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CC Resolution No. 6489 . . f, ; ' PLEASE RETURN TO CITY OF CUPERTINO RESOLiJTION N0. 6~189 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZI[~G EXECUTION OF AGREEMENT WITH GREAT WESTERN FOR DEFERRED COMPENSATION WHEREAS, there has been presented to the City Council an Agreement between the City of Cupertino and Great Western Savings and Loan Association regarding Deferred Compensation; and the terms and conditions of said agreement having been approved by the City Manager and the City Attorney; NOW, THEREFORE, BE IT RESOLVED that the Mayor and the City Clerk are hereby authorized to execute said agree~ent in behalf of the City of Cupertino. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this ~th day of February, 1985 by the following vote: Vote Members of the City Council AYES: Gatto, Plungy, Rogers, Sparks, Johnson NOES: No~ie ABSENT: None ABSTAIN: None APPROVED: /s/ Phil_ N. Johnson Mayor, City of Cupertino ATTEST: "fHl5 IS TO CERTIFY THA7 THE W'ITi-iIN /S/ DorOth~CoYnelius IP~STRUMENT ISATRUE AND CORRECTCOPY CltY Clerk ?F THE ORIGINAL ?N FILE iN TIilS OFFICE. `,i ATTEST /J , ~9~ CITY CLE ?F HE CITY ?F TINO ? ~ R~TURN TO CITY r~~ ~ _ OF CUPERTINO `~u G~"v~``~-f'~~-• 10300 TORRE AVE. CITY LERK GUPERTINO, CA 95014 • DEFERRED COMPENSATION PLAN AGREEMENT THIS AGREEMENT, made as of this 4th day of Fahrita , 1985 , by and between GREAT WESTERN SAVINGS, A FEDERAL SA~ AND LOAN ASSOCIATION, hereinafter referred to as "GREAT WESTERN", and CITY OF CUPERTINO, hereinafter referred to as "AGENCY". WHEREAS, AGENCY, pursuant to Resolution No. 6489 dated February 4, 1985 ~ has established a Deferred Compensation Plan, hereinafter referred to as "PLAN"; and WHEREAS, AGENCY desires to contract with GREAT WESTERN to perform certain services in the implementation and continuing operation of the PLAN; and WHEREAS, GREAT WESTERN desires to provide such services subject to the terms and conditions contained herein; NOW, THEREFORE, the AGENCY and GREAT WESTERN agree as follows: 1. TERM: This Agreement shall remain in full force and effect for five (5) years and shall not be terminated prior to that time except for "Cause" as that term is hereinafter defined. Thereafter, this Agreement shall continue in effect for successive periods of five (5) years unless either party gives written notice to the other, not less than ninety (90) days prior to the end of any term, of its intention not to renew the Agreement. For the purpose of this Agreement, the term "Cause" shall be defined to mean the failure of either party to perform any of its obligations under this Agreement. If this shall occur, the non-defaulting party shall give the defaulting party written notice, which shall specify the particulars of default. If such default is not cured within sixty (60) days, then the non-defaulting party shall have the right to terminate this Agreement for Cause by giving the defaulting party thirty (30) days written notice. Upon termination of this Agreement, the following shall occur: a. No new accounts shall be established. b. GREAT WESTERN shall issue reports to AGENCY detailing the status of PLAN assets no later than ten (10) business days after the end of the month in which termination occurs. 1 ~ c. AGENCY may request withdrawal of funds on deposit. If termination is for Cause, as defined herein, GREAT WESTERN shall disburse such funds within thirty (30) days of the effective date of termination. If termination is due to non-renewal of this Agreement, as defined herein, GREAT WESTERN shall disburse such funds upon request of AGENCY in amounts not less than twenty-five percent (25~) of the balance of such funds per quarter for four (4) quarters. GREAT WESTERN may, at its discretion, disburse such funds at a rate in excess of such minimum. This provision shall not apply to restrict withdrawal to meet disbursements made to participants pursuant to the Plan. 2. ENROLLMENT SERVICES: GREAT WESTERN agrees to conduct the enrollment of all eligible employees who elect to participate in the PLAN. GREAT WESTERN agrees to provide educational and promotional information for distribution to AGENCY's employees. AGENCY agrees to allow and facilitate periodic distribution of such information in conjunction with each employee's payroll. GREAT WESTERN agrees to conduct group presentations periodically for the AGENCY's employees to explain the PLAN. GREAT WESTERN agrees to provide educational and promotional information regarding the PLAN to employees in attendance at such presentations. AGENCY agrees to facilitate the scheduling and provide facilities at which satisfactory attendance can be expected. GR~AT WESTERN agrees to provide qualified personnel to be available periodically to discuss the PLAN with individual employees. GREAT WESTERN agrees that in performing the services provided for hereunder that it will conduct itself at all times with due regard to rules and regulations of the AGENCY ~nd further agrees not to commit any act that will unreasonably tend to degrade the AGENCY or bring it into public contempt or ridicule, or prejudice the maintenance of the good employee-employer relationship existing between the AGENCY and its employees. GREAT WESTERN agrees to retain qualified personnel on a continuing basis in order to perform the aforementioned services on a local level throughout the term of this Agreement. 