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Home My WebLink About25J - AGMT - DEFERRED COMPREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 2, 2014 TITLE: UPDATE AGREEMENT WITH GREAT -WEST FOR 457 DEFERRED COMPENSATION SERVICES WITH SUPPORTING FIDUCIARY PROFESSIONAL SERVICES gV 4 (- CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on1"Reading ❑ Ordinance on 2ntlReading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER 1) Authorize the City Manager and Clerk of the Council to execute the attached agreement update with Great -West Financial for deferred compensation services for a period of one -year with provision for a one -year extension, subject to non - substantive changes approved by the City Manager and City Attorney. 2) Approve execution of attached professional services agreement with Benefit Funding Services Group, Inc. (BFSG), for Deferred Compensation Plan Financial Advisory Services for three -year period, expiring September 3, 2017, in an annual amount of $20,000; subject to non - substantive changes approved by City Manager and City Attorney. 3) Approve execution of attached professional services agreement with Fiduciary Experts LLC, for Plan Participant Education and Fiduciary Services for a period of one -year, expiring September 3, 2015 not to exceed $5,000; subject to non- substantive changes approved by City Manager and City Attorney. DISCUSSION The City of Santa Ana's full -time employee 457 Deferred Compensation Plan (Plan) was established in 1973, with the adoption of City Resolution 7 -21, with US Internal Revenue Service approval. The 457 Plan is a voluntary deferral program that is separate and distinct from the CalPERS pension system. The establishment of this deferred compensation plan, pursuant to regulations in §457 of the Internal Revenue Code, provides participants the opportunity of supplementing their CalPERS retirement by allowing them to defer a portion of their current earnings and associated taxes until retirement or separation. The Plan is administered through the Finance & Management Services Agency. Currently, the Plan has over $104 million in participant assets, with 1,210 participants. The Plan fund portfolio maintains 23 different investment options, including mutual fund, bond fund and fixed asset funds. The City retained the services of Benefit Funding Services Group (BFSG), to analyze the 25J -1 Update Agreement with Great West September 2, 2014 Page 2 City's Plan policy, investments and service levels. BFSG indicated that there were opportunities to improve upon the fee and service structure provided. As a result, City Finance staff in conjunction with BFSG and Fiduciary Experts has been negotiating with Great -West on changes to the plan structure that would promote greater fund transparency, better access, lower fees, and varied investment options for plan participants. Fiduciary Experts LLC, researched opportunities to restructure from the current annuity -based contract. The new agreement, will allow for a greater expansion of fund selection flexibility than provided under the current annuity -based contract. In addition, and most importantly it provides for significantly reduced management, fund, and participant fees that will provide for an annual reduction of approximately $223,000. As an example, a portion of these fees can be used to pay for fiduciary advisory fees and offset staff administrative costs. For example, average 457 account balances with $84,000 may experience savings of $184 per year. Some of the key Plan and participant benefits are: Plan Item Past Update Reduction in Plan 35 Basis Points 10 Basis Points Provider Fees Significance Significantly lower service fees to participants Allows Plan to provides Portfolio Structure Annuity -Based Open Architecture Participants fund options from the universe of institutional funds • ... -- - - - - -. ..... Index, No -Load Not Contractually Provides greater participant and Target Funds Available Available choices, reduced fees, and Plan portfolio flexibility Website Generic "City of Santa Ana" City controls website design Branded Portal and communications Beneficiary Participant can directly enroll Paper Driven Digital Process via Designation, and processing Web Access and update changes via Enrollment branded portal website 2417 In addition, all 457 Plans are required to perform and fully document plan monitoring, analysis, plan provider and fund selection, investment recommendations, and reporting using portfolio and fund -level based evaluation methodologies. Plan and fund -level detailed quarterly and annual reports are the required fiduciary foundation for proper plan management, required plan participant education, and transparency as guided by federal statutes. 25J -2 Update Agreement with Great West September 2, 2014 Page 3 Benefit Funding Services Group (BFSG), a retirement plan and investment consulting firm, will assist as a fiduciary in the update transition from the current structure with the Plan Provider to the new modern fund portfolio structure and assist in monitoring plan asset fund transfers and deposits. Fiduciary Experts LLC, will provide important strategic communications for the update agreement transition including plan participant education and other advisory services within the contract period to the City's 457 Deferred Compensation Plan. Upon Council authorization, the Plan will begin the process of updating from the current annuity - based agreement to a modern fund portfolio structure and include new federal consumer protections statues for managing 457 Plan assets. This will include digitization of City -held beneficiary documents via the new access portal. The transition will be accompanied with a comprehensive communications campaign including multi -site meetings, and individual and retiree appointments to insure employees are informed on the transition to the updated 457 agreement. The update is a foundational stage shifting from annuity -based to transparent market performance metrics prior to release of a Request for Proposal (RFP) within the term of this agreement for all- inclusive 457 Plan Provider services. The intent of that RFP will be to gauge what the 457 plan provider market can offer to the City in additional Plan benefits and quality of services. Upon conclusion of the transition, BFSG and Fiduciary Experts LLC, will evaluate the market and assist staff to in the development of the RFP and subsequent selection process. STRATEGIC PLAN ALIGNMENT Approval of this item is correlated to Goal #7 Team Santa Ana, Objective #4 (Establish employee compensation that attracts and retains a highly qualified workforce). FISCAL IMPACT There is no fiscal impact associated with this action as funds come from fees based on Plan assets. There is a net reduction in overall costs to participants and the Plan due to lower service fees to the plan provider vendor. Internal Revenue Code substantiates administrative reimbursement from plan assets that assist to offset actual fiduciary advisory, participant education and staffing costs related to the 457 Plan. �4� �eFranciscG t� Executive Director Finance and Management Services Agency ED Exhibits: 1. Agreement with Great -West Financial 2. Agreement with Benefit Funding Services Group, Inc. 3. Agreement with Fiduciary Experts LLC 25J -3 25J -4 Important Note: Services Agreements and all other contractual documents must be duly executed by both parties prior to the contract effective date. Backdating of contracts or funding agreements is in violation of our corporate governance and regulatory requirements. Plan assets cannot be accepted prior to the date all documents are fully executed, even if that requires the effective date to be postponed. There are no exceptions to the rule that the effective date must follow the date all documents are executed. 25J -5 25J -6 Great -West Retirement Services® AGREEMENT FOR RECORDKEEPING AND COMMUNICATION SERVICES §457(b) Deferred Compensation Plan Group No. 98280 -01 City of Santa Ana Services Agreement 4 -16 -14 (one -year term) 25J -7 Page 1 TABLE OF CONTENTS I. Definitions .................................................................................................... ............................... II. Basic Recordkeeping Services .................... ........ .. ............................................................... 1.,., A. Participant Account Establishment .................................................. ............................... B. Participant Account Information ....................................................... ............................... C. Investment Options ......................................................................... ............................... D. Valuation of Participant Account Balances ..................................... ............................... E. Contributions, Transfers and Limitations ......................................... ............................... F. Automated Voice Response System ....... — ...................................... ............................... G. Participant Website ........................................................................ ............................... H. Client Service .................................................... ............................... ..................1111........, I. Plan Sponsor Access to Recordkeeping System ............................. ............................... J. Repo ting .......................... ............................... — ....... ,,....,..., .... , ... ,, .... ...,.. ............ ..................... K. Regulatory Updates ...................................................................................... ............................... L. Benefits, Tax Withholding and Reporting ..................................................... ............................... M. Qualified Domestic Relations Orders ........................................................... ............................... N. Sample Plan Document and Adoption Agreement ....................................... ............................... O. Rollovers from Other Eligible Retirement Plans ........................................... ............................... P. Code Section 402(f) Notice ......................................................................... ............................... Q. Monitoring the Deferral Limits .................................................................... ............................... III. Enhanced Signatureless Recordkeeping Services ... ............................... A. General Requirements .................................... ............................... B. Deferral Recordkeeping .................................. ............................... C. Beneficiary Recordkeeping ........................... ..........1............1....... D. Beneficiary Confirmation for Death Benefit Claims ........................ E. Online Enrollment ........................................... ............................... F. Loans ............................................................. ............................... G. Required Minimum Distributions at Age 70 % a . ............................... IV. Communication Services ......................................... ............................... A. Special Representations ................................ ............................... B. Communication Materials ............................... ...........................1111 C. Group Presentations ..................................... ............................... D. Individual Counseling Sessions ..................... ............................... E. Plan Sponsor Committee Meetings ............... ............................... F. Communications and Marketing Plan ............. ............................... 4 5 ............ 5 ......................1........ 6 . ............................... 6 ........... 7 ..................7 ..................7 .......................... 7 ................. 8 .................... 8 ........ ..1 ...........................9 ........ .....1..............I.......... 9 9 ................... 1111,. ............. . ........ , ... I ......................... 9 9 ............... . .... 1111., 1..... —.... ............. I ....... .................. 9 .................... I ......... 9 .............................10 ........ .............................10 an .......................11 .......................11 Al City of Santa Ana Services Agreement 4 -16 -14 (ane -year term) Page 2 25J -8 G. Assignment of Representatives ........................................................................................................... .............................12 H. Retirement Planning Education, Distribution Counseling .................................................................... .............................12 V. Miscellaneous Provisions ............................................................................................................................. .............................12 A. Confidentiality of Data and Privacy Notice .......................................................................................... .............................12 B. Business Continuity Plans Notice ........................................................................................................ .............................13 C. Affiliates ............................................................................................................................................... .............................13 D. Exclusivity ............................................................................................................................................ .............................13 E. Responsibilities at Termination .......................................................................................................... .............................13 F. Error Correction.... ..................................... .......................................... ................................................ .................... 13 G. Record Retention Policy ..................................................................................................................... .............................14 VI. Plan Sponsor Responsiblllties ..................................................................................................................... .............................14 VII. Warranty, Indemnification and Limitation of Liability ................................................................................... .............................14 VIII. Notifications ................................................................................................................................................ .............................15 IX. Agreement Term and Termination ................................................................................................................ .............................15 X. Recordkeeping, Communication and Other Fees ......................................................................................... .............................15 A. Recordkeeping and Communication Fees .......................................................................................... .............................15 B. Loan Fees ........................................................................................................................................... .............................16 C. Authorized Investment Option Administration Fees .......................................................................... .............................16 D. Bank Credit Disclosure ........................................................................................................................ .............................16 E. Plan -Level Disclosure Services ........................................................................................................... .............................16 F. Miscellaneous Fee Provisions.. ............................... ........................................... ................ ......................................... - 16 XI. Modification and Consent ............................................................................................................................. .............................17 XILDispute Resolution ..................................................................................................................................... .............................17 All. Entire Agreement ........................................................................................................................................ .............................17 XIV. Governing Law ........................................................................................................................................... .............................17 XV. Severablllty ................................................................................................................................................. .............................17 XVI. Authorized Persons .................................................................................................................................... .............................18 XVILLegal Advice ............................................................................................................................................. .............................18 XVIII. Force Majoure ......................................................................................................................................... .............................18 XIX. Signatures ................................................................................................................................................ .............................18 Procedures for Complying with Fund Company Market Timing and Excessive Trading Policies .......... .............................19 BusinessContinuity Plans ............................................................................................................................ .............................20 PrivacyNotice Exhibit .................................................................................................................................... .............................21 City of Santa Ana Services Agreement 4 -16 -14 (one -year term) 25J -9 Page 3 Great -West Retirement Services® AGREEMENT FOR RECORDKEEPING AND COMMUNICATION SERVICES Great -West Life & Annuity Insurance Company ("Great - West"), and/or any successor, assign or affillate, and City of Santa Ana ( "Plan Sponsor ") make this Agreement for Recordkeeping and Communication Services, with respect to the services to be provided by Great -West Retirement Services®, a unit of Great -West, to the City of Santa Ana 457 Deferred Compensation Plan (the "Plan "). WHEREAS, Plan Sponsor has established or adopted the Plan for its eligible current and former employees (Participants) in accordance with Code Section 457, and all other applicable federal, state and municipal laws, for the purpose of providing a voluntary deferred compensation retirement plan to Participants for voluntary contribution; and WHEREAS, Plan Sponsor (or its designee) serves as the Plan Administrator and Named Fiduciary of the Plan; and WHEREAS, Plan Sponsor has placed all Plan assets into a trust, custodial account or annuity contract that meets the requirements of the Code and will continue to meet such requirements for the duration of this Agreement for purposes of establishing an unbundled open- architecture investment arrangement; and WHEREAS, on the Effective Date, this Agreement will replace In its entirety the Administrative and Communication Services Agreement between Great -West and City of Santa Ana that was effective May 1, 1989, and executed May 29, 1989, and any subsequent amendments; and WHEREAS, Great -West acts In a non - fiduciary capacity as a directed, nondiscrelionary service provider and to perform the services described herein as directed by Plan Sponsor, In compliance with all applicable federal, state and local laws and regulations; WHEREAS, Great -West agrees to act as record keeper and provide communication services for an open- architecture platform with per -share identified by NAV (net asset value) where the Plan Sponsor may select, add and change Plan investment options from the universe of funds City of Santa Ana Servlces Agreement 4 -16 -14 (one -year term) (that Great -West has the contractually ability to record keep) at Plan Sponsor's discretion and use of Great -West funds or securities are not contractually required; WHEREAS, Great -West agrees that fund investment option changes may not occur without Plan Sponsor authorization; WHEREAS, Great -West agrees that nothing in this Agreement restricts Great -West from offering or providing additional record keeping or other Plan service Improvements, as mutually agreed upon; NOW, THEREFORE, the parties agree as follows: I. DEFINITIONS The following terms and definitions shall apply throughout this Agreement: 25J -10 a, ACH — Automated Clearinghouse b, Agreement — this Agreement for Recordkeeping and Communication Services c, Authorized Investment Options — the investment options available under the Plan, as selected by Plan Sponsor d. Business Day — any day, and only for as many hours as, the New York Stock Exchange is open (typically until 4;00 pm Eastern Time) e. Code — the Internal Revenue Code of 1986, as amended from time to time, including all Treasury Regulations promulgated thereunder I. Designated Investment Option — the investment option designated by Plan Sponsor to receive all Participant contributions, transfers and direct rollovers, and other amounts with respect to a Participant, that are received without complete allocation instructions g. Effective Date — the date upon which this Agreement takes effect, as specified below h. Great -West— Great -West Life & Annuity Insurance Company Page 4 i. Named Fiduciary — the fiduciary(ies)who jointly or severally have the authority to control and manage the operation and administration of the Plan, as described in ERISA J. Participant — Plan Sponsor's current and former employees participating in the Plan k. PDI — Payroll Data Interchange I. Plan — the retirement plan designated in the recitals above m. Plan Account — an unallocated Plan account that may be used for Plan purposes as set forth in the Plan document and as instructed by Plan Sponsor, which may Include payment of the Recordkeeping and Communication Fee. Assets in the Plan Account will be invested in a single investment option as selected by Plan Sponsor n. Plan Sponsor — the City of Santa Ana, the contracting party named in the recitals above o. PSC — the Plan Service Center, Great- West's current Plan Sponsor website p. QDRO — a Qualified Domestic Relations Order, or legal court that divides ownership of a Participant's retirement account to allocate certain assets from the Participant's account to the Participant's former spouse or nonparticipant in the form of an alternate payee account or distribution q. Recordkeeping and Communication Fee — the basic annual recordkeeping and communication fee payable to Great -West under this Agreement, as described below r. Revenue — the fees Great -West and/or one or more of its affiliates or subsidiaries receives and/or collects from mutual fund families and other investment providers, including other Great -West affiliates, for providing certain administrative or other services s. Trustee — the named trustee in a certain trustee agreement between Plan Sponsor and said trustee as it relates to the Plan II. BASIC RECORDKEEPING SERVICES A. Participant Account Establishment Great -West will establish on its recordkeeping system Participant and related data that Includes, but is not limited lo, Participant indicative data (e.g., City of Santa Ana Services Agreement 4 -16 -14 (one -year term) 25J -11 name, address, birth date). Great -West will provide assistance to Plan Sponsor as necessary to coordinate the establishment of Participant contribution processing on its recordkeeping system. B. Participant Account Information A Participant account consists of: 1. The following Participant indicative data, when received by Great -West In good order: a) Name b) Gender c) Soclal Security Number d) Mailing address e) Telephone number f) Date of birth g) Beneficiary Information 2. Current Participant investment allocations in the Authorized Investment Options 3. Current Participant account balances in each Authorized Investment Option. C. Investment Options 1. Authorized Investment Options Plan Sponsor is responsible for the selection of all Authorized Investment Options made available under the Plan, based on Plan Sponsor's independent evaluation, or that of its registered investment advisor, consultant, broker or other agent, as applicable. Plan Sponsor may replace the Authorized Investment Options at any time without charge to Plan Sponsor or participants, Great -West agrees that Plan Sponsor may authorize fee and non -fee funds. Sixty days' advance written notice shall be required for either party to terminate or add an investment option. Great -West will cooperate with Plan Sponsor to terminate existing investment options or add new investment options, and Great -West will assist Plan Sponsor in appropriately notifying Participants of any changes via Participant quarterly statements. In extraordinary situations where notices must be sent prior to the next quarterly statements, such Page 5 changes will be made as soon as practicable, as agreed upon by the parties. The Group Annuity Contract previously Issued to Plan Sponsor by Great -West and made available to Participants under the Plan contains a death benefit guarantee. Plan Sponsor has elected to add new Authorized Investment Options consisting of outside mutual funds and other investment options. As a result, Plan Sponsor acknowledges and agrees that the Group Annuity Contract is hereby amended to eliminate the death benefit guarantee. 