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CC Resolution No. 8593 \ / RESOUJrIW ID. 8593 A RESOUJrIW OF '!HE CITY CXXJNCIL OF THE CITY OF aJPERTm:) AD'lmRIzm; EXECUTIW OF DEFERRED <XMPEN8ATIW PL!\N ~ WI'lH GREAT WES'lERN BANK FOR ArMINIS'ffiATIW OF DEFERRED CXMPENSATIW PL!\N FOR PART-TIME: 8EASCNAL 'I»fPœARy EMPIDYEEs WHEREAS, an agreE5ænt ÌJet.T./een the City of Cupertino and Great Western Bank outlining the tenns and oanditions for administration of Deferred Cœpensation Plan for part-time seasonal taIpor<ny euployees has been presented to the City Council; and said agreE5ænt having been a¡:.proved by the City Manager and the City Attorney; NCM, 'lHEREFORE, BE IT RESOLVED, that the Mayor and the City Clerk are hereby authorized to execute the agr.::.,.uent herein referred to in behalf of the City of CUpertino. PASSED AND AIJOPI'ED at a regular meeting of the City Council of the City of CUpertino this 18th day of Fphrll~ry , 1992 by the following vote: vote Members of the Citv Council AYES: Dean, Goldman, Koppel, Szabo, Sorensen N:>ES: None ~: None ~: None APPROVED: /s/ Lauralee Sorensen Mayor, City of Cupertino ATlEST: /s/ Dorothy Cornelius City Clerk FICA - SUBSTITUTB DEFERRED COMPENSATION PLAN AGREEMENT This Agreement is effective this 1st day of March 1992, by and between GREAT WESTERN BANK, a Federal Savings Bank, hereinafter referred to as GREAT WESTERN, and the CITY OF CUPERTINO hereinafter 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 the performance of certain services 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. TERM: This Agreement shall remain in effect for a period of one year from the effective date hereof, and shall not be terminated prior to that time except for "Cause" as that term is hereinafter defined. For purposes of this Agreement, the term "Cause" 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 which shall specify the particulars of the default. If such default is not cured within sixty (60) days from the end of the month 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. For purposes of this Agreement, "Contract Year" shall mean the period of time between the effective date of the Contract, and the same day of the month in each succeeding year; the first Contract Year, however, shall be extended, if necessary in order to ensure that every Contract Year will end on the last day of a calendar month. Notwithstanding the above, this Agreement may be terminated by either party" with or without "Cause" as that term may be defined herein, upon the giving of ninety (90) days written notice to the other party. 2. FUNDING: AGENCY may fund this Agreement by forwarding participant deferrals to GREAT WESTERN at such times as it may see fit. 1 3. TERMINATION: upon the effective date of termination of this Agreement, other than for Cause as defined above, the following shall occur: a. GREAT WESTERN shall issue reports to AGENCY detailing the status of PLAN assets no later than twenty (20) business days after the end of the month in which termination becomes effective. b. AGENCY may request liquidation and withdrawal of PLAN assets. If termination is for Cause, GREAT WESTERN shall disburse those funds deposited in GREAT WESTERN, within thirty (30) days of the effective date of termination. If termination is due to non-renewal of this Agreement, GREAT WESTERN shall disburse those funds deposited in Great Western savings, not subject to penalty for early withdrawal, within ninety (90) days of the effective date of termination. 4. AGENCY agrees to: a. Cause appropriate deductions to be made from such payroll(s) as may be applicable. b. Send by check or wire transfer the amount of the total deductions to: Great Western Bank Deferred Compensation Department P.O. Box 6350 Northridge, California 91328 or to such other facility or in such other manner as may be mutually agreed upon between GREAT WESTERN and AGENCY. c. Provide, in such form as agreed upon by AGENCY and 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) GREAT WESTERN agrees to: d. Establish a sub-account for each participant. 2 e. Credit the amounts sent by AGENCY to the sUb-account(s) of the various participants. f. Funds invested in the option described herein as "GWBIA" will accrue interest as of the date of receipt by GREAT WESTERN. 5. RECORD KEEPING AND REPORTS: GREAT WESTERN agrees to furnish AGENCY, no later than twenty (20) days fOllowing the end of each month and each quarter a report regarding the status of the PLAN containing the following information: a. Each participant's name b. Each participant's Social Security Number c. Each participant's sub-account number d. Deposits credited to each sub-account during the period e. Withdrawals from each sub-account during the period f. Interest/Earnings credited to each sub-account during the period g. Total value of each sub-account h. Summary totals of the PLAN GREAT WESTERN agrees to provide quarterly statements to participants in the PLAN, no later than twenty (20) days following the end of each calendar quarter. Each statement shall identify the transactions which have occurred in the participant's sub-account at the beginning and the end of the preceding quarter. GREAT WESTERN agrees to maintain the records necessary to produce the above mentioned reports, and agrees that all records shall be the property of AGENCY and that, in the event this Agreement is terminated for any reason, GREAT WESTERN will provide AGENCY a copy of such records, 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. AGENCY agrees that all related computer tapes, discs and programs shall remain the property of GREAT WESTERN. GREAT WESTERN agrees that all information supplied to and all work processed or completed by GREAT WESTERN shall be held to be confidential and will not be disclosed to anyone other than AGENCY except as required by law. 6. DISTRIBUTIONS: Upon receipt of authorized written instructions from AGENCY, in such form and with such authorization as mutually agreed upon by GREAT WESTERN and AGENCY, GREAT WESTERN agrees to process the payment of benefits to participants and beneficiaries in accordance with PLAN. Distribution requests received by the last business day of the current month will be processed on or before the last business day of the following month. The above