HomeMy WebLinkAboutC-7775-1 - Agreement for Recordkeeping and Communication Services (456 Deferred Compensation Plan), Amendment No. 1-3�Jn
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Empower Retirement Services
r,
V AMENDMENT NO. 3
to the
AGREEMENT FOR RECORDKEEPING AND COMMUNICATION SERVICES
for
City of Newport Beach
Group No. 98310
THIS AMENDMENT NO. 3 is entered into by and between Empower Annuity Insurance Company of
America (f/k/a Great -West Life & Annuity Insurance Company and referred to herein as "Empower'), and/or
any successor, assign or affiliate, and the City of Newport Beach ("Plan Sponsor") with respect to the
administrative services to be provided by Empower to the City of Newport Beach §457 Deferred
Compensation Plan (98310-01) and City of Newport Beach 401(a) Plan (98310-03);
Effective April 4, 2000, Empower and Plan Sponsor entered into the Agreement for Recordkeeping and
Communication Services ("Agreement'), under which Empower provides certain recordkeeping and
communication services for the Plan Sponsor with respect to the City of Newport Beach §457 Deferred
Compensation Plan (98310-01) Plan (hereinafter referred to as the "Plan");
Effective January 4, 2013, Empower and Plan Sponsor amended the prior Agreement and replaced it in its
entirety with the Amended and Restated Agreement for Recordkeeping and Communication Services
§457(b) Deferred Compensation Plan Group #98310-01 and Group #98310-02 (the "Agreement');
Effective June 1, 2018, Empower and Plan Sponsor amended the prior Agreement and replaced it in its
entirety with the Professional Services Agreement (the "Agreement');
Effective April 22, 2020, Empower and Plan Sponsor entered into Amendment No. 1 to the Agreement
("Amendment No. 1") regarding modification of fee and revenue credit arrangement provisions;
Effective November 1, 2020, Empower and Plan Sponsor entered into Amendment No. 2 to the Agreement
("Amendment No. 2") amending Section 2 (Term), Section 29 (Termination), Section LA (Basic Annual
Administration Fee) of Schedule C under Exhibit B, and Section I.C. (Participant Education) of Schedule C
under Exhibit B.
Empower and Plan Sponsor agree that it is beneficial to amend the Agreement to allow Empower to provide
recordkeeping and communication services for additional Plan Sponsor retirement plans;
NOW, THEREFORE, in consideration of the covenants and conditions herein contained, and other good
and valuable consideration as herein provided, the parties amend the Agreement as follows:
1. The Effective Date of this Amendment No. 3 shall be March 29, 2024.
2. As of the Effective Date, Empower will now be providing administrative services with respect to the
City of Newport Beach 401(a) Plan (98310-03) along with the City of Newport Beach §457(b) Plan
(98310-01).
3. Schedule A List of Plans to the Agreement shall be deleted and replaced in its entirety with a new
Schedule A List of Plans, as attached hereto.
Std Svc Agrmt Amendment No. 3_3/29/2024
4. All references to the 457(b) Plan as set forth in Schedule B Services Schedule, Schedule C Fees
& Compensation, Schedule D Revenue Credit Arrangement, and Schedule E Transition Assistance
Services of the Agreement, shall now apply to both the City of Newport Beach 401(a) Plan (98310-
03) and the City of Newport Beach §457(b) Plan (98310-01).
5. All references to the 457(b) Plan as set forth in the Service Performance Guarantee Exhibit of the
Agreement, shall now apply both the City of Newport Beach 401(a) Plan (98310-03) and the City
of Newport Beach §457(b) Plan (98310-01).
6. In all other respects, the Agreement shall remain in full force and effect.
7. This Amendment No. 3 shall take effect on the Effective Date written above.
8. Each party agrees that this Amendment and any other documents to be delivered in connection
herewith may be electronically signed, and that any electronic signatures reasonably believed to
be genuine on this Amendment or such other documents are the same as handwritten signatures
for the purposes of validity, enforceability, and admissibility.
