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HomeMy WebLinkAboutReso 48-1977RESOLUTION NO, '48-77 CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION ADOPTING AN EMPLOYEES' DEFERRED COMPENSATION PLAN, AND APPROVING AGREEMENTWIT~ NATIONAL PLAN COORDINATORS, INC,, AND CENTRAL BANK, N. A, WHEREAS, the City of South San Francisco desires to provide an Employees' Deferred Compensation Plan, available to all full-time City employees upon execution of memorandum of understanding so providing, and · WHEREAS, said City desires to contract with National Plan Coordinators, Inc., to coordinate the Plan and with Central Bank, N. A. to administer the Plan; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San Francisco as follows' 1. Adoption of Pl~an The deferred compensation Plan, entitled City of South San Francisco ~Deferred Compensation Plan, a copy of which is attached hereto as Exhibit A, is hereby adopted and the City hereby consents to the Plan and Shall perform its functions as therein set forth. 2. Effective Date. The Plan shall be effective on Mag 4, 1977 , and shall apply to compensation earned after the effective date. 3. Participation. The City consents to the participation of any employee or officer, upon execution of a memorandum of understanding so providing, such participation to be in accordance with the participation agreement. 4. Agreement with Coordinator. The agreement between City and National Plan Coordinators, Inc., for services as Plan Coordinator is hereby approved and the Mayor is authorized to execute said agreement on behalf of the City with the City Clerk attesting his signature thereto. ~A copy of said agreement is attached hereto as Exhibit B. 5. Agreement with Administrator. The agreement between City and Central Bank, N. A,, for services as Administrator is hereby approved, and the Mayor is authorized to execute said agreement on behalf of the City with the City Clerk attesting his signature thereto. A copy of said agreement is attached hereto as Exhibit C. 6. City Manager's Authorization. The City Manager is authorized to imple- ment said Plan, upon approval thereof by the Internal Revenue Service, and execute any and all documents, and initiate all other procedures necessary therefor. 7. City Clerk. The City Clerk shall certify to the adoption of this Reso- lution and cause same' to be entered into the records of the City Council. I hereby certify that the foregoing 'Resolution was regularly introduced and adopted by the City Council of the City of South San Francisco at a regu7ar meeting held on the 4th day of May , 19 77, by the following vote' AYES, COUNCILMEN Richard A. Battaglia, William A. Borba, Emanuele N. Damonte, Terry J. Mirri and Leo Padr. eddii None None ATTEST: NOES, " ABSENT, " , I II ' T II 111 I T THIS PLAN WAS RESr~"IDED BY RESOLUTION NO. 85-77 AD'~".ED THE 15TH DAY OF JUNE, 1977, WH ICH RESOL. .ON ADOPTED A REVISED DEFERRED b./IPENSATION PLAN. EXHIBIT "A" DEFERRED COMP£NSAIION PLAN CITY OF SOUTH SAN FRANCISCO, CALIFORNIA SECTION 1. NAME' The name of this Plan is the City of South San Francisco, California, Deferred Compensation Plan (hereinafter referr'ed to as the Plan). SECTION 2. PURPOSE' The primary purpose of the Plan is to attract and hold personnel by permitting them to enter into agreements with the City of South San Francisco which will provide for deferral of payment of a portion of their current compensation until death, disability, retirement, ter- mination of employment, or other event as provided herein, in accord- ance with the provisions of Sections 53212 - 53214 of the Government Code of the State of California, and the applicable provisions of the Internal Revenue Code. SECTION 3. DEFINITIONS: For the purposes of this Plan certain words or phrases used herein will have the following meanings' 3.1 "Employer" shall be the City of South San Francisco 3.2 "Employee" shall mean all officers and full-time employees' of the City of South San Francisco. 3.3 "Participant" shall mean any employee designated as eligible by the City of South San Francisco who fulfills the requirements for enrollment and participation in the Plan. 3.4 "Participation Agreement" shall mean the agreement executed and filed by an employee with the employer pursuant to Section 4, in which the employee elects to become a participant in the Plan. , 3.5~ "Compensation" shall mean the total of all amounts which would be paid by the employer to or for the benefit of an employee (if he were not a participant in the Plan) for actual services for the period that he is a participant. 3.6 "Employment Period" means a period from July i through June 30, except that the first year of an employee hired in mid-period shall be the period beginning with the date of employment and ending on June 30. THIS PLAN WAS RESCINDED BY RESOLUTION NO. 85-77 ADOPTED THE 15TH DAY OF JUNE, 1977, WHICH RESOLUTION ADOPTED A REVISED DEFERRED COMPENSATION PLAN. 3.7 "Disability" means the inability of a participant to engage in his usual occupation by reason of a medically determinable phys- ical or mental impairment as 'determined by the employer on the basis of advice from a physician or physicians, SECTION 4, PARTICIPATION IN THE PLAN: 4.1 Each eligible employee may elect' to become a participant of the Plan and defer payment of part of his compensation by executing a written Participation Agreement and filing it wi th the employer no later than 'the day before the beginning of any employment period; or in the case of a new employee, not later than sixty (60) days after commencement of employment. 