of America
Growth Fund of America
Income Fund of America
Investment Company of America
TWENTIETH CENTURY INVESTORS
Balanced
Growth
Select
Ultra
SIERRA TRUST FUNDS
Corporate Income Fund
Emerging Growth
Growth & Income
International Growth
Short Term Global Government Fund
U.S. Government Fund
FIDELITY FUNDS
Equity -Income
Growth & Income
Magellan
Puritan
Retirement Growth
PAZ WORLD FUND INC.
Pax World Fund