IN WITNESS WHEREOF, the parties by signing this Amendment No. 3, 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
Amendment No. 3 is not binding on either party until signed by both parties.
For: City of Newport Beach
Signatur
Name: J 1 C e vni
Title:
For: Empower
Signature:
Name:
Title:
Signed in Counterpart
For: Empower
Signature:
Signed in Counterpart
Name:
Title:
Attest:
Date:
Date:
Date:
C
APPROVED AS TO FORM-
Cr
�O EY'S OFFICE
Aaron C. Harp, City Attorney
3/0', -b c.
Std Svc Agrmt Amendment No. 3_3/29/2024
4. All references to the 457(b) Plan as set forth in Schedule B Services Schedule, Schedule C Fees
& Compensation, Schedule D Revenue Credit Arrangement, and Schedule E Transition Assistance
Services of the Agreement, shall now apply to both the City of Newport Beach 401(a) Plan (98310-
03) and the City of Newport Beach §457(b) Plan (98310-01).
5. All references to the 457(b) Plan as set forth in the Service Performance Guarantee Exhibit of the
Agreement, shall now apply both the City of Newport Beach 401(a) Plan (98310-03) and the City
of Newport Beach §457(b) Plan (98310-01).
6. In all other respects, the Agreement shall remain in full force and effect.
7. This Amendment No. 3 shall take effect on the Effective Date written above.
8. Each party agrees that this Amendment and any other documents to be delivered in connection
herewith may be electronically signed, and that any electronic signatures reasonably believed to
be genuine on this Amendment or such other documents are the same as handwritten signatures
for the purposes of validity, enforceability, and admissibility.
IN WITNESS WHEREOF, the parties by signing this Amendment No. 3, 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
Amendment No. 3 is not binding on either party until signed by both parties.
For: City of Newport Beach
Signatur :
Name:
Title: 1 Y Iwc\a,
For: Empower
Signature:
Name: Daniel A. Morrison
Title: Executive Vice President, Government Markets
For: Empower
Signature:
Name: Robert Dwyer
Title: Vice President, Government Markets
Std Svc Agrmt Amendment No. 3_3/29/2024
Date: 5A?/ 2 0a.
APPROVED AS TOFORM*
- B1Y.0 JETS
Y�
Aaron C. Harp, City Attorney
61T/(K -D C_
Date:
03/26/2024
Date: 03/21 /2024
SCHEDULE A
List of Plans
1. City of Newport Beach Deferred Compensation Plan ("457(b) Plan") Group Account
Number: 98310-01
2. City of Newport Beach 401(a) Plan ("401(a) Plan") Group Account Number: 98310-03
Std Svc Agrmt Amendment No. 3_3/29/2024
Important Note: Service Agreement Amendments, Pricing Change Agreements, and other
contractual documents must be duly executed by both parties prior to the effective date of the
changes. Backdating contracts or funding agreements is in violation of our corporate governance
and regulatory requirements. Changes cannot be implemented 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.
Std Svc Agrmt Amendment No. 3_3/29/2024
� 9k3Ij
AGREEMENT FOR RECORDKEEPING AND COMMUNICATION SERVICES
§457 DEFERRED COMPENSATION PLAN
GROUP 98310
This Agreement is entered into by and between Great -West Life & Annuity Insurance Company
(hereinafter referred to as "GWL&A") and the City of Newport Beach (hereinafter referred to as "Plan
Sponsor"), with respect to the recordkeeping and communication services to be provided to the §457
Deferred Compensation Plan (the "Plan").
WHEREAS, the Plan Sponsor has established or adopted the Plan for its eligible employees in
accordance with Section 457 of the Internal Revenue Code ("Code") and all applicable federal
regulations, state and/or municipal statutes for the purpose of providing retirement plan benefits to
employees, and
WHEREAS, the 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 meeting the requirements of Section 457(g) of the Code and will continue to meet such
requirements for the duration of this Agreement, and
WHEREAS, GWL&A has agreed to act in a non -fiduciary capacity as a directed, nondiscretionary
recordkeeper and service provider and GWL&A will perform the services outlined in this Agreement
as directed by Plan Sponsor in compliance with all applicable federal, state and local laws and
regulations.