4.2 A Participation Agreement shall be effective for the first employ- ment period following its execution and filing, except when it is executed and filed by a new employee pursuant to Section 4.1, in which case it shall be effective for that part of the employment period following its execution and filing. In either situation, the Participation Agreement shall continue from period to period and remain in full force and effect unless terminated as provided in Section 4.3 below. 4.3 A participant may terminate his participation in the Plan and thereby terminate further deferral of his compensation by filing with the employer an 'executed written notice of termination at least thirty (30) days prior to effective date of termination. Once terminated, a former participant cannot rejoin the Plan during the employment period in which termination occurred; however, he may elect to become a participant in subsequent employment periods. No amounts shall be payable to an employee upon terminating his participation in the Plan unless otherwise due pursuant to Section 7. 4.4 A participant may select pursuant to Section 6, one or more invest- ment objectives provided that the amount deferred for each objec- tive equals or exceeds the minimum of not less than Ten Dollars ($10) per pay period. SECTION 5. DEFERRAL OF COMPENSATION: During each employment peri od in which the employee is a participant in the Plan, the employer shall defer payment of such part of his compensa- tion as is specified by the employee in the Participation Agreement which he has executed and filed with the employer. SECTION 6. ADMINISTRATION OF THE PLAN: 6.1 The employer shall administer or contract for administration and operation, of the Plan in accordance with its terms and shall deter- mine all the questions arising out of the administration, inter- pretation and application of the Plan, which determination shall be conclusive and binding upon all persons. An advisory committee may be designated by the City Manager to aid and assist the employer in so administering and operating the Plan. 6.2 The employer shall establish a deferred compensation fund to which all deferred compensation shall be .credited at such times as the compensation would have been payable to individual employees if not a participant of the Plan. Separate book accounts will be established for each employee participation Which will show all amounts of deferred compensation, investments made, shares acquired and earnings and gains on investments. Each book account will be valued at least quarterly. 6.3 On executing the Participation Agreement the employee shall desig- nate his investment objective prospectively only. The employer may invest amounts of deferred compensation in mutual fund shares, or interest deposits with a savings and loan company or banking institution, or investments with:a stockbroker, or life insurance and/or fixed/variable annuity contract with an insurance company, whichever in the employer's sole judgment will best achieve the employee's objectives. The employee's investment designations are in- tended to be an expression of mere investment preferences and do not obligate the employer to follow the employee's designations. The employer is the sole owner and beneficiary of all funds, invest- ments, or other assets under this Plan. 6.4 The employer may, but is not required to, invest deferred compensa- tion at least monthly in the investment vehicles provided for in this Plan All amou. nts of deferred compensation, whether or not invested by the employer shall at all timeS be and remain an asset of the employer. Any and all dividends, capital gains distribu- tions, interest or other income payable on any of the employer's investments of deferred compensation also shall be an asset of the employer. The employer shall have the sole right to vote any shares of stock which it may acquire by such investment. 6.5 Neither this Plan or any Participation Agreement nor any book account shall be deemed to create a trust or custodial account on behalf of or for the benefit of any participant of the Plan or his bene- ficiaries. No participant of the Plan or his beneficiaries shall have, by reason of the Plan, Participation Agreement, or book account, any secured or preferred interest in or to any assets of the employer. The employer shall have only a contractual obligation to pay the benefits due the participant under the Plan, solely from the defer- red compensation funds. SECTION 7 DISTRIBUTION OF BENEFITS' 7.1 Election - Each participating employee must elect the payout options and the payout periods for each event stated in Sections 7.2, 7.3, 7.4, and 7 5, at the time of signing each Participation Agreement. 7.2 Retirement - In event of retirement, the full benefits credited to the participant's book account plus or minus subsequent investment gains or losses, but less any Federal or State Income Taxes required e to be withheld~ shall be distributed to him in any one or more of the following ways; 7,2[a) In a lump sum. 7~2(ib) In monthly, quarterly,, semi-annual or annual installments over a'period not to exceed ten (10) years from date dis- tribution began or over a period established by the employer not greater than the life expectancy of the participant. Life expectancy shall be determined once by the employer, on the date of the initial installment~distribution. Install- merit distributions will be made in substantially equal pay- ments, but no payment shall have a value of less than (the smaller of) $50 or the balance credited to the participant's book account. 