2. Designated Investment Option Plan Sponsor shall select a Designated Investment Option to receive all Participant contributions, transfers and direct rollovers, and other amounts with respect to a Participant, that are received without complete allocation Instructions. Once the Participant provides Great -West with complete allocation instructions In good order, future amounts will be invested pursuant to such instructions. However, funds already deposited into the Designated Investment Option will remain invested therein until transferred by Participant request. D. Valuation of Participant Account Balances Participant account balances within the Plan will be accounted for as follows: 1. Amounts that are not guaranteed as to principal or interest will be accounted for at their fair market value as of the close of each Business Day. 2. Amounts receiving a guaranteed interest rate and a guarantee of principal will be accounted for at book value. Interest will be accounted for on a daily effective method. E. Contributions, Transfers and Limitations Purchases and sales of securities at the direction of Participants will be effected through GWFS Equities, Inc., a broker /dealer affiliate of Great -West. Instructions for the purchase, sale, exchange or City of Santa Ano Services Agreement 4 -16 -14 (one -year term) 25J -12 transfer of shares on behalf of the Plan shall be transferred to GWFS Equities, Inc. for processing. 1. Contributions Contributions sent directly online to Great - West's recordkeeping system and processed by 12:00 am Mountain Time will be allocated effective the next Business Day, at that Business Day's unit value Funds must be sent via ACH within the PSC functionality. 2. Transfers Requests for Participant - initiated transfers between Authorized Investment Options will be processed and effective the Business Day they are received by Great -West. Any transfer request not received by Great -West during a Business Day will be processed and effective the next Business Day, or such earlier time as may be required in order to comply with applicable law, 3. Market Timing and Excessive Trading Plan Sponsor acknowledges receipt of, and agrees to adhere to the terms and conditions of, the Procedures for Complying with Fund Company Markel Timing and Excessive Trading Policies exhibit, attached to this Agreement. F. Automated Voice Response System Participants will have access to a toll -free, automated voice response system to Inquire or make account changes from a touch -tone telephone. Inquiry services available from the automated voice response system will utilize share prices, unit values and account balances that are as of the last calculated unit value/share price. The automated voice response system will be available 24 hours a day, 7 days a week, except for routine maintenance of the system which, when necessary, will generally take place on Sunday between the hours of 12:01 am and 12:01 pm Mountain Time. However, the system may also be limited or unavailable during periods of peak demand, market volatility, systems upgrades, or maintenance, or for other reasons. Page 6 G. Participant Website Participants will have access to a new, customized Plan website to inquire or make account changes via the Internet. Great -West shall host and update this website for Plan Sponsor, and all content, Images and links will be approved by Plan Sponsor. Plan Sponsor shall have access to Great -West marketing staff to assist in the development and production of customized Plan branding, materials and messaging. Participant access and use will be through a login /password gateway into Individual's account free of charge. The website will be available 24 hours a day, 7 days a week, except for routine maintenance of the system, which, when necessary, will generally take place on Sunday between the hours of 12:01 am and 12:01 pm Mountain Time. However, the system may also be limited or unavailable during periods of peak demand, market volatility, systems upgrades or maintenance, or for other reasons. As soon as practicable, Great -West shall provide Plan Sponsor with notice in the event of such system unavailability due to reasons other than routine upgrades or maintenance. H. Client Service Client service representatives will be available via toll -free telephone call to Great -West to answer Participant questions and process applicable transactions each Business Day between the hours of 6:00 am and 5:00 pm Pacific Time. I. Plan Sponsor Access to Recordkeeping System Plan Sponsor staff shall have access to Great - West's recordkeeping system or website online via the PSC to inquire or make changes while administering the Plan. Upon request, Great -West representatives will be made available to assist and train employees of Plan Sponsor in properly accessing and processing transactions on the PSC. The PSC will be available consistent with the availability of the automated voice response system. Plan Sponsor will have access to Great -West reporVdata staff and all standard reports and may request customized reports at no additional charge. City of Santa Ana Services Agreement 4 -16 -14 (one -year term) 25J -13 Custom reports will be produced within 14 days of written request. J. Reporting 1. Participant Statements Each calendar quarter, Great -West will make available to each Participant a statement of his/her account, summarizing all activity for the previous calendar quarter, including, but not limited to: a) Beginning and ending balances; b) All transactions processed during the quarter, including contributions; c) Interest or change in value; d) Any applicable Fees /Charges; e) Transfers and withdrawals for the quarter. Participants may elect to access their statements via the Participant website, or to receive their statements by mail, and may change their election at any time. Alternate access requests by Participants or Plan Sponsor will incur no additional charges. Statements will be mailed to Participants who do not affirmatively elect to access their statements on the website. Mailed statements will be sent to the Participant's last -known home address as provided to Great - West by Plan Sponsor, the Participant and /or the prior recordkeeper. Statements will be available on the website or mailed within 20 Business Days after the and of each calendar quarter, or within ten Business Days after receipt of final information in good order from third party sources, whichever is later. Undeliverable statement should have Great - West as the return address not the City. Great - West Is responsible for getting statements to Participants by using an address - locator service for all "lost" Participants. 2. Employer Plan Summary Report Plan Sponsor will receive an Employer Plan Summary Report, summarizing Plan -level assets and Participant account balances, within 20 Page 7 Business Days after each calendar quarter end, or within ten Business Days after receipt of final information in good order from third party sources, if applicable, whichever is later. The following Plan Information will be addressed in the Employer Plan Summary Report: a) Summary of Plan transactions and assets; b) Summary of contributions processed; c) Withdrawals; d) Annuities purchased, if applicable; e) Periodic payments; f) Investment option grand totals — summarizes both dollars and unitslshares and Plan activity; g) Investment option totals by money type — summarizes both dollars and units /shares and money type activity; h) Participant summary — a report of account activity for each Participant. 3. Annual Plan Review Plan Sponsor will receive an Annual Plan Review in written presentation Including, but not limited to, the following information: a) Detailed description of all new services, service models, trends and technology offered by Great -West to its clients or within the industry; b) Review of enrollment efforts; c) Asset allocation information, contributions, distributions (investment options and fixed /variable split); d) Voice response usage and enhancements; e) Benefit payments; f) Direct online system access — current services and available services; g) Legislative updates; h) Identified fees or charges revenue collected from each investment fund by investment fund option and where such revenue has been paid for what services including, but not limited to, recordkeeping and fun management City of Santa Ana SerVICes Agreement 4-16-14 (one -year term) 25J -14 services with total fund fee and charge revenue' i) Plan assets and expenses, with weighted expense ratio, expenses shown by separate service cost, including, but not limited to, "121>4" fees, "Sub -TA" fees, fiduciary reimbursement administration and respective management fees, Including investment management fees with associated percentage of Plan expenses; j) Fixed fund charges, fees, subsidies and any market-to-book value issues; k) Total revenue to Great -West with revenue shown by participant. 4. Annual Investment Performance Report Great -West shall provide Plan Sponsor with an annual investment performance report. K. Regulatory Updates Great -West shall periodically make information available to Plan Sponsor concerning federal legislative activity of which Great -West is aware that may affect the Plan and related funding contracts. Such information, however, does not constitute legal or tax advice regarding the legal sufficiency of the Plan. L. Benefits, Tax Withholding and Reporting Benefit payments to Participants and beneficiaries will be made within two Business Days following receipt by Great -West of complete payment instructions. For the purposes of this Agreement, "complete payment Instructions" means that all required information on the Participant request form, whether paper or online, has been completed, including all required signatures or authorizations, and that Great -West has completed Its review of the request in accordance with the terms of this Agreement. Benefit payments will be made, taxes withheld, and tax reporting completed as follows: 1. A record will be maintained of each distribution from the Plan with respect to the Participant, including the reason for the distribution. A report may be made available to Plan Sponsor on request. Page 8 2. Federal and state income tax withholding and tax reporting that is applicable at the time of the distribution will be performed and sent to the Participant or beneficiary for each benefit payment from the Plan, 3. The income tax withholding will be forwarded to the Internal Revenue Service and appropriate state governmental entitles, and will be completed by the applicable due dates. 4. Information will be provided to the Internal Revenue Service annually showing an accounting of all Participants who have received distributions during the previous calendar year. A similar report will be provided to Plan Sponsor, M. Qualified Domestic Relations Orders If the Plan accepts QDROs, Plan Sponsor hereby instructs Great -West to complete an administrative review of all Plan Sponsor- approved QDROs submitted on or after the Effective Date, to ensure that Great -West can determine the amount of the alternate payee's award, mailing address, and social security number. Great -West will establish an alternate payee account or process a distribution pursuant to the terms of the QDRO, the Plan and/or the Code requirements in effect on the date of the distribution, and a distribution request received in good order and In a manner satisfactory to Great - West. Plan Sponsor hereby instructs Great -West to determine the amount payable to the alternate payee based solely on the Participant account records on Great - West's recordkeeping system. N. Sample Plan Document and Adoption Agreement Great -West shall offer a sample Plan document, an adoption agreement, and any Plan document amendments that may be required due to change In applicable law, prior to the date required. 