NOW THEREFORE, the parties hereby agree as follows:
I. GWL&A Recordkeeping Responsibilities
A. Participant Account Information
1. A Participant account will consist of the following participant indicative data
when provided to GWL&A:
a. Name
b. Gender
C. Social Security Number
d. Mailing Address
e. Telephone Number
f. Date of Birth
Agreement for Recordkeeping and Communication Services for City of Newport Beach 3-13-00
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g. Beneficiary Information
2. Current investment allocation for each investment option authorized by the Plan
Sponsor.
3. History of investment allocations by the participant since enrollment in the Plan
from the date GWL&A began providing recordkeeping services to the Plan.
4. Current account balances of each participant in each investment option
authorized by the Plan Sponsor.
5. Record of each transaction made to each investment option authorized by the
Plan Sponsor since enrollment in the Plan from the date GWL&A began
providing recordkeeping services to the Plan.
B. Investment Options
1. Authorized Investment Option Array
Plan Sponsor has selected GWL&A's FutureFunds II package of fixed and
variable annuity investment options for the Plan.
2. Designated Investment Option
Plan Sponsor initially designates the Daily Interest Guarantee Fund II
investment option for amounts received by GWL&A without complete allocation
instructions. (This designation shall remain in effect until Plan Sponsor has
designated a new investment option.) Such amounts will be deposited and held
in the designated investment option until complete allocation information has
been received by GWL&A at its home office in Englewood, Colorado. Once
complete allocation instructions have been received by GWL&A, GWL&A will
update the participant allocation instruction on the system for future
contributions. Funds deposited into the designated investment option will
remain until the participant initiates transfer instructions via the automated voice
response system, Internet, kiosk or client service representative.
C. Valuation of Participant Account Balances
Participant Account Balances held with respect to 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. The term
"Business Day" is defined as any day on which the New York Stock Exchange is
open.
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.
Agreement for Recordkeeping and Communicadon Services for City of Newport Beach 3-13-00
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D. Transaction Timing Related to Contributions and Transfers
1. Contributions
Contributions sent directly on-line to GWL&A's computer system by 11:00 p.m.
Pacific Time will be allocated effective the next Business Day (at that Business
Day's unit value) if GWL&A receives complete and accurate records.
2. Transfers
Participant initiated transfers will be processed and be effective the Business
Day they are received, if received before 1:00 p.m. Pacific Time. If received after
1:00 p.m. Pacific Time, transfers will be processed effective the next Business Day.
E. Automated Voice Response System
Participants will have access to a toll free, automated voice response system which will
provide the following information and services to the participant from a touch tone
telephone:
1. Account balance, in total and by fund;
2. Current interest rates;
3. Unit values and/or share prices;
4. Daily changes in share prices/unit values;
5. Current deferral election (allocation of contributions);
6. Ability to change allocation of future deferrals;
7. Ability to transfer between fund investment options;
8. Ability to change the Personal Identification Number (PIN);
9. Ability to access transaction history; and
10. Ability to activate rebalancer and dollar cost averaging options.
Inquiry services available from the automated voice response system will utilize share
prices, unit values and account balances, which are as of the last calculated unit
value/share price.
The automated voice response system is available 24 hours a day, except for system
maintenance that is generally performed on Sunday mornings.