7.2(c) Postpone payments under 7.2(a) and (b) above until par- ticipant reaches his 55th, 60th, 65th or 70th birthday. Participant's book account balances may continue to be invested until--in the employer's sole judgment--cash is to be withdrawn for payment of benefits. Payment of benefits will commence on the first day of the third month following termination of employ- ment. Payment of benefits under Section 7.2(c) will commence on the 1st day of the month following participant's birthday. 7.3 Disability - In event of termination of e~mployment by reason of disability, distribution of benefits will be as provided in Section 7.2. 7.4 Other Termination - In event of termination of employment by reason other than those specified in Sections 7.2 and 7.3, then the full benefits credited to participant's book account plus or minus subsequent investment gains or losses, but less any Federal or State Income Taxes required to be withheld, shall be distributed to him in any one or more of the following ways: 7.4(a) In a lump sum. 7.4(b) In monthly, quarterly, semi-annual, or annual installments or substantially equal payments over a period not to exceed seven (7) years from date distribution began, but no payment shall have a value of less than (the smaller of) Fifty Dollars ($50) or the balance credited to the participant's book account. 7.4(c) Postpone payments under 7.4(a) and (b) above until partici- pant reaches his 50th, 55th, 60th or 65th birthday. The employee shall elect the method of distribution at the time of signing each Participation Agreement. The employer shall make e distribution by any of the foregoing methods or combinations thereof, Participant:s book account balances will continue to be invested until-,-in the employer's sole' judgment~-~cash is to be withdrawn for payment of benefits, Payment of benefits under SeCtion 7,4(a) and (b) will commence on the first day of the third month fol lowing termination of employment. ~ Payment of benefits under Section 7.4(c) will commence on the first day of the month following the participant's birthday. 7.5 Death - In the event of the death of any participant, either before or after termination of employment, then the full benefits credited to his book account, less any Federal or State Withholding Taxes required by law, shall be distributed to his beneficiaries in the manner designated in the participant's Participation Agreement. The employer shall in the case of Lump Sum payment make payment ninety (90) days after notification of death of the participant, in com- pliance with any State laws governing the payment of death benefits. 7.6 ~Financial Catastrophe - In the event of financial catastrophe affect- ing ~a participant where the withdrawal of funds would be necessary to prevent great hardship to the participant and the amount neces- sary to meet that financial catastrophe, and is not reimbursed by insurance, a participant may apply to the employer for such amount from the Plan prior to retirement or to termination of participant's employment wi th' the City. Examples of such need under the foregoing criteria may be cata- strophic illness, flood, fire, earthquake, death in the family, or disabling injury, or examples of similar import. Withdrawals for expenditures normally budgetable, such as down payment on a home or purchase of an automobile, or college expenses, will not be per- mitted. Any'amount so approved hereunder for withdrawal shall be paid to participant in a lump sum. The withdrawal shall be effec- tive at the later of the dates specified in the participant's application or the date approved by the employer. SECTION 8. EMPLOYER PARTICIPATION: Notwithstanding any other-provisions of this Plan, the employer may make additional deposits in the deferred compensation fund as additional com- pensation for the services rendered by the employee to the employer dur- ing an employment period, provided the employee has elected to have such additional compensation deferred, invested, and distributed, pursuant to ~this Plan, prior to the employment period in which the compensation will be earned. SECTION 9. NON-ASSIGNABILITY: To the fullest extent permitted by law, the interest of a participant in the contractual obligation of~ the employer, established by the Plan, shall not be assignable in whole or in part, directly or by operation Be nT! ii illlT] Jill I 1~ T Il' ill I Ir of law or otherwise~ in any manner and no right or interest of a par- ticipant in the employer's contractual obligation shall be liable for or subject to any obligation or liability of such participant. SECTION 10. MISCELLANEOUS: 10.1 Status of Participants - Neither the establishment of the Plan nor any modification thereof, nor the establishment of any book account nor the payment of any benefits, shal 1 be construed as giving to any participant or other person any legal or equitable right against the employer except as herein provided; and, in no event, shall the terms of employment of any employee or partici- pant be modified or in any way affected hereby. 