0. Rollovers from Other Eligible Retirement Plans If the Plan accepts rollovers from other eligible retirement plans, including IRAs, separate accounts will be maintained for such rollovers. Other accounts may be established from time to time as required for Plan administration. P. Code Section 402(f) Notice Great -West shall provide Participants with the IRS model notice, as amended from time to time, pursuant to Code §402(1). Q. Monitoring the Deferral Limits Great -West shall monitor Participants' total deferrals under the Plan for the calendar year and shall notify Plan Sponsor at the end of the calendar year of any Participants exceeding permitted deferral limits established under Code §457(b). Any distributions made to correct excess deferrals will be appropriately tax reported. Great -West shall provide assistance in calculating catch -up contributions. Plan Sponsor acknowledges that Participants are fully responsible for any catch -up calculations. III. ENHANCED SIGNATURELESS RECORDKEEPING SERVICES A. General Requirements This Sectlon III. describes certain services under which Great -West will process Participant requests without obtaining Plan Sponsor signature or other specific approval. In doing so, Great -West will not exercise any fiduciary authority or make any discretionary determinations, Rather, this Agreement will act as a one -time, blanket instruction and approval by Plan Sponsor for Great-West to process all Participant requests that meet the stated criteria. In order to receive the enhanced, signatureless services detailed In this Section III., Plan Sponsor must utilize the PSC and must provide all necessary Information In a PDI file. Plan Sponsor must also provide any additional Information or instructions as required by, and in a form acceptable to, Great -West. In addition, in most cases. Great -West must be the sole recordkeeper for the Plan. If at any time Plan Sponsor does not meet these general requirements, or does not meet the specific requirements of any service described in this Section III., Great -West shall City of Santa Ana Services Agreement 4 -16 -14 (one -year term) Page 9 25J -15 not be responsible to continue to provide such service. B. Deferral Recordkeeping Plan Sponsor hereby instructs and authorizes Great -West to allow Participants to update their deferral elections via the Plan- customized Great - West website and automated voice response system. Plan Sponsor shall provide deferral amount data for all Participants. Great -West will forward updated deferral information to Plan Sponsor according to the schedule elected by Plan Sponsor. In order to receive this service, the Plan must allow for Participants to make special catch -up contributions or regular catch -up contributions, C. Beneficiary Recordkeeping Plan Sponsor affirms that the Plan allows web - initiated beneficiary designations. Plan Sponsor hereby instructs and authorizes Great -West to accept, maintain and file, without Plan Sponsor's further approval, beneficiary designations received by Great -West in good order and in a manner acceptable to Great -West. Upon request, Plan Sponsor agrees to provide Great -West with any and all beneficiary information filed with the Plan by Participants prior to the Effective Date. Great -West agrees to update all Participant beneficiary documents and scan Plan Sponsor's hardcopy Participant beneficiary files and documentation in the Plan Sponsor's possession, which includes handwritten documents and signatures through digital portable document format (Adobe), optical character recognition or other standard readable open- source format into a new online beneficiary tracking system. As soon as practicable, Great -West will make all such records available for Plan Sponsor and file transfer in a standard readable open- source format acceptable to the Plan Sponsor on request. Plan Sponsor shall provide Great -West with instructions regarding any Plan requirements as to spousal consent for beneficiary designations. If there are any such requirements, Plan Sponsor instructs Great -West to rely on the marital status specified by the Participant on the beneficiary designation form, and to obtain spousal consent, when applicable. If a beneficiary designation requires spousal consent, such designation may be made only by paper farm. D. Beneficiary Confirmation for Death Benefit Claims Plan Sponsor hereby instructs and authorizes Great -West to process, without Plan Sponsor's further approval, death benefit claim forms received in good order from beneficiaries under the Plan. Great -West is instructed to determine a Participant's beneficiary pursuant to the most recent beneficiary designation available to Great -West. If a Participant has not designated a beneficiary, or if no designated beneficiary survives the Participant, Plan Sponsor instructs Great -West to forward the claim to Plan Sponsor to determine the beneficiary before processing the distribution. Death benefit claim forms submitted without complete Information or without a certified copy of the deceased Participant's death certificate or other required documentation will not be processed, and the claimant will be notified of the deficiency. Processing will continue once Great -West receives all required Information and documentation in good order. Claimants determined not to be beneficiaries will be notified that their claims have been rejected. Plan Sponsor agrees to make determinations with respect to any competing or other questionable death benefit claims. Plan Sponsor and Great -West will jointly develop procedures and communications for reviewing and processing death benefit claim forms and for handling claims to the extent spousal consentlregistered domestic partner consent applies. In order to receive this service, Plan Sponsor must also utilize Great - West's beneficiary recordkeeping and vesting tracking services, if applicable. This servlce shall commence following completion of Initial beneficiary solicitation. E. Online Enrollment Plan Sponsor instructs and authorizes Great - West to allow online enrollment. Once the PDI Its is transmitted, Plan Sponsor instructs Great -West to issue a Personal Identification Number to every eligible employee, allowing enrollment in the Plan through the website. City of Santa Ana Services Agreement 4 -16-14 (one -year term) Page 10 25J -16 F. Loans Plan Sponsor instructs and authorizes Great - West to allow online loan processing. Plan Sponsor agrees that all loans shall be account reduction loans repaid by payroll deduction and shall be consistent with the loan policy and the procedures established by the parties from time to time. Plan Sponsor instructs and authorizes Great -West to process, wlthout further Plan Sponsor approval, Participant loan requests submitted through a form acceptable to Great -West or through the website. Principal residence loan requests must be submitted on a paper form with supporting documentation. Participants will be subject to the fees described online and in the loan documents. G. Required Minimum Distributions at Age 70'/2 Great -West will send via the U.S. Postal Service a notice and distribution form to each Participant attaining age 70 %z or older in the current calendar year. The notice informs the Participant that required minimum distributions must begin no later than April 1 of the calendar year following the later of age 70 or retirement. Great -West will not initiate such distributions, but will only process such distributions upon receipt of a Participant or Plan Sponsor request in good order. Each year, Great -West will provide a report including but not limited to, name and mailing address, to Plan Sponsor listing Participants who are age 70 % or older and whether each has taken or received this type of distribution for the calendar year. IV. COMMUNICATION SERVICES All communications must be in the authorized customized branding and format pre- approved by the Plan Sponsor. Great -West agrees to comply with all communications requirements of the Dodd -Frank Act, or other federal or state law. A. Special Representations 1. Great -West representatives assigned to perform services under this Agreement will be properly licensed, trained and supervised with respect to the conduct of their business activities. 2. Subject to applicable law, Plan Sponsor has the right to interview, approve or reject Great - West representatives. Great -West shall assign to the Plan Javier Obando as the Client Relationship Director, and as the sole relationship manager, and Tisha Neal as the full -time on -site Account Representative, unless an alternate request is made by Plan Sponsor. 3. Great -West representatives will provide information in a manner consistent with applicable insurance and securities laws and retirement industry service standards including for Plans of similar size. However, information supplied to Participants shall not constitute investment and /or tax advice upon which Participants or Plan Sponsor may rely. 4. No Great -West representative may discriminate with respect to investment options provided under the Plan. Representatives will give equal and fair representations when describing the various Authorized Investment Options. 5. Compensation to representatives will not be based upon investment options selected by the Participants. B. Communication Materials Great -West will provide Participant educational and communication materials regarding financial investing and retirement options. These materials include, but are not limited to, newsletters, brochures and other materials as mutually agreed upon. The materials will be customized with a specific brand designed for the Plan, including, but not limited to, Plan enrollment kit, presentations, educational flyers or postcards, Account Representative Participant meeting materials and monthly "Lunch- and - Learn" Participant presentations. C. Group Presentations Great -West representatives will conduct 52 days of on -site meetings, and any mutually agreed up on days in addition, at which some or all of the following will be communicated: City of Santa Ana Services Agreement 4 -16 -14 (one -year term) Page 11 25J -17 1, Comprehensive benefits of newly improved Plan, scheduled transition plan, accessibility of representatives before and during transition including blackout period, newly automated services and self - service features of plan, improved fund line -up and open architecture; 2. Summary of the key provisions of the Plan; 3. Summary of Authorized Investment Options; 4. Discussion of services, including automated voice response system and website inquiry, retirement planning, Investment seminars and QDROs; 5. Instructions on how to enroll In the Plan or request an individual counseling session with a Great -West representative. Great -West will provide a service guarantee of $1,500 for 52 days. D. Individual Counseling Sessions Upon request, Great -West representatives will conduct prescheduled Individual counseling sessions, utilizing a Participant paycheck analysis, an asset allocation model and retirement counseling services, as approved by Plan Sponsor. Great -West shall not provide information on a Participant's account to any spouse, former spouse, family member or friend of Participant, without the consent of the Participant. Participants must authorize, by Invitation, any such person to attend these counseling sessions. E. Plan Sponsor Committee Meetings Upon request, the Great -West Relationship Manager and Account Representative may be required to attend periodic Plan Sponsor meetings and will be prepared to provide a Plan performance and benchmark report regarding the Plan and Great - West activities and future record keeping and communication services efforts, F. Communications and Marketing Plan Great -West will prepare a communications and marketing plan for review by Plan Sponsor, Such Plan will be finalized in a mutually agreeable manner. G. Assignment of Representatives Great -West shall assign one full -time Account Representative to provide communication and marketing services exclusively to the Plan. Such representative will be responsible for all group meetings and Individual counseling sessions as