notwithstanding, GREAT WESTERN will cooperate with AGENCY to 3 not unreasonably delay distribution requests in conjunction with "emergency withdrawals", as defined in the PLAN. GREAT WESTERN agrees to withhold appropriate Federal and state income taxes, according to instructions set forth on form W-4 completed by the participant, to remit such withholdings to proper taxing authorities, and to issue net funds to participant(s) or beneficiary (ies) in accordance with instructions on the Distribution Request Form. GREAT WESTERN agrees to perform required monthly, quarterly and annual reporting of withholdings to appropriate taxing authorities. GREAT WESTERN agrees to issue appropriate annual wage and tax statements to those participants and beneficiaries who received distribution(s) during the preceding year and to retain a copy of such information on file for the period required by law. GREAT WESTERN agrees to provide AGENCY a monthly report of all disbursements made during the previous month. 7. INVESTMENT VEHICLES: GREAT WESTERN agrees to provide the herein described services for AGENCY with the following investment vehicles. Great Western Bank Indexed Account ("GWBIA"). The investment vehicle identified as GWBIA shall be savings accounts with GREAT WESTERN. Each such account shall be subject to rules, regulations and statutes to which GREAT WESTERN is subject, as promulgated by the Office of Thrift supervision (OTS), the Federal Deposit Insurance corporation (FDIC) and other such regulatory authorities. GREAT WESTERN agrees to accept PLAN funds for investment in GWBIA. PLAN funds will earn interest by whichever of the following methods results in the highest rate payable: (1) The rate of interest for all funds received during the term of the contract shall be the annualized yield obtained from the use of the over-the-counter rate quotation for the 90 Day United States Government Treasury Bill plus Twenty-five (25) basis points, in effect on the last business day of each calendar quarter. This effective annualized yield will be guaranteed for the succeeding calendar quarter regardless of any subsequent change in the 90 Day United States Treasury Bill yield. The current rate/yield is: Rate 4.16 % Yield 4.30 % (T.B.D. ) (2) Such other yield as declared by Great Western and shall 4 · not be lower than A.(l) above. Interest will accrue daily, using the 365/360 day method, will be credited monthly, on the last day of the month, and will be automatically reinvested to allow for monthly compounding. 8. ENROLLMENT SERVICES: GREAT WESTERN agrees to process, or arrange to have processed, the enrollment of eligible employees who 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. 9. TITLE AND OWNERSHIP: AGENCY shall at all times be the unrestricted owner of all PLAN assets, in accordance with IRC 457 provisions. 10. PRIVITY OF CONTRACT: GREAT WESTERN shall have no privity of contract with PLAN participants. GREAT WESTERN agrees not to accept or honor instructions which may be submitted by participants without written authorization from AGENCY. 11. FEES AND EXPENSES: GREAT WESTERN shall receive from CITY an administration fee equal to $.46 for each Plan "PST" participant account submitted each bi-weekly pay period. Such fee shall be paid to GREAT WESTERN by CITY at the time of submission of participant account data. No fees will be assessed until such time as the Agreement may be funded. 12. CIRCUMSTANCES EXCUSING PERFORMANCE: The performance by the parties to this AGREEMENT is subject to force ma;eure and shall be excused for the time and to the extent that it is prevented by fires, power failures, strikes, acts of God, restrictions imposed by government or governmental agency, or delays beyond the delayed party I s control. Failures of or defaults of participants, employers, or investment vehicles shall excuse performance by GREAT WESTERN of the duties affected thereby to the extent and for the time that it is prevented from performing them. 13. INDEMNIFICATION: Each party to this Agreement shall indemnify and hold the other party, its officers, agents and employees 5 .. 14. 15. 16. harmless from all damages, losses, costs and expenses, including attorney fees, amounts paid in settlement, judgments, and any other legal expense, arising from the negligence or wrongful conduct, whether negligent or intentional, of the indemnifying party or of its officers, employees or contractors. GREAT WESTERN shall not be liable for investment performance, except as expressly provided in this Agreement. ASSIGNABILITY: No party to this Agreement shall assign its rights or delegate its duties or responsibilities under this Agreement, or sub-contract any of its responsibilities hereunder, without the prior written approval of the other party. Such approval shall not be unreasonably withheld. Unless otherwise expressly stated in such approval by a party, any such assignment or delegation shall not relieve the assignor or delegator of any of its duties and obligations under this Agreement. 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. APPLICABLE accordance California. LAW: This Agreement shall be with the laws operating within construed in the State of 17. 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. 18. MODIFICATION: This writing is intended both as the final expression of the Agreement between the parties hereto with respect to the included terms and as a complete and exclusive statement of the terms of the Agreement, pursuant to California Code of civil Procedures 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. 19. NOTICES: All notices and demands 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 6 · either party may, from time to time, designate in writing to the other party. Notice shall be deemed to be effective on the day the notice is received by GREAT WESTERN or the AGENCY. If to GREAT WESTERN GREAT WESTERN BANK Deferred Compensation Department P.O. Box 6350 Northridge, California 91328 If to AGENCY CITY OF CUPERTINO 10300 Torre Avenue Cupertino, CA 95014 Attn: Barbara K. Brown IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective on the date first above written. AGENCY GREAT WESTERN BY, Q J ~ Vice President ......' "'.' B4Z;&~ DATESIG~ED:_¥~/ -z-- DATE SIGNED: ;;'-l(-q d- APPROVED AS TO FORM:" ~ CITY ATTORNEY 'Fe.t. ~ Ir¡~ L 7