Agreement for Recordkeeping and Communication Services for City of Newport Beach 3.13-00
3
F. Internet Site
Participants can access the Internet to obtain the following information from the
GWL&A web site:
1. Account balance, in total and by fund;
2. Current interest rates;
3. Unit values and/or share prices;
4. Daily changes in share prices/unit values;
5. Current deferral election (allocation of contributions);
6. Ability to change allocation of future deferrals;
7. Ability to transfer between fund investment options;
8. Ability to request written notification of the Personal Identification Number (PIN)
by mail;
9. Ability to access transaction history; and
10. Ability to activate rebalancer and dollar cost averaging options.
G. Client Service
Client service representatives will be available to answer participant questions between
the hours of 7:00 a.m. Pacific Time and 4:00 p.m. Pacific Time each Business Day,
except the Friday after Thanksgiving. On the Friday after Thanksgiving, transactions
submitted other than by the automated voice response unit, internet or computer link
will not be processed until the next Business Day.
H. Direct On -Line Access to GWL&A's System
GWL&A will allow Plan Sponsor direct on-line access to GWL&A's system to allow the
Plan Sponsor to access the following information or perform the following functions (if
desired by the Plan Sponsor) involved in administering the Plan:
1. Directly process contributions to participant accounts either through on-line
interaction or electronic transmission of files
2. Inquire about participant account information, account balances, allocations and
transaction history
3. Inquire about the plan's basic information, interest rates and unit values
Agreement for Recordkeeping and Communication Services for City of Newport Beach 3-13-00
4. Add a new participant account
5. Change participant information and investment allocations
GWL&A shall make available to Plan Sponsor the software necessary to allow on-line
access to Plan participant records. GWL&A representative(s) will be made available to
assist and train employees of the Plan Sponsor in properly accessing and processing
transactions on to the GWL&A system.
GWL&A's system will be unavailable periodically for maintenance, routine checks and
backups.
Reporting
1. Participant Statements
Each participant will receive a statement of his/her account summarizing all
activity for the previous calendar quarter, including:
a. Beginning and ending balances.
b. All transactions processed during the quarter, including contributions.
C. Interest or change in value.
d. Fees/Charges (if applicable).
e. Transfers and withdrawals for each of the investment options for the
quarter.
Such statements will be mailed within twenty (20) Business Days of the end of
each calendar quarter, except that the first quarterly statement may arrive later
while records are being established. Participant statements are to be mailed to
each participant's last known home address. Additionally, GWL&A will mail to
each participant a confirmation of every completed change. Participants will
also have access to their account activity via a voice response unit, KeyTalk®,
and the Internet. Should Great -West be notified of any errors on a participant's
statement within ninety (90) days after the statement date, Great -West will
retroactively correct such error(s) made within said statement period. However,
should Great -West not be notified of such errors within ninety (90) days of the
statement date, the error(s) will be corrected, but not made effective
retroactively.
2. Employer Reporting
a. Employer Plan Summary
GWL&A will provide to the Plan Sponsor, an Employer Plan Summary
Report summarizing plan level assets and participant account balances
no later than forty-five (45) calendar days after each calendar quarter
end. However, the first statement may be delayed beyond this forty-five
Agreement for Recordkeeping and Communication Services for City of Newport Beach 3-13-00
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(45) calendar day period while records are being set up. The following
plan information is outlined in the report:
1) Account summary—a summarization of plan transactions and
assets.
2) Summarization of contributions processed.
3) Withdrawals.
4) Annuities purchased.
5) Periodic payments.
6) Investment option grand totals—summarizes both dollars and
units/shares and plan activity.
7) Investment option totals by money type—summarizes both dollars
and units/shares and money type activity.
8) Participant summary—report of account activity for each
participant.
GWL&A Communication Responsibilities
A. Special Representations
1. GWL&A representative(s) assigned to perform services under this Agreement
will be properly licensed, trained, qualified and supervised with respect to the
conduct of their business activities.
2. GWL&A representative(s) will provide information and services described in this
Agreement in a manner consistent with applicable insurance and securities laws.
Plan Sponsor acknowledges, however, that the information and services
supplied by GWL&A do not constitute investment or tax advice. GWL&A does
not provide such advice such as that provided by legal, financial, tax or
investment advisors acting in a fiduciary capacity.
3. GWL&A representative(s) will only provide information applicable to this Plan,
and representative(s) islare prohibited from providing services or products not
specifically approved by the Plan Sponsor.