directed by Plan Sponsor. In addition, Great -West shall assign to the Plan a Relationship Manager of higher corporate rank than the Client Relationship Director and Account Representative, and this Relationship Manager will be accessible during reasonable business hours for discussion of Plan management issues andlor concerns. H. Retirement Planning Education, Distribution Counseling Plan Sponsor agrees that ongoing retirement planning education and distribution counseling may be made available to Participants by Great -West or an affiliate. Where a Participant wishes either to contribute or roll over to an IRA, an IRA product may be made available by Great -West or Its affiliate. Where a Participant requests, via a recorded telephone call with Great -West, to roll assets Into the Plan from a previous employer's plan, Plan Sponsor instructs and authorizes Great -West to assist the Participant in completing such rollover without Plan Sponsor's signature or further approval, provided the Plan permits such rollovers. The recordkeeper of the previous employer's plan may require Plan Sponsor's signature or approval to complete the rollover. Great -West shall provide a quarterly report with information detailing the activity of rollovers into IRA products and compensation received by Great -West and affiliates as a result of any rollover transactions. V. MISCELLANEOUS PROVISIONS Great -West and Plan Sponsor specifically accept and agree to each of the following requirements: A. Confidentiality of Data and Privacy Notice City of Santa Ana Se"kes Agreement 4 -16 -14 (one -year term) Page 12 25J -18 Great -West and Plan Sponsor agree to maintain and hold in confidence all Nonpublic Personal Information ( "NPI ") received in connection with the performance of services under this Agreement. NPI includes personally identifiable financial information as defined by Title V of the Gramm - Leach - Bliley Act. Great -West shall not use or disclose NPI to any third party, other than affiliates and service providers appointed by Plan Sponsor, without Plan Sponsors written consent, except as permitted or required by law. Any third party service provider retained by Great -West to provide services under this Agreement, and who has access to NPI, shall agree in writing to be bound by confidentiality and non- disclosure provisions, and to use such NPI only for the performance of specific services under this Agreement. Great - West's current Privacy Notice is attached to this Agreement as the Privacy Notice Exhibit. By executing this Agreement, Plan Sponsor acknowledges receipt of this notice. Great -West will update the notice periodically and make the updates available to Plan Sponsor. B. Business Continuity Plans Notice GWFS Equities, Inc.'s current Business Continuity Plans notice is attached to this Agreement as an exhibit. By executing this Agreement, Plan Sponsor acknowledges receipt of this notice. Great - West will update the notice periodically and make the updates available to Plan Sponsor. As soon as practicable following a disaster, Great -West agrees assist Plan Sponsor in business - continuity recovery and restoration efforts until full normal service levels and staffing are achieved. C. Affiliates Plan Sponsor acknowledges and agrees that Great -West may utilize the services of any affiliate, including but not limited to FASCore, LLC; Advised Assets Group, LLC; GWFS Equities, Inc.; GW Capital Management, LLC, within its controlled group to perform any services under this Agreement. Great - West shall provide to Plan Sponsor its organizational chart including, but not limited to affiliate, subsidiaries, third parties or other agents and their specific responsibilities and duties related to Plan recordkeeping, management, services and operations. City of Santa Ana Services Agreement 4 -16 -14 (one -year term) 25J -19 D. Exclusivity Plan Sponsor appoints Great -West as the Plan's exclusive provider of the recordkeeping, communication, and other services set forth in this Agreement for the term of this Agreement. E. Responsibilities at Termination Great -West shall provide all Participant and Plan data in the standard file format for any Plan transition within 10 Business Days. Any additional requests for data will be reviewed and delivered independently. Upon Great -West relinquishing responsibilities at the termination of this Agreement, as requested, investment balances for all Participants will be provided in the recordkeeping system's standard format, to assure appropriate account balances, within 10 Business Days of termination. Participant statements and Employer Plan Summaries and Disclosures will be provided up to and including the statement for the last calendar quarter covered by this Agreement until Plan Sponsor determines that the transition is complete. Once recordkeeping responsibilities are transferred, Great -West, as requested by Plan Sponsor, will stop all communications and statements to Participants. F. Error Correction For purposes of this section, "Great- West" refers to Great -West Life & Annuity Insurance Company and certain of its affiliates. If Great -West, as the recordkeeper, makes an error that results in an investment transaction gain or loss, and it Is brought to Great - West's attention within 90 days after the Participant statement date following the occurrence of the error, Great -West will retroactively correct the error by putting the Participant back in the financial position where the Participant would have been had the error not occurred. However, if the Plan or affected Participant knew or should have known of the error but failed to bring it to Great - West's attention within 90 days after the statement date following the occurrence of the error, the error will be corrected prospectively. If a correction is made at Great - West's expense and results in a net loss, Great -West will bear the loss. However, if the correction results In an unintended net gain, Great - West will retain the gain as compensation for services provided to the plan and to defray Page 13 reasonable expenses of the plan including offsetting net losses as described above. Under special circumstances, Plan Sponsor may request consideration of a retroactive correction of a Great -West error at Great - West's expense after the expiration of the 90 -day period. Based on the circumstances identified, Great -West will consider such retroactive correction, and such correction will not be unreasonably denied, based on industry standards. In no event will Great -West be responsible for the expense of retroactive correction caused by an error or miscommunication committed by a Participant, Plan Sponsor, or other third party. In such case, Plan Sponsor shall instruct Great -West how it wishes any resulting gain to be allocated or loss to be funded. G. Record Retention Policy Great -West shall retain all records In Its custody and control that are pertinent to performance under this Agreement in accordance with its record retention policy, as amended from time to lime. Great -West shall make such records available to Plan Sponsor for inspection and reproduction upon Plan Sponsor's reasonable advance written notice and at Plan Sponsor's expense. Great -West shall make all Plan and Participant records available In electronic format acceptable to Plan Sponsor within 14 days of request. VI. PLAN SPONSOR RESPONSIBILITIES A. If Plan Sponsor changes the reporting format for contribution reporting, Plan Sponsor shall give Great - West two weeks advance notice to test the new format before monies are remitted using the new format. If Plan Sponsor does not provide such notice of the new reporting format, then contributions will be effective two Business Days after receipt of monies sent in with the new format. B. Plan Sponsor agrees that Participants may be contacted at home or at work to obtain information necessary to process Participant requests or to perform other services under this Agreement. City of Santo Ana Servrces Agreement 4 -16 -14 (one -year term) C. Plan Sponsor agrees to provide all information reasonably necessary for Great -West to perform its responsibilities under this Agreement, D. Plan Sponsor agrees to use its best efforts, including, If necessary, terminating a participant investment provider, to secure and maintain the cooperation of participating investment providers in providing the timely and accurate transmittal of data, Including providing daily interest rates and unlYshare values, that is reasonably necessary for Great -West to perform its responsibilities under this Agreement. E. Should Plan Sponsor appoint a Trustee for the Plan, the Trustee must be able to interface with Great- West's recordkeeping system in a passive role, and all monies must be sent to an omnibus trust account. Plan Sponsor agrees to require the Trustee to provide all information in Its possession that is reasonably necessary for Great -West to perform Its responsibilities under this Agreement. F, Plan Sponsor agrees to facilitate the scheduling of group presentations and Individual counseling sessions and to provide facilities at which both Plan Sponsor and Great -West agree that satisfactory attendance can be expected. VII. WARRANTY, INDEMNIFICATION AND LIMITATION OF LIABILITY Great -West agrees to indemnify Plan Sponsor from and against any and all expenses, costs, reasonable attorney's fees, settlements, fines, judgments, damages, penalties or court awards ( "Damages ") actually Incurred that are the direct result of any breach, gross negligence, reckless or intentional misconduct related to this Agreement by Great -West, and its affiliates and subsidiaries to the extent that they have not directly contracted with Plan Sponsor, or any failure by Great -West to perform Its obligations under this Agreement in a manner consistent with generally accepted industry standards. Notwithstanding anything to the contrary herein, Great -West shall not be liable to Plan Sponsor for any Damages relating to or resulting from: 1) any breach of this Agreement by Plan Sponsor; 2) any direction of Plan Sponsor or any authorized agent thereof; or 3) any direction of any third party duly authorized or retained by Plan Sponsor to provide services relating to the Plan, 25J -20 Page 14 including but not limited to an Investment advisor, or any authorized agent thereof. This section represents a reasonable allocation of risk, and that it will survive the termination of this Agreement. Plan Sponsor acknowledges that Great -West, Its affiliates, and their directors, officers, employees and authorized representatives are not responsible for Investment performance of any Authorized Investment Options under the Plan. VIII. NOTIFICATIONS All notices, requests, demands or other communications provided for or required by this Agreement, or any instrument or document delivered pursuant to this Agreement, will be in writing. Notices to Great -West will be addressed as follows: Great -West Financial Charles P. Nelson, President, Retirement Services Division and Beverly A. Byrne, Chief Compliance Officer 8515 East Orchard Road, 19T2 Greenwood Village, CO 80111 Notices to Plan Sponsor will be addressed as follows: City of Santa Ana Francisco Gutierrez, Executive Director Finance & Management Services 20 Civic Center Plaza, M17 P.O. Box 1988 Santa Ana, CA 92702 Each party may designate a different address by sending written notice to the other party, to be effective within ten days of the date of the notice. IX. AGREEMENT TERM AND TERMINATION The Effective Date of this Agreement is the date it has been signed by both Plan Sponsor and Great -West. This Agreement may be terminated upon 60 days' written notice by either Plan Sponsor or Great -West. This Agreement is for a term of one year with an option for one additional year as approved by Plan Sponsor's Plan Administrator Committee. Plan Sponsor reserves the right to solicit industry and market information and providers to benchmark items such as service levels, City of Santo Ana Services Agreement 4 -16 -14 (one -year tern) investment options, relationship management, reporting and recordkeeping. In addition, Plan Sponsor may release requests for proposals at any time without immediate termination of this Agreement with written notice. This Agreement may be terminated with or without cause with 60 days' written notice by either Plan Sponsor or Great - West. X. RECORDKEEPING, COMMUNICATION AND OTHER FEES A. Recordkeeping and Communication Fees Plan Sponsor, upon reasonable notice, has the right to examine and audit all payments, fees, credits, interest and accounts related to this Agreement with Great -West and any affiliates, subsidiaries, third parties and investment providers. Great -West will provide a quarterly Plan fee disclosure showing detailed cash flow, itemized services and costs, incentives and subsidies, etc. Great -West must provide the formula and calculations for all figures provided to Plan Sponsor. Great -West shall provide Plan Sponsor with qualified staff to answer questions by Plan Sponsor - assigned examination and audit staff. 