10.2 Condition of Plan - It is a condition of this Plan, and each employee by participating herein expressly agrees, that he shall look solely to the general assets of the employer for the payment of any bene- fit to which he is entitled under the Plan. 10.4 Designation of Beneficiaries - Each participant shall have the right, by written notice to the employer, to designate beneficiaries to receive any benefit to which said participant may be entitled in the event of his death prior to the complete distribution of bene- fits. If no such designation' is in effect on a participant's death, his beneficiary shall be his estate or if no executor or administra- tor is appointed within six (6) months after the participant's death, the employer shall direct said benefits to be paid to the beneficiary or beneficiaries designated in his last will, or if there be no will, then to the heirs at law of the participant. SECTION 11. AMENDMENT AND TERMINATION: 11.1 The employer may at any time and from time to time modify, amend, or terminate the Plan in whole or in part (including retroactive amendments) or cease deferring compensation pursuant to the Plan, by delivering to each participant a written copy of such modifica- tion, amendment, or termination or of a notice that it ceased deferring compensation; provided, however, the employer shall not have the right to reduce or affect the value of any participant's book account or any rights accrued under the Plan prior to such modification, amendment, termination or cessation. 11.2 In the event of the termination of the Plan by the employer under Section 11.1, the value of all participant's book account may be distributed to the participants or their beneficiaries in lump sums on the sixtieth (60th) day after termination of the Plan, or any other manner as determined by the employer. SECTION 12. EMPLOYER NOT RESPONSIBLE: The employer may, but is not required to, invest funds held pursuant to agreements between participants and the employer in accordance with e the requests made by each participant at the time of enrollment or change in enrollment, prospectively only, The employer shall retain the right to approve or 'disapprove such investment requests. Any action by the employer i'n investing funds, or approving of any such investment of funds, shall not be considered to be either an endorse- ment or guarantee of any investment, nor shall it be considered to attest to the financial soundness or'the suitability of any invest- ment for the purpose of meeting future distribution of benefits as pro- vided in Section 7 or as otherwise provided in the Plan. The employer will endeavor to use reasonable care in the selection of an investment or approval of any investment request but neither the employer nor its officers and employees shall be liable to any participant or partici- pants'~ successors in interest for disappointing results or loss arising therefrom. e EXHIBIT B AGREEMENT FOR PLAN ' COORDINATOR CI]T¥ OF SOUTH] SAN.FRANCISCO DEFERRED COMPENSATION PLAN THIS AGREEMENT made and entered into this 4~th' day of ~a~ , 19 77, by and between the City of South San Francisco, a political subdivision of the State of California (hereinafter called City), and National Plan Coordinators, Inc. (hereinafter called Plan Coordinator)' RECITALS The City has adopted Resolution No. 45-77 dated ~a~ 4 19 77, authorizing the establishment of a Deferred Compensation Plan and an Agreement between City and Plan Coordinator, a copy of said Resolution which is attached hereto. It is the desire of the City to contract for the services of the Plan Coordinator to perform for the City certain functions in the implementation and continuing operation of the Deferred Compensation Plan relating to the dissemination of information to employees and the enrollment of employees in the Plan by highly qualified personnel; to aid in the collection and disbursement of monies to the appropriate funding media; and to assist the City in the drafting of amendments to the Plan and/or attendant agreements necessary thereto so that said documents meet applicable regulatory require- ments. It is the desire of the Plan Coordinator to provide the above services subject to the terms and conditions of this agreement. 1. TERM. The respective duties and obligations of the parties hereto shall commence on the date and year first above written. 2. PERFORMANCE OF SERVICES. Notwithstanding any other provision to the contrary, the Plan Coordinator agrees that it shall be solely respon- sible to the City for any and all services performed by it or its employees under this agreement. The Plan Coordinator is not liable, however, for in- vestment performance. 3. REVIEW DEFERRED COMPENSATION PLAN. The Plan Coordinator agrees to review the approved Deferred Compensation Plan and to assist in the prep- aration and submission of any attendant agreements, such as joinder agree- ments, necessary for the implementation of the Plan or the performance of its duties under the Plan. Such agreements will be prepared in accordance with the rules and regulations of the Internal Revenue Service. The Plan Coordinator agrees, from time to time, to advise the City of any changes in Federal or State rules and regulations that may affect the validity or feasibility of the Deferred Compensation Plan or its duties hereunder. The Plan Coordinator shall not be liable for the effect of any changes in Federal or State rules and regulations on the Deferred Compensation Plan. 4. ENROLLMENT SERVICES. The Plan Coordinator agrees to conduct the enrollment(s) of all employees who elect to participate in the Deferred Com- pensation Plan. The Plan Coordinator agrees to design and prepare a compre- hensive educational and merchandising program for distribution to City employ- ees. The Plan Coordinator agrees not to distribute the program until it has been approved by the City. The Plan Coordinator agrees to conduct group presentations for City employees to explain the Deferred Compensation Program. The Plan Coordinator agrees bq~at the personnel responsible for enrolling employees into the Defer- red Compensation Plan will possess whatever