4. No GWL&A representative may discriminate with respect to investment options
provided under the Plan. Representative(s) will give equal and fair
representations when describing the various investment options available under
the Plan.
5. Compensation to representative(s) will not vary based upon investment options
selected by the participants.
Agreement for Recordkeeping and Communication Services for City of Newport Beach 3-93-00
6
B. Enrollment Forms, Communication Material and Presentations
1. GWL&A will be responsible for supplying all forms necessary for the operation of
the plan. All such material will remain the sole property of GWL&A.
2. The above noted forms and materials will include, but not be limited to:
a.
Enrollment forms
b.
Distribution forms
C.
Asset allocation information
d.
Quarterly newsletters
e.
Summary of Plan details
3. Plan Sponsor will have the ability to review any communication material,
presentation material and general topics to be presented. It is agreed that
approval of the Plan Sponsor will not be unreasonably withheld.
4. GWL&A representative(s) will conduct group meetings at which the following will
be communicated, or made available at the request of the participant:
a. Summary of the IRS rules and regulations applicable under the Plan.
b. Summary of the key provisions of the Plan.
C. Summary of investment options, including the name of investment
option's fund manager, investment objective, transfer restrictions (if any),
and risk/return characteristics.
d. Summary of fees charged to participant accounts, if any.
e. Discussions of services including automated voice response system
inquiry, retirement planning, and investment seminars.
f. Instructions on how to sign up for the Plan or request an individual
counseling session.
C. Additional Services
1. GWL&A will provide the following information as requested by a participant:
a. Investment performance data
b. Investment option prospectuses
C. Copies of financial statements
Agreement for Recordkeeping and Communication Services for City of Newport Beach 3-13-00
7
d. Information on annual operating expenses for each investment option
2. Upon request, GWL&A representative(s) will conduct prescheduled individual
counseling sessions utilizing a participant paycheck analysis, an asset allocation
model and retirement counseling services as approved by the Plan Sponsor.
3. GWL&A will provide participant seminars regarding financial investing and
retirement options as requested and approved by Plan Sponsor.
Ill. Miscellaneous Provisions
GWL&A specifically accepts and agrees to each of the following requirements:
A. All books, records, ledgers and journals relating to the Plan will be available, with a 72 -
hour advance notice, for inspection and audit by the Plan Sponsor or its designee at
any time during normal working hours. Records requested will be provided by GWL&A
on electronic media in a standard GWL&A format within thirty (30) days of receipt of the
request.
B. GWL&A may assign any interest in this Agreement and may subcontract any services
of this Agreement to an affiliate.
C. All information obtained by GWL&A from any individual employees, whether the
employee becomes a participant or not, will be kept in absolute confidence and will not
be utilized by GWL&A or any of its officers, directors, agents or employees in
connection with any other matter without prior written consent of the Plan Sponsor.
GWL&A may disclose information as required by law without prior written consent of
the Plan Sponsor. Plan Sponsor agrees GWL&A may use information regarding the
Plan in responses to Requests for Proposals.
D. In connection with the performance of work under the Agreement, GWL&A will not
discriminate against any employee or application for employment because of age, race,
religion, color, handicap, sex, physical condition, developmental disability, sexual
orientation or national origin and will comply with legislative and/or executive
requirements titled "Equal Employment Opportunity," under the Civil Rights Act of 1964,
and the Americans With Disabilities Act (ADA), 42 U.S.C. 12101, et seq. Additionally,
GWL&A will comply with all state non-discrimination laws applicable to the Plan
Sponsor.
E. Upon relinquishing responsibilities at the termination of the Agreement, GWL&A will
provide, if requested, investment balances for all participants to assure appropriate
account balances within sixty (60) Business Days of termination of the Agreement
GWL&A's standard format. GWL&A will be responsible for statements up to and
including the statement for the last calendar quarter covered by this Agreement.