25J -21 1, Amount of Fee An annual Recordkeeping and Communication Fee of 0.10% of total Plan Account and Participant account balances, excluding loan balances, is payable to Great -West. This fee assumes the use of certain Great -West fund options. Beginning with the Effective Date, this fee will be calculated monthly based on the average daily balances on the processing date during the Agreement term and will be debited quarterly from any unallocated Plan Accounts that are eligible to pay Plan expenses. Partial quarters during the Agreement will be prorated. In the event the Plan Account balances are not sufficient to cover the fee, remaining amounts will be debited pro rata from Participant accounts. 2. Revenue Sharing to the Plan All Revenue will be credited by Great -West to the Plan. Great -West will provide a quarterly statement of all funds paid to the Plan account. Page 15 Beginning with the Effective Date, the Revenue will be credited monthly by multiplying each fund's Revenue rate by average dally balance of the fund's total Participant account balances, excluding loan balances, during the period. This Revenue will be credited to the Plan Account to be used for Plan purposes as set forth in the Plan document and as instructed by Plan Sponsor, including payment of the fee. These assets will be invested in a single Investment option as specified by Plan Sponsor. In the event Revenue already credited to the Plan Account becomes uncollectible from a fund company, Plan Sponsor hereby instructs Great -West to collect from the Plan Account the difference between the amount accrued and the amount collected. B. Loan Fees Great -West shall assess the following loan fees: a) a one -time, $50.00 loan origination fee that will be deducted from the amount of each loan processed b) a one -time, $25.00 Plan Sponsor - assessed administration fee that will be deducted from the amount of each loan processed and paid quarterly to Plan Sponsor c) a $25.00 annual maintenance fee per loan that will be deducted from the Participant's account in the amount of $6.25 per quarter. C. Authorized Investment Option Administration Fees If Plan Sponsor utilizes more than 32 Authorized Investment Options at any one time or requests an investment option that is materially different from the types of Investment options currently In use, Great - West reserves the right to modify the fees and services in this Agreement. For purposes of this paragraph, a series of target date or similar funds will count as a single Authorized Investment Option. D. Bank Credit Disclosure Great -West or one of its affiliates may earn credits and /or interest on Plan assets awaiting investment or pending distribution. Any credits or City of Santa Are Services Agreement 4 -16 -14 (one -year term) 25J -22 Interest earned by Great -West are aggregated with credits and/or Interest earned by Great -West affiliates and will be used to defray the aggregate expenses for the maintenance of bank accounts. Great -West will not retain credits and /or Interest earned in excess of such maintenance expenses, but any such excess will be retained by the bank. Credits and /or interest are earned from the use of (1) uninvested contributions received too late in the day or not received in good order to be invested same -day and (ii) proceeds from investment option redemptions where Plan distribution checks have not been presented for payment by Participants. Credits and /or interest (1) begin to accrue on contributions on the date such amounts are deposited into the bank account and end on the date such amounts are invested pursuant to Participant instructions, and (ii) begin to accrue on distributions on the date the check is written or on the wire date, as applicable, and end on the date the check Is presented for payment or when the wire clears against the account, as applicable. Earnings of credits and /or interest are at the rate the bank provides from time to time. E. Plan -Level Disclosure Services Great -West shall provide required fee and other disclosures under 29 CFR §2550.408b -2, the "General Statutory Exemption for Services or Office Space," electronically via the PSC or such other electronic means as may be agreed to by the parties from time to time. Plan Sponsor agrees to ensure that there Is at all limes a person that is able and authorized to access the disclosures on Plan Sponsor's behalf. F. Miscellaneous Fee Provisions 1. If Plan Sponsor selects a custodian or trustee that requires changes to any procedures or services in this Agreement, Great -West reserves the right to change fees in this Section. 2. Should a Participant request an overnight delivery, Great -West will assess the Participant its then - current overnight delivery fee, which is $25 as of the Effective Date but is subject to change at the discretion of Great -West. Page 16 3, Should a Participant request a partial or full withdrawal payment via ACH, Great -West will assess the Participant its then - current ACH fee, which is $15 as of the Effective Date but is subject to change at the discretion of Great - West. Should a Participant request periodic payments via ACH, Great -West will not assess an ACH fee. 4. Should a Participant request a partial or full withdrawal payment via wire, Great -West will assess the Participant its then - current wire fee, which is $40 as of the Effective Date but is subject to change at the discretion of Great - West 5. Plan Sponsor may direct Great -West in writing to assess a mutually agreed -upon per - Participant fee, asset fee or combination fee to Participant account balances. Such fee may be deposited into the Plan Fiduciary Administration and Reimbursement Account. Any fees assessed under this paragraph may be adjusted annually as instructed by Plan Sponsor. 6. Any service that Great -West is requested to perform beyond the scope of the services described in this Agreement shall be provided at a mutually agreed -upon price negotiated prior to the performance of such service. XI, MODIFICATION AND CONSENT Great -West may amend this Agreement, without Plan Sponsor's approval or signature, only as required to comply with changes to applicable law. No other modification of any provision of this Agreement, and no consent by any party to any deviation from its terms by the other party, will be effective unless such modification or consent is in writing and signed by both parties. The modification or consent will be effective only for the period, and the conditions, and for the specific Instance and purposes specified in such writing. The waiver of any breach of any term or condition in this Agreement will not be deemed a waiver of any prior or subsequent breach. For purposes of this section, a "writing signed by the parties" shall be deemed to include e-mail only if such a- mail includes a PDF or other reproduction of the manual City of Santa Ana Services Agreement 4 -16 -14 (one -year term) signature of an officer of each party who is authorized to execute an amendment to this Agreement. XII. DISPUTE RESOLUTION A. Mediation: If there is a dispute arising out of or relating to this Agreement, the partes will make a reasonable and good faith effort to negotiate between themselves a resolution of the matter. If the parties are unable to agree between themselves, and to the extent that the parties are not legally barred from entering into mediation, the parties shall endeavor to resolve any dispute out of or relating to this Agreement by participating in non - binding mediation. The mediation shall be conducted by a private mediator agree to by both parties or, if the parties cannot agree, by a mediator selected by JAMS (Judicial Arbitration and Mediation Services) or another nationally recognized, independent arbitration or mediation organization to which the parties mutually agree. The cost of any agreed -upon mediation shall be borne equally by the parties, and each party shall pay its own expenses. B. Litigation: If the dispute has not been resolved within 90 days of the initiation of non- binding mediation as provided for in paragraph A above, either party may initiate litigation; provided, however, that If one party has requested the other party to participate in mediation and the other party rejects the proposal to participate, the requesting party may initiate litigation before the expiration of the above period. XIII. ENTIRE AGREEMENT This Agreement and any subsequent amendments hereto represent the entire agreement between the parties with respect to the subject matter of this Agreement. XIV. GOVERNING LAW This Agreement will be construed and enforced in accordance with and governed by the laws of the State of California. XV. SEVERABILITY The provisions of this Agreement are severable, and if for any reason a clause, Sentence or paragraph of this Agreement Is determined to be Invalid by a court or federal or state agency, board or commission having jurisdiction over the subject matter thereof, such invalidity will not 25J -23 Page 17 affect other provisions of this Agreement that can be given effect without the invalid provision. XVI. AUTHORIZED PERSONS Plan Sponsor and any duly appointed investment advisor will provide Great -West with a list of the individuals authorized to transmit instructions to Great -West concerning the Plan and/or assets in the accounts, and written direction regarding the form of such instructions. Such list shall be updated from time to time. XVII. LEGAL ADVICE Nothing in this Agreement is intended to constitute legal or tax advice from Great -West to Plan Sponsor or any other person or entity. XVIII. FORCE MAJEURE Neither of the parties hereto shall be liable to the other for any and all losses, damages, costs, charges, counsel fees, payments, expenses or liability due to delay or interruption in performing its obligations hereunder and without the fault or negligence of such party, due to causes or conditions beyond its control, including, without limitation, labor disputes, riots, ware and war -like operations including acts of terrorism, epidemics, explosions, sabotage, acts of God, failure of power, fire or other casually, natural disasters or disruptions in orderly trading on any relevant exchange or market, including disruptions due to extraordinary market volume that result in substantial delay in receipt of correct data. My of Santa Ana Services Agreement 4 -1G -14 (one -year term) XIX. SIGNATURES By signing this Agreement, in duplicate, the parties certify that they have read and understood it, that they agree to be bound by its terms, and that they have the authority to sign it. This Agreement Is not binding on either party until signed by both parties, City of Santa Ana Signature: Name: Francisco Gutierrez Title: Executive Director, Finance & Management Services Date: Great -West Life & Annuity Insurance Company Signature: Name: Brent Neese Title: Vice President, Financial Services Date: 25J -24 Page 18 PROCEDURES FOR COMPLYING WITH FUND COMPANY MARKET TIMING AND EXCESSIVE TRADING POLICIES The prospectuses, policies and/or procedures of certain fund companies require retirement plan providers offering their fund(s) to agree to restrict market liming and /or excessive trading ( "prohibited trading ") In their funds. The following procedures describe how we, as your recordkeeper, will comply with fund company instructions designed to prevent or minimize prohibited trading. Various fund companies instruct Intermediaries to perform standardized trade monitoring while others perform their own periodic monitoring and request trading reports when they suspect that an individual is engaging in prohibited trading. If an individual's trading activity is determined to constitute prohibited trading, as defined by the applicable fund company, the individual will be notified that a trading restriction will be implemented if prohibited trading does not cease. (Some funds may require that trading restrictions be implemented Immediately without warning, In which case notice of the restriction will be provided to the Individual and plan, If applicable). If the individual continues to engage in prohibited trading, the Individual will be restricted from making transfers into the identified fund(s) for a specified time period, as determined by the applicable fund company. Individuals are always permitted to make transfers out of the identified fund(s) to other available investment options. When the fund company's restriction period has been met, the Individual will automatically be allowed to resume transfers into the identified fund(s). Additionally, if prohibited trading persists, the fund company may reject all trades initiated by the plan, Including trades of individuals who have not engaged in prohibited trading. Note: certain plan sponsors have or may elect to implement plan level restrictions to prevent or minimize individual prohibited trading. To the extent that such procedures are effective, we may not receive requests for information from the fund companies or requests to implement the restrictions described above. 