3. DEFERRALS: GREAT WESTERN agrees to accept deposit input from the AGENCY on each payroll cycle in the form of either magnetic tape or listing. Each such listing or magnetic tape shall contain each participant's name, social security number, and the amount deferred. AGENCY agrees to perform the deductions to participating employee's payroll. GREAT WESTERN agrees to direct and coordinate the investment of funds in the investment vehicles herein prescribed. 2 DISTRIBUTIO~S: Upon receipt of written instructions approved by the AGE~CY, GREAT WESTERN agrees to direct and coordinate the payment of benefits to participants and beneficiaries, wi~hhold the appropriate federal and/or state taxes, remit aggregate withholdings to the appropriate taxing authorities as well as issue the net funds to the participant or beneficiary. In addition, GREAT WESTERN agrees to perform the necessary monthly, quarterly, and annual reporting on withholdings to the appropriate taxing authorities. GREAT WESTERN also agrees to issue the appropriate annual wage and tax statements to participants and beneficiaries receiving payments during a given year and to provide the AGENCY with a copy of this information. 5. RECORDKEEPING AND REPORTS: GREAT WESTERN agrees to furnish the AGENCY, monthly and quarterly, reports regarding the status of the PLAN containing, but not limited to, 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 participant's sub-account. e. Withdrawals debited to each participant's sub-account. f. Interest/Earnings credited to each participant's sub-account. g. Value of each participant's sub-account. h. Summary totals of the PLAN. GREAT WESTERN agrees to provide quarterly statements to participants in the PLAN. Each statement to a participant shall identify the detail transactions that have occurred to that sub-account for that period as well as the beginning and ending values of the participant's sub-account. GREAT WESTERN agrees to maintain the records necessary to produce the various required reports and that transactions will be performed in accordance with generally accepted accounting practices. GREAT WESTERN agrees that all records shall be the property of the AGENCY and that, in the event this contract is terminated for any reason, GREAT WESTERN will supply AGENCY these records within thirty (30) days subsequent to the termination date. AGENCY agrees that all computer tapes, discs, and programs shall be the property of GREAT WESTERN. GREAT WESTERN agrees that all information supplied to, and all work processed or completed by GREAT WESTERN will be held to be confidential and private and will not be disclosed to anyone other than the AGEKCY or those persons, corporations or governmental agencies who have a lawful right to such information. 3 6. INVESTMENT VEHICLES: GREAT WESTERN agrees to provide the herein prescribed services for the AGENCY with the following investment vehicles available within the PLAN. Great Western Savings (GWS) Investment Co. of America (ICA) Growth Fund of America (GFA) Bond Fund of America (BFA) GWS Certificate of Deposit Single Premium Immediate Annuity GREAT WESTERN may, from time to time, offer to perform the herein prescribed services for additional investment vehicles. Such investment vehicles shall be made available within the PLAN only upon the mutual agreement of all parties. The investment vehicle identified as Great Western Savings shall be savings account with GREAT WESTERN. Each such account shall be subject to the rules, regulations, and statutes to which GREAT WESTERN is subject, as promulgated by the Federal Home Loan Bank (FHLB), the Federal Savings and Loan Insurance Corporation (FSLIC), and other such regulatory authorities. GREAT WESTERN agrees to accept PLAN funds for investment in the savings option (GWS), bearing interest at a rate to be effective as of the first day of each calendar month, using whichever of the following methods result in the highest interest rate payable: A. The rate of interest determined on the last business day of each calendar month for 90-day money market rate accounts at GREAT WESTERN, with monthly compounding of interest. This rate will be guaranteed for the succeeding calendar month, regardless of any subsequent change in the 90-day money market rate accounts at GREAT WESTERN. B. The rate of interest in effect on the last business day of each calendar month equal to the 26-week U.S. Government Treasury Bill discount rate plus twenty-five (25) basis points, with monthly compounding of interest. This rate will be guaranteed for the succeeding calendar month, regardless of any subsequent change in the discount rate of the 26-week U.S. Government Treasury Bill. C. 10.00~ per annum, eompounded monthly for an annual effective yield of 10.62~. 