Agreement for Recordkeeping and Communication Services for City of Newport Beach 3-13-00
8
IV. Plan Sponsor Responsibilities
A. Plan Sponsor hereby appoints GWL&A as the exclusive provider of non -discretionary
recordkeeping and communication services for the Plan for the term of this Agreement.
B. Plan Sponsor agrees to electronically remit on-line (directly to GWL&A's system)
payroll deposits and the accounting of deposits among Participants. Funds will be
transmitted via ACH. Plan Sponsor agrees that if the Plan Sponsor changes the
reporting format for contribution reporting, GWL&A will be given two (2) weeks advance
notice to test the new format before monies are remitted on the new file format. If Plan
Sponsor does not provide GWL&A with two (2) weeks advance notice of the new
reporting format, then GWL&A will have two (2) business days to process the monies
sent in with the new file format and the Deposits will be made effective two (2) business
days from receipt of such monies.
C. Plan Sponsor authorizes GWL&A to contact any employee at (his/her) business
address to obtain information needed to perform its services in this Agreement. At the
request of the participant (or with the employee's authorization), GWL&A may contact
the employee at (his/her) home address to obtain information needed to perform its
services in this Agreement.
D. Plan Sponsor agrees to provide GWL&A with all information necessary for GWL&A to
perform its duties under this Agreement.
E. If Plan Sponsor intends that participants choosing individually directed investments
shall relieve Plan Sponsor of responsibility for the participants' investment
performance, Plan Sponsor shall be responsible for complying with the communication
and education requirements similar to those prescribed in ERISA Section 404(c) as
specified in California Statute 53213.5. GWL&A will assist Plan Sponsor in meeting
these requirements as described in Section 11.13 of this Agreement.
F. Plan Sponsor agrees to use its best efforts, including, if necessary, the termination of a
participating investment provider(s), to secure and maintain the cooperation of the
participating investment provider(s) in providing the timely and accurate transmittal of
data, including providing daily interest rates and unit/share values, required by GWL&A
pursuant to its responsibilities to the Plan.
G. Should Plan Sponsor choose a custodial or trust account, Plan Sponsor agrees to
require custodian or trustee to provide GWL&A all information in the possession of
custodian or trustee which is necessary for the performance of GWL&A's duties under
this Agreement.
H. Plan Sponsor agrees to facilitate the scheduling of group and individual presentations
and to provide facilities at which both the Plan Sponsor and GWL&A mutually agree
that satisfactory attendance can be expected.
Agreement for Recordkeeping and Communication Services for City of Newport Beach 3-13-00
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V
Plan Sponsor will be responsible for making final decisions approving early withdrawals
of amounts due to "unforeseeable emergency" as that term is defined in the Section
457 Plan, the Code, and all IRS Regulations issued pursuant to the Code.
J. Plan Sponsor, in applying for coverage of its employees under the GWL&A contract,
hereby authorizes GWL&A to accept all properly completed applications. Plan Sponsor
will not require a signature from the employer signature when a properly completed
application is received.
V. Hold Harmless and Indemnification
GWL&A agrees to hold harmless and indemnify the Plan Sponsor, their affiliates and their
officers, directors, employees or authorized representatives against any and all expenses,
costs, reasonable attorneys fees, settlements, fines, judgments, damages, penalties or court
awards actually incurred which are the result of negligent or fraudulent acts or omissions of
GWL&A, its affiliates and their officers, directors, employees or authorized representatives.
Plan Sponsor agrees to hold harmless and indemnify GWL&A, their affiliates and their
officers, directors, employees and authorized representatives against any and all expenses,
costs, reasonable attorney fees, settlements, fines, judgments, damages, penalties or court
awards actually incurred which are the result of negligent or fraudulent acts or omissions of
the Plan Sponsor, its affiliates and their officers, directors, employees or authorized
representatives.
Plan Sponsor acknowledge that GWL&A, its affiliates and their directors, officers, employees,
and authorized representatives are not responsible for investment performance of any
authorized investment options under the program.