10/16107 25J -25 BUSINESS CONTINUITY PLANS GWFS Equities, Inc., a subsidiary of Great -West Life & Annuity Insurance Company and affiliate of Great -West Life & Annuity Insurance Company of New York* ( "the Company "), maintains a comprehensive business continuity plan designed to respond reasonably and effectively to events that lead to significant business disruption, such as natural disasters, power outages, or other events of varying scope. This plan defines critical functions and systems, alternate work locations, vital books and records, and staff resources, and provides for the continuation of business operations with minimal impact, depending on the severity and scope of the disruption. The plan is reviewed and tested no less than once annually to ensure that the information in the plan Is kept current and that documented recovery and continuity strategies adequately support its business operations. Of utmost importance to the plan is the ability for customers to maintain access to securities accounts and assets in those accounts. In the event that one of the Call Centers or back office operation facilities becomes unavailable for any reason, calls would be re- routed to one of the firm's alternative call center or operations facilities. In the event of a significant business disruption to the primary office andfor data center, access to customer accounts will be provided via the Company's Web site and voice response system, operated from an alternative data center. Customer Service will continue to be provided by re- routing telephone calls to a Call Center located in one or more alternative sites located outside of the region. While no contingency plan can eliminate the risk of business interruption, or prevent temporary delays with account access, the firm's continuity plan is intended to mitigate all reasonable risk and resume critical business operations within 24 hours or the next business day, whichever is later. *Record keeping and administrative services are provided by Great -West Llfe & Annuity Insurance Company, and In New York, Great -West Life & Annuity Insurance Company of New York, or one of Its subsidiaries or afflIlates. Securities offered In your account maybe offered through another brokerldealer firm other than GWFS Equities, Inc., a wholly owned subsidiary of Great -West Life & Annuity Insurance Company. Please contact your investment provider for more Informatlon If needed. This disclosure is subject to modification at anytime. The most current version of this disclosure can be found on the Web site or can be obtained by requesting a written copy by mall. BCP — GWFS Customer Notice (Ed. Sept. 2012) 25J -26 PRIVACY NOTICE EXHIBIT The Great-West Family of Companies Great -West Life & Annuity Insurance Company The Great -West Life Assurance Company (US operations) Great -West Life & Annuity Insurance Company of New York Advised Assets Group, LLC GWFS Equities, Inc. # The Canada Life Assurance Company (US operations) Emjay Corporation FASCore, LLC Great -West Life & Annuity Insurance Company of South Carolina Great -West Capital Management, LLC Great -West Funds, Inc. Great -West Trust Company, LLC Westkin Properties Ltd, t mw gwrs,corn Revised 0212013 (standard+ CA) The Great -West Family of Companies protects your privacy. We have strict policies to keep your nonpublic personal information private. We may share It with affiliates and third parties that we do business with, and in other ways permitted by law. Information We Collect, We collect and store information. It comes from forms that you complete, from business you have conducted with us and other parties we do business with and from consumer and insurance reporting companies. Security of Your Information. We have physical, administrative, and technical safeguards in place to protect your privacy. Access to Information. The only employees who have access to your records are those who need it for business reasons. Our Information Sharing Practices. We limit the information we share and the parties we share it with. We share your information to help you do business with us. What we share depends on the types of products or services you request. For example, we may share information: • from business forms that you complete (such as your name, address, SSN, plan or ID number, assets and Income from your application) • about your business with us, or others (such as your policy or contract coverage and benefits and payment history) • about your relationship with us (such as the products or services you purchased) • from your employer, benefit plan sponsor, or group product (such as your name, address, SSN, plan or ID number and age) • from consumer and insurance reporting organizations (such as your credit, financial or health history; please note, these organizations may retain information provided to us and disclose it to others) • from other third parties (such as health and demographic information) • from visitors to our Web sites (such as Information you provide online by completing forms, site visit data and "cookies ") Sharing of Health Information. We won't share your health information, unless such sharing is permitted or required by law. For a description of how we share your 25J -27 our the address noted below. Sharing Information with Other Parties. You may permit us to share your information with other parties. Your Information may be shared without your consent with our affiliates and other third parties if permitted by law. We do not share your information for any purpose that requires an opt -in or opt -out, Our affiliates are listed and Include, but are not limited to, our broker- dealers and our trust company. Your Information may be shared to serve you better or to make it easier for you to do business with us. We may also share your information with vendors and financial institutions. Vendors perform services for us such as processing transactions, Financial institutions such as banks have marketing agreements with us. We have agreements with these parties requiring them to protect the privacy of your information. They are not allowed to use the information other than as specified or permitted by law. Other disclosures that may be made without your consent, include: • To detect or prevent fraud & other criminal activity; • To a medical professional for eligibility or audit purposes; • In response to a question from a government agency; • For purposes otherwise permitted or required bylaw; • In response to a subpoena or court order; • To a group policy holder to report claims experience or for an audit; • In connection with a sale or merger of all or part of our business; • To a government agency to determine your eligibility for benefits they may have to pay for; • To a peer review committee to evaluate a medical professional; • To a certificate holder or policyholder to provide information about the status of a transaction. Our Treatment of Information about Former Customers. If our relationship ends, we will not share your information with third parties except as the law requires or permits. Access to Information. You may access your Information by submitting a written request that describes the information. We will respond within 30 business days or as required by state law. Our response will explain 25J -28 the nature and substance of the Information on record. We will Identify, If recorded, the partles we shared your information with over the last 2 years, Right to Correct, Amend or Delete Information. You may submit a written request to us to correct, amend or delete any information in our records. We will respond to your request within 30 business days or as required by state law. If we agree to your request, we will notify you in writing. We will provide the corrected information to any person you identify that has received the information in the last 2 years and to any Insurance reporting organization we may have provided the information to over the last 7 years, If we refuse your request, we will explain why and you will have the right to file a statement of disagreement We reserve the right to revise this policy as needed. If changes are made, we'll send you a revised notice and post the new policy on the www.greatwest.com web site. Privacy Officer Great -West Life & Annuity Insurance Company 8525 East Orchard Road Greenwood Village, CO 80111 25J -29 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the 3'd of September, 2014. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Sonia Carvalho City Att rney By: >� JSandoval C V f Assistant City Attorney RECOMMENDED FOR APPROVAL: Francisco Gutierrez Executive Director Finance & Management Services CITY OF SANTA ANA David Cavazos City Manager GREAT -WEST LIFE & ANNUITY INSURANCE CO. Brent Neese Vice President Finance Services 25J -30 CONSULTANT AGREEMENT This agreement for the performance of services ( "Agreement ") is made and entered into on this 3rd day of September, 2014 ( "Effective Date "), by and between Benefit Funding Services Group (BFSG), a California independent consulting firm which provides specialized advice related to the design and implementation of defined contribution plans and defined benefit plans to public and private agencies /companies, with its principal place of business located at 2040 Main Street, Suite 150, Irvine, California 92614 (herein after referred to as "Consultant "), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"), with its principal place of business located at 20 Civic Center Plaza, Santa Ana, CA 92701, City and Consultant may be referred to herein individually as a "Party" or collectively as the "Parties" or the "Parties to this Agreement." RECITALS A. City desires to retain a Consultant having special skill and knowledge in providing Fiduciary advice in Plan and investment advisory services with expertise to provide quarterly investment analysis, recommendations, and reports pertaining to the City's 457 Deferred Compensation Plan including the design, solicitation and implementation of customized solutions for deferred contribution plans and defined benefit plans. BFSG will assist the City in the transition, monitor plan asset fund transfers and deposits from the current structure with the City's 457 Plan Provider and Recordkeeper to new modern fund portfolio structure and subsequent Plan Provider Request for Proposal. B. Consultant represents that Consultant is able and willing to provide such services to the City; C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. D. The Parties have specified in this Agreement the terms and conditions Linder which such services will be provided and paid for. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall perform those services identified in BFSG's Statement of Work as set forth in Exhibit A to this Agreement. 25J -31 2. COMPENSATION a) City agrees to pay, and consultant agrees to accept as total payment for its service described in Exhibit A, $20,000.00 annually during the term of this agreement. b) Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work that fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 3. TERM This Agreement shall commence on the date first written above and terminate on September 3, 2017, unless terminated earlier in accordance with Section 12, below. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer - employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a mamier consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance which shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. 