4 GREAT WESTERN agrees to collateralize any amounts of the AGENCY's PLAN funds invested in the savings account option not subject to insurance of accounts by the FSLIC, adjusted . monthly, with first deed of trust on commercial, industrial, or residential property. The remaining outstanding principal balance of the collateral shall, in the aggregate, at all times equal or exceed 125% of the value of such uninsured funds. Funds invested in ICA, GFA, and BFA by the AGENCY will utilize GWF Securities Corp., a wholly owned subsidiary of Great Western Financial Corporation, as the broker/dealer for such transactions. GREAT WESTERN charges no administrative fees in connection with the mutual funds. Fund purchases are subject to sales charges as detailed in the prospectus. 7. TITLE AND OWNERSHIP: Title and ownership of all accounts established for the PLAN shall beheld in the name of the AGENCY's Deferred Compensation Plan. The AGENCY shall be sole custodial of and receive any passbooks, investment certificates or other evidence of ownership of the accounts established under this Agreement. GREAT WESTERN shall have no privity of contract with the participants of the PLAN. GREAT WESTERN agrees not to accept or honor any instructions that may be submitted by participants or to provide any information regarding account balances or transactions, without the permission of the AGENCY. 8. FEES AND EXPENSES: Except as provided for in this Agreement or as required by law or regulations, GREAT WESTERN agrees that it will make no charges to the AGENCY or to participants in the PLAN for any obligation performed pursuant to this Agreement. GREAT WESTERN further agrees to pay the expenses incurred as a result of its providing the herein preseribed services. 9. CIRCUMSTANCES EXCUSING PERFORMANCE: The performance by the parties of this Agreement is subject to force majeure and is excused by fires, power failures, strikes, ac~s of God, restrictions imposed by any government or governmental agency, or other delays beyond the delayed party's control or defaults by participants or employer. Failures of or defaults of participants, employers, or investment vehicles other than funds invested in Great Western Savings shall excuse performance by GREAT WESmERN thereby prevented. 5 • 10. INDEMNIFICATION: Notwithstanding any other provision to the contrary, GREAT WESTERN agrees that it shall be solely responsible to the_AGENCY for any and all services performed , by GREAT WESTERN or its employees under this Agreement. GREAT WESTERN shall be responsible for negligence committed by GREAT WESTERN or its employees, ineluding employees of GWF Securities Corp. The AGENCY shall be responsible for any error committed by the AGENCY or its employees. GREAT WESTERN shall not be liable for investment performance, except as expressly provided for within this Agreement. 11. ASSIGNABILITY: No party to this Agreement shall assign the same without the express written consent of the other party thereto, such consent not to be unreasonable withheld. Unless agreed to by the parties, no assignment shall relieve any party to this Agreement of any duties or liabilities hereunder. 12. 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. 13. APPLICABLE LAW: This Agreement shall be construed in accordance with the laws operating within the State of California. 1~. UNLAWFUL PROVISIONS: In the event any provision 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 is said illegal 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 perform or render any services hereunder, the performance or rendition of which would be in violation of any laws, rules, or regulations relating thereto. 6 15. CONFLICT OF INTEREST: At no time during the term of this ~ Agreement shall GREAT WESTERN, its officers, directors or employees have an conflict of interest which impairs GREAT WESTERN's ability to perform the duties and responsibilities under this Agreement. 16. NOTICES: Al1 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 may, 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. If to GREAT WESTERN: GREAT WESTERN SAVINGS P.O. Box 1085 Northridge, CA 91328 Attn: Municipal Programs If to AGENCY: CITY OF CUPERTINO 10300 Torre Avenue Cupertino, CA 9501~ IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the day and year first above written. AGENCY GREAT WESTERN APPRO ED T AR : „ - % C i~ B Y : EGAL COUNS L' CE RESIDF~ GREAT WESTE~ SAV N S (A FEDERAL AVINGtS- & LOAN ASSOCIATION) BY: AUTHORIZED OFFICER ATTEST: ~ ~ ; ~f ~ CQ_-1=-u.c-~ City Clerk 7