licenses are reqUired by law, e both State and Federal. The licensed personnel shall have extensive expe- rience in communi'cating the kinds of investment vehicles offered under the Plan. The Plan Coordinator will insure that qualified personnel are retained on a continuing basis to provide experienced financial assistance on a local basis throughout the term of this agreement so that participants or potential participants receive personal counseling. The Plan Coordinator agrees that in performing the services pro- vided for hereunder by itself or through a designee that it will conduct itself at all times with due regard to rules and regulations of the City and it further agrees not to do or commit any act that will reasonably tend to degrade the City or bring it into public contempt or ridicule or prejudice the maintenance of the good employee-employer relationship existing between the City and its employees. 5. COLLECTION AND DISBURSEMENT. The Plan Coordinator agrees that the Custodian Bank will receive all periodic payments from the City. 6. RECORD KEEPING AND REPORTS. The Plan Coordinator agrees to furnish the Administrator sufficient information to enable it to maintain records for each participating employee including, but not limited to, Social Secu- rity number, the specific amount of the participant's contribution, the allocation of the contribution to one or more funding media, the participant's beneficiary designation, and other pertinent data necessary for the efficient administration of each participant's account. 7. RESPONSIBILITIES OF CITY. A. The City agrees to provide assistance in setting up timetables for and providing facilities for group meetings of employees for distributing information about the Plan. , 3. II~l II III[TI 'n[[I I ~ i'll' ~ I I' B, The City .agrees to provide facilities to be used for counsel- ing and enrollment of employees. C, The City agrees to transmit on a timely basis any relevant information requested by the Plan Coordinator relating to each participating employee upon entry into the program and further agrees to transmit any information relating to changes in an individual participant's account. D. The City agrees to transmit 'on a timely basis any relevant information of a participant's withdrawal, termination or request for dis- tribution under the Plan, including the method and timing of any distribu- tion. E. The City agrees to provide payroll reduction procedures and facilities. F. The City agrees to provide information requested by the Plan Coordinator on a timely basis. City agrees to use its best efforts to assure the accuracy and completeness of all information provided. 8. COMPENSATION. The Plan Coordinator shall not charge for services performed under this Agreement. Any compensation for the performance of services under this Agreement shall be paid by the Funding Media. 9. EXPENSES. The Plan Coordinator agrees that the compensation provided for in paragraph 8 is full payment for all services to be performed pursuant to this Agreement and further agrees to pay all expenses incurred as a result of such services. 10. BROKER OF RECORD. National Plan Coordinators, Inc., or its designee hereby appointed as Broker of Record for all investment vehicles offered under this Deferred. Compensation Prog?am and is authorized to receive compen- sation (i.e., any and all commissions, renewals, service fees, and concessions) developed as a result of the sales of these investment vehicles. At the time 4. Ilil I! IIIill Jl II of the presentations to eligible employees in the course of the enrollment process~ but before execution of the partici'pation agreements~ the Plan Coordinator will provide City with a schedule of anticipated commissions, renewals, service fees and concessions from ~he funding media and thereafter a detailed annual accounting thereof. 11. TERMINATION. This Agreement shall continue in force for a period of three (3) years and will be renewed annually thereafter subject to termina- tion upon written notice ninety (.90) days prior to the next annual renewal date. If this Agreement is not renewed, the Plan Coordinator agrees to transfer to the City or to a successor Plan Coordinator designated in writing by the City, within ninety (90) days of the date of termination, all records and documents relating to the services provided hereunder.. 12. CIRCUMSTANCES EXCUSING PERFORMANCE. The execution by the parties of this Agreement is subject to force majeure and is contingent upon fires and power failures, strikes, accidents, and acts of God, weather conditions or restrictions imposed by any government or governmental agency, other delays beyond the delayed party's control or defaults by participants or employers. Failures of or defaults of participants, employers, associations or trustees shall excuse performance by the Plan Coordinator thereby prevented. 13. OWNERSHIP'OF RECORDS. The Plan Coordinator agrees that all records shall be the property of the City, that all computer tapes, discs and programs shall be the property of Administrator. 14. CONFIDENTIALITY. All information supplied to, and all work processed or completed by the Plan Coordinator (including outside processing, if any) will be held to be confidential and private and will not be disclosed to anyone 5~ Hil Il ll[[ll ~[ [I other than the City or those persons~ corporations or governmental .agencies who have a lawful right to such information under the terms of the Deferred Compensation Plan and then only after permission to release such information has been given by the City. 15. ASSIGNABILITY, No party to this Agreement shall assign the same without the written consent of the other party thereto, such consent not to be unreasonably withheld. Unless agreed to by the parties, no assignment shall relieve any party to this Agreement of any duties or liabilities here- under. 