25J -32 b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self - insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If consultant is or employs licensed professionals such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim. e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. f If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 6. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising fiom this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to 25J -33 have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and /or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and /or agent of the other party is covered by this Agreement. The foregoing obligations of non -use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 8. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic conununication in the manner provided in this Section, to the following persons: To City: and, Cleric of the City Council City of Santa Ana 20 Civic Center Plaza (M -30) P.O. Box 1988 Santa Ana, CA 92702 -1988 tolefacsimile (714) 647 -6956 Executive Director, 25J -34 Finance & Management Services City of Santa Ana 20 Civic Center Plaza (M -17) P.O. Box 1988 Santa Ana, California 92702 To Consultant: Darren Stewart, JD 2040 Main Street Suite 150 Irvine, California 92614 A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty -four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, that terms and conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which arc not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 25J -35 12. TERMINATION This Agreement may be terminated by the City upon fifteen (15) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City imless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate, b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 13. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION - VENUE This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be govermnent and construed in accordance with the laws of the State of California. This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties farther agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 15. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmennal agencies. Consultant shall notif} the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement, 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall 25J -36 BENEFIT FUNDING SERVICES GROUP EXHIBIT A FIDUCIARY ADVISORY SERVICES: Prepare up to four Quarterly Investment Analysis Reviews for 457 Deferred Compensation Plan and meet with Plan Administrator Committee and Plan Investment Committee up to four times providing comprehensive Plan investment advisory and investment services. 1) Said Quarterly Review shall include, but not limited to: • Market overview addressing the major markets, indices, sectors and the economic statistics affecting them; • In -depth portfolio summary, including fund and benchmark returns, style analysis and overall portfolio return; • Analyze the Plan asset allocation by fund and underlying sector. The fund line -up will also be analyzed to determine the amount of overlap that may be occurring; • Detailed quantitative and qualitative examination of each mutual fund investment option within the Plan, including performance numbers versus the category and index, manager style drift, risk /return, standard deviation, Sharpe Ratio, expense ratio, upside and downside capture and fund allocation; • Review City's Investment Policy to ensure it meets the needs of the City and that the investments and processes outlined within are being adhered; • Recommend possible fund alternatives when in conjunction with the Investment Committee, it is determined a change in fund line -up is necessary; 2) Perform fund searches as needed and make "watch list" recommendations 3) Assist in fund change implementations and update transitions 4) Prepare annual cost analysis and negotiate with vendor to potentially lower overall costs and recapture any excess revenues on behalf of Plan if applicable 5) Maintain and revise the Investment Policy Statement and Committee Charter as needed 6) Attend on -site meetings, and provide recorded minutes for each meeting or conference call 7) Assist in development of Request for Proposal for Plan Provider 25J -37 indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: Maria D, Huizar Clerk of the Council APPROVED AS TO FORM: Sonia Carvalho City Attorney Y J San val ief Assistant City Attorney RECOMMENDED FOR APPROVAL: Francisco Gutierrez Executive Director Finance & Management Services CONSULTANT Rachel Fequiere Chief Compliance Officer Benefit Funding Services Group CITY OF SANTA ANA David Cavazos City Manager 7 25J -38 CONSULTANT AGREEMENT This agreement for the performance of services ( "Agreement ") is made and entered into on this 3rd day of September, 2014 ( "Effective Date "), by and between Fiduciary Experts, LLC, a California independent consulting firm which provides specialized advice related to 457 Deferred Compensation Plans, with its principal place of business located at 29250 Wrangler Drive, Murrieta, California 92563 (herein after referred to as "Consultant "), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City "), with its principal place of business located at 20 Civic Center Plaza, Santa Ana, CA 92701. City and Consultant may be referred to herein individually as a "Party" or collectively as the "Parties" or the "Parties to this Agreement," RECITALS A. City desires to retain a Consultant having special skill and knowledge in providing specialized advice as a fiduciary with expertise pertaining to the City's 457 Deferred Compensation Plan, including providing Plan participant education and strategic communications, investment advisory services, fiduciary compliance, and assistance with benchmarking and cost negotiations with Plan Provider and Recorrikeeper. Consultant will assist the City in the transition tiom the current structure with the City's 457 Plan Provider and Recordkeeper to a new modern fund portfolio structure. B. Consultant represents that Consultant is able and willing to provide such services to the City; C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. D. The Parties have specified in this Agreement the terms acid conditions under which such services will be provided and paid for, NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall perform those services identified in Fiduciary Expert's LLC Statement of Work as set forth in Exhibit A to this Agreement. 2. COMPENSATION a) City agrees to pay, and consultant agrees to accept as total payment for its service described in Exhibit A, the amount of $5,000.00. 25J -39 b) Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work that fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. TERM This Agreement shall commence on the date first written above and terminate on September 3, 2015, unless terminated earlier in accordance with Section 12, below. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer- employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance which shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, $2,000,000 in the aggregate, Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self- insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. 25J -40 c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self - insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If consultant is or employs licensed professionals such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim. e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (3 0) days prior written notice to the City. f. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to fltrnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 6. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (,1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 25J -41 7. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means, Confidential information disclosed to either party by any subsidiary and /or agent of the other party is covered by this Agreement. The foregoing obligations of non -use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 8. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: and, Cleric of the City Council City of Santa Ana 20 Civic Center Plaza (M -30) P.O. Box 1988 Santa Ana, CA 92702 -1988 telefacsimile (714) 647 -6956 Executive Director, Finance & Management Services City of Santa Ana 20 Civic Center Plaza (M -17) P,O, Box 1988 25J -42 Santa Ana, California 92702 To Consultant; Maribel Larios 29250 Wrangler Drive Murrieta, California 92563 A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty -four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 1.0. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, that terms and conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement aelmowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 11. ASSIGNMENT Tnasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 12. TERMINATION This Agreement may be terminated by the City upon fifteen (15) days written notice of termination. hr such event, Consultant shall be entitled to receive and the City shall pay Consultant 25J -43 compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 13. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION - VENUE This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be government and construed in accordance with the laws of the State of California. This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties farther agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement, 15. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature'hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 25J -44 FIDUCIARY EXPERTS, LLC EXHIBIT A FIDUCIARY SERVICES & EDUCATION: Services shall include not less than four times per year to meet with the Plan Investment Committee or other people designated by Executive Director or representative to present Plan education or investment analyses or recommendations. The Scope of Work shall include: • Consultant acts as a Co- Fiduciary to the City of Santa Ana 457 Deferred Compensation Plan • Provide strategic communications for the update agreement transition including participant education and other advisory services; • Customize as necessary Provider information to participants; manage production of new plan educational materials and media for use on citywide website • In conjunction with Plan Administrator, develop an educational framework to educate plan participants, committee members and City council regarding facets of the 457 Deferred Compensation Plan, Plan transition and related processes or procedures, and fiduciary duties • Assist in preparation of Request for Proposal for a fair and competitive analysis of market offerings of Plan Provider services and fees, or other consulting services • Develop training and operational plan for Plan Administrator Committee administrative reimbursement funds and expenditures; document, audit and certify all such expenditures • Provide Plan Administrator and Investment Committee support including, but not limited to minutes, presentations and other educational training • Assist to manage any plan or committee restructuring, develop any subcommittees or groups and provide presentations including neet with individual employees or bargaining groups as directed by Plan Administrator to explain facets of Plan, new plan updates or changes in Plan services or structure • Review and advise on future Plan administrative and operational changes including, but not limited to Plan Providers, consultants, fund investments, and investment strategies • Act as Fiduciary on all investment options by providing investment advice on a regular basis to the Plan regarding the plan assets in accordance with the provisions of this agreement as necessary and provide documented investment advice and analysis on all recommendations regarding plan assets for the 457, 3121 and any other future City plan • Review Benefit Funding Services Group Quarterly Reviews, analysis and reports and provide feedback and recommendations and attend Quarterly meetings as required • Assist in overseeing any vendor relationships including Plan Provider, Trustee, and other consultants, and perform due diligence and benchmarking of delegated vendors and professional needed to perform plan administration 25J -45 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: Sonia Carvalho City A torney Sa doval hiof Assistant City Attorney RECOMMENDED FOR APPROVAL: Francisco Gutierrez Executive Director Finance & Management Services CONSULTANT 29250 Wrangler Drive Murrieta, California 92563 Fiduciary Experts, LLC CITY OF SANTA ANA David Cavazos City Manager 7 25J -46