VI. Notification
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 GWL&A will be addressed as follows:
GWL&A Executive Vice President. Financial Services
8515 East Orchard Road
Englewood CO 80111
Notices to Plan Sponsor will be addressed as follows:
Mr. Dennis C. Danner, Finance Director
3300 Newport Blvd., P>O>Box 1768
Newport Beach, CA 92659-1768
Agreement for Recordkeeping and Communication Services for City of Newport Beach 3-13-00
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Each party may designate a different address by sending written notice to the other parties, to
be effective within ten (10) days of the date of the notice.
Agreement for Recordkeeping and Communication Services for City of Newport Beach 3-93-00
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VII. Agreement Term
This Agreement shall be an exclusive contract for a period of five (5) years with an effective
date of March 1, 2000. Unless terminated earlier as provided in Section VIII below, this
Agreement shall remain in effect until February 28, 2005. Thereafter, this Agreement shall
automatically renew for successive one year periods unless terminated as follows:
1. Automatically upon the date the FutureFunds Contract, Group Policy Number
98310GP, as amended, or a successor contract, is no longer currently being offered to
eligible employees under the Plan; or,
2. Upon cancellation by any party upon 90 days prior written notice by Certified Mail to the
addresses herein.
VIII. Termination for Cause
Subject to GWL&A's right to cure, this Agreement may be terminated by the Plan Sponsor for
cause at any time during the Agreement term upon ninety (90) days written notice to GWL&A.
For purposes of this section, "cause" shall be defined as illegal or fraudulent acts, failure to
comply with the terms of the Agreement, or GWL&A's receipt two of the following ratings in
any one (1) year period:
A. A rating of "A" or lower from Standard & Poor's,
B. A rating of "A" or lower from Moody's,
C. A rating of "A" or lower from Duff & Phelps, or
D. A rating of "A" or lower from A.M. Best.
The parties agree that GWL&A will not be considered in default if the reason GWL&A
receives a rating below a rating listed above is as a result of the rating organization
reclassifying the system for other than the financial condition of GWL&A or GWL&A's ratings
group.
Notice to terminate shall be effected by delivery of a written notice specifying the fault of
GWL&A and date upon which such termination becomes effective.
GWL&A shall have the right to cure any failure to comply with the terms of this Agreement
within the ninety (90) day notice period. If GWL&A cures the problem identified in such notice
within the ninety (90) day notice period, this Agreement shall remain in full effect.
Any assets held by GWL&A shall be paid according to the Group Deferred Compensation
Annuity Contract.
IX. Fees
Agreement for Recordkeeping and Communication Services for City of Newport Beach 3-13-00
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The fees for providing all of the recordkeeping and communication services described in this
Agreement shall be assessed according to the Group Deferred Compensation Annuity
Contract between the parties to this Agreement.
X. Modification, Waiver and Consent
No modification or waiver of any provision of this Agreement and no consent by any party to
any deviation from its terms by any other party will be effective unless such modification,
waiver or consent is in writing and signed by all parties. The modification, waiver or consent
will be effective only for the period, on 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.
XI. Arbitration
Any dispute, which arises between the parties with respect to any of the terms of this
Agreement, whether such dispute arises during the term of the Agreement or after its
termination, will be resolved through binding arbitration. Arbitration will be conducted in
accordance with the commercial rules of the American Arbitration Association ("AAA"). Each
party agrees to waive its right, if any, to a jury trial. Each party will bear its own cost in the
arbitration proceedings. The arbitration award may be entered in, and enforced by, any court
of competent jurisdiction.
X11. Entire Agreement
The entire agreement for recordkeeping and communication services between the parties
consists of this Agreement, and this Agreement supersedes any prior agreement or
understanding among the parties hereto.
XIII. Governing Law
This Agreement will be construed and enforced in accordance with and governed by the laws
of the State of California.
XIV. Severability
The provisions of this Agreement are severable, and if for any reason, a clause, sentence or
paragraph of this Agreement will be determined to be invalid by