16. NOTICES. All notices and demands to be given under this Agreement by one party to another shall be given by certified mail, addressed to the party to be notified or upon whom a demand is being made at the respective addresses set forth 'in l~his Agreement or such other place as either party shall from time to time designate in writing. The date of service of a notice or demand shall be the receipt date on any certified mail receipt. 17. PARTIES BOUND. This Agreement and the provisions thereof shall be binding upon the respective parties and shall inure to the benefit of the same and to their successors and assigns. 18. APPLICABLE LAW. This Agreement shall be construed in accordance with the laws of the State of California. 19. UNLAWFUL PROVISIONS. In the event any provision of this Agreement shall be held illegal or invalid for any reason, said illegality or inval- idity shall not affect the remaining parts of the Agreement but the same shall be construed and enforced as if said illegality or invalid provisions had never been inserted herein or therein. Notwithstanding anything con- tained herein to the contrary, no party to this Agreement will be required to 5 Ilii II Illlll il [I perform or render any services hereunder~ the performance or rendition of which would be violative of any laws, rules or regulations relating thereto, 20. AMENDMENTS, This Agreement may be amended' in writing at any time during the term hereof by the mutual consent of the parties. IN WITNESS WHEREOF, the within parties have hereunto set their hands and seals the day and year first above written. CITY OF SOUTH SAN FRANCISCO ATTEST' Mayor By NATI~L PLAN COORDINATORS' INC. By e fill II [llll'] Il II a a~ EXHIBIT C AGREEMENT'FOR PLAN. ADM.I~N.!S.T...RA.TOR CITy' 0.~ SOUTI~. SAN FRANCISCO DEFERRED'COMPENSATI'ON PLAN THIS AGREEMENT made and entered into this 4th day of Ma~ , · , , 1977.~, by and between the CITY OF SOUTH SAN FRANCISCO, a municipal corpora- tion of the State of California (hereinafter called the City), and CENTRAL BANK, N. A., 301 20th Street, Oakland, California 94612 (hereinafter called Administrator): RECITALS The City is considering the adoption of a Deferred Compensation Plan and has passed Resolution No. 45-77 on Ma~ 4 , 1977 , authorizing this agreement with Administrator, subject to the adoption by the City of a Deferred Compensation Plan. It is the desire of the City to contract for the services of the Admin- istrator to perform for the City certain functions in the implementation and continuing operation of the Deferred Compensation Plan relating to the col- lection and disbursement of monies to the appropriate funding media; the implementation of accounting procedures and records for periodic reporting to the City and its employees; and to offer specimen forms of amendments to- the Plan and/or attendant agreements necessary thereto for review by City's legal counsel so that said documents meet applicable regulatory requirements. It is the desire of the Administrator to provide the above services sub- ject to the terms and conditions of this agreement. i TERM, The respective duties and obligations of the parties hereto shall commence on the date the City adopts a Deferred Compensation Plan. 2, ?'ERFOR~IANCE OF SERVICES., The Administrator, at its expense, shall have the right to designate an .agent of its choice to perform such services under this agreement as may be mutually agreed to between the Administrator and such ~agent, Notwithstanding any other provision to the contrary, the Administrator agrees that it shall, be solely responsible for any and all services performed by any subcontractor, assignee, or agent under this agree- · merit. 3. REVIEI~ DEFERRED COMPENSATION PLAN. The Administrator agrees to review the approved Deferred Compensation Plan and to prepare and submit to the City's legal counsel specimen forms for any amendments necessary thereto and to prepare and submit, to the City.any attendant agreements, such as joinder agreements, necessary for the implementation of the Plan or the per- formance of its duties under the Plan.' Such amendments to or agreements will be in accordance with the'rules, and regulations of the Internal Revenue Ser- vice. The Administrator agrees, from time to time, to bring to the City's attention any changes in Federal or State rules and regulations that may affect the validity or feasibility of the Deferred Compensation Plan or its duties under the Plan.' 4. INVESTMENT VEHICLES. A. The Administrator agrees to recommend, to the City which invest- ment alternatives may be made avail.able to employees participating in the Plan which shall include, but not' be limited to, bank accounts, fixed and/or variable annuities, mutual .funds, and/or other investments which are per- missible under the provisions of the Deferred Compensation Plan. .. B. The Administrator agrees, after the City has selected the invest- ment alternatives, to design the bid specifications and solicit investment pro- posals from the major prospective funding agencies. '~ '~ . 2. C. The Administrator .agrees to review~ evaluate and analyze all responses received from the investment .agencies and submit its findi.n§s and recommendations to the City. D, .The Administrator agrees, at least annually, to review, analyze and evaluate the performance and status of the selected funding media to§ether with their deferred compensation products and report to the City any recom- mendations concerning possible improvements in the investment contracts. E. The Administrator-agrees that it will review and evaluate the potential of new and relevant deferred compensation investment products and inform the City, from time to 'time, of the feasibility of including new -investment products under 'the Deferred Compensation Plan. 5. COLLECTION AND DISBURSEMENT. · A.· The Administrator, - if selected as the Custodian Bank, agrees to receive all periodic payments from the City equal to the amounts which, are deferred in accordance with the terms and conditions of the Deferred Compen- sation Plan, or any modification thereof. B. The Administrator as Custodian Banks agrees to distribute and credit such amounts tQ the'appropriate investment media within the time limitai~ions of.the respective investment contracts as designated by the 'City, or as provided for by the terms of the Deferred Compensation Plan and Participation .Agreement, or modifications thereof. C. The Administrator.as Custodian Bank 'agrees to process and remit all distributions of benefits directly to 'the City when required on instructions from the City under the terms of the respective investment con~ o. tracts in accordance with'the provisions of the Deferred ComPensati·on Plan. The distribution of benefits to participants shall comply with all applicable . ' III · I' State and Federal rules and r. egulations of the State or Federal taxing authorities: D: The Admini'strator on order of the City shall direct the Custo- dian Bank to purchase and liquidate all insurance and/or annuities, secu- rities, mutual funds, savings accounts~ or other investments-under the Deferred Compensation Plan in their capacity as Custodian Bank. 6. RECORD KEEPING AND REPORTS. A. The Administrator agrees that an individual file will be estab- lished for each participating.employee and contain information including, but not limited to, Social Security number, the specific amount of the participant's contribution, the al.location of .the contribution to one or more funding media, the participant's home.address, the participant's beneficiary designation, and other pertinent data necessary, for the efficient administration-of each par- ti ci pant' s account. B. The Administrator agrees to provide whatever data is required by the selected investment media to effect purchases from that investment media. C. The Administrator agrees to provide the processing, accounting, record keeping services, and' reports, in accordance with and at the time stated in the "Operations Manual" prepared by the parties and attached hereto as Exhibit "A." 7. CITY SERVICES. A. The City agrees to collect all deferred amounts from partici- pating employees' warrants and to remit said amounts 'within a reasonable period of time to the Administrator for appropriate distribution. B. The City agrees to transmit on a timely basis any relevant information requested by the Administrator relating to each participating 4~ employee upon entry 'into the pr. ogram and further .agrees to transmit any . . information relating to changes'in an ~ndividual participant;s account: C, The City agrees to transmit to the Administrator on a timely basis any relevant informatiOn of a partic'ipant'~s withdrawal, termination or request for distribution under the Plan including 'the method and timing of any distribution. 8. COMPENSATION. A. Administrator shall receive a sum not to exceed $.50 per pay period per participant from City for administrative expenses subject to Paragraph 8(b) below. The actual charge shall be based upon the total number of participants contributing or receiving distribution as of the last day of each pay period. This charge shall be increased by mutual consent of the parties if the City offers more than five investment'options, but in no event shall this charge be less than $~25 per investment per pay period for each participant for those investment options in excess of five. B. The aforementioned charge shall be reduced by any administra- tive subsidies paid by the funding media, any subsidies paid by Administrator for use of funds held temporarily in its capacity as Custodian Bank. Adminis- trator promises to use its best efforts to secure, administrative subsidies from £he funding media. C. At the time of the presentations to eligible employees' in the course of the enrollment process, but before actual execution of the partici- pation agreements, Administrator, or its designee shall explain that it will provide a detailed annual accounting of' all administrative subsidies to the Committee, and that said accounting'shall be available for employee inspec- tion. 5~ 9. EXPENSES, The Admi'nistrator .agrees that the 'compensation provided for in paragraph 8 is in full payment for all services to be performed pur- suant to this Agreement and further agrees to pay all expenses incurred as a result of such services except as expressly set forth in paragraph 11. 10. TERMINATION, This Agreement shall continue in force for a p~riod of three (3) years and may be renewed thereafter by mutual consent of the parties. This Agreement may be terminated at any time by City upon sixty (60) days' written notice for caUse. If this Agreement is not renewed or earlier terminated, the Adminis- trator agrees to transfer to the City or to a successor Administrator desig- nated in writing by the City within ninety (90) days of the date of termina- tion, all records and docum'ents relating to the services provided hereunder. The Administrator agrees to continue to hold and administer the accounts as provided herein until the transfer of the records and documents provided that the Administrator shall not be required or obligated to accept any pay- ments of deferred compensation from the City after the termination date. 11. LIABILITY. A. The Administrator agrees to indemnify the City, its officers and employees against liability for injury or damage caused by any negligent act or omission of any of the Administrator's employees or agents in the perform-- ance of this Agreement and shall hold the City harmless from any loss occa- sioned as a result of the Administrator's performance of this Agreement except and to the extent as. expressly hereinafter provided.- Administrator's agree- ment to indemnify shall not extend to any injury or damage which results from its reliance on information transmitted by the City. B. The Administrator shall not be liable for any damages, loss of data, delay or other loss caused by power failure, except that the Administrator agrees to reconstruct any records thereby destroyed, in whole or in part. 6. C: The City .agrees to use its; best efforts to insure the accu- racy of all data and' information furnished the Administrator through its designated representative and agrees to pay the reasonable expense incurred by the Administrator for additional processing required to'be performed by the Administrator as the result of erroneous data or information transmitted by the City to the Administrator. 12. CIRCUMSTANCES EXCUSING PERFORMANCE. The execution'by the parties of this contract is subject to force majeure and is contingent upon fires and power failureS, strikes, accidents, acts of God, weather conditions or restric- tions imposed by any government or governmental agency, other delays beyond the delayed party's control or defaults by participants or employers. Fail- Ures of-or defaults of participants, employers, associations or ~trustees shall excuse performance-by the Administrator thereby prevented. 13. OWNERSHIP OF RECORDS. The parties agree that all records, including written procedures and other supporting items shall be the property of the City; that all computer tapes, discs, programs and specifications shall be the property of the Administrator provided that City shall be entitled to print-outs therefrom; and the parties further agree that the City shall have a royalty-free, non-exclusive, and irrevocable license to reproduce, publish, use, and authorize others to do so, all writings, sound recordings, pictorial reproductions, drawings and other works of similar nature produced in the course of or ~under this Agreement. 14. INSPECTION OF RECORDS. The Administrator agrees to keep full and -- accurate records and accounts and shall follow the accounting methods and practices customarily employed in business of like character. All dealings and transactions relating to the performance of services hereunder shall be 7~ duly entered therein in the usual and ordinary course of business and the City~ or its duly authori'zed representatives, shall have full and free access to said records and accounts and may inspect the same at reasonable times during the normal business hours of the Administrator. 15. CONFIDENTrALIT¥, All information supplied to, and all work pro- cessed or completed by the Administrator (including outside processing, if any) will be held to be confidential and private and will not be disclosed to anyone other than the City or those persons, corporations or governmental agencies Who have a lawful right to such information under the terms of the Deferred Compensation Plan and. then only after permission to release such information has been given by the Ci.ty. 16. ASSIGNABILITY. No party to this agreement shall assign the same without the written consent of the other party thereto~ Unless agreed to by the parties, no assignment shall relieve any party to this Agreement of any duties or liabilities hereunder. 17. NOTICES. 'All notices and demands to be given under this~ Agreement by one party to another shall be given by certified 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 shall from time to time designate in writing. The date of service of a notice or demand shall be the receipt date on any certified mail receipt. 18. PARTIES BOUND. This Agreement and the provisions thereof shall be binding upon the respective ~ parties and shall inure to the benefit of the same-and to their successors and assigns. 19. APPLICABLE LAW. This Agreement shall be construed in accordance with the laws of the State of California. e Hll Il i Illl:] ~l[I 20. UNLAWFUL P,ROVISIONS, In the event any provision of this .Agreement shall be held ~:ll.egal or invalid for any reasons said illegality or invalid- ity shall not affect the remaining parts of the Agreement but the same shall be construed and enforced as if said ill.egality or invalid provisions had never been inserted herein or therein, Notwithstanding anything contained herein to the contrary, no party to this Agreement will be required to per- form or render any services hereunder, the performance or rendition of which would be violative of any laws, rules or regulations relating thereto. 21. AMENDMENTS. This Agreement may be amended in writing at any time during the term hereof by the mutual consent of the parties. IN WITNESS WHEREOF, the within parties have hereunto set their hands and seals the day and year first above written. ATTEST' CITY OF SOUTH SAN FRANCISCO Magor CENTRAL BANK, N. A. By 9, III'! II Tlllll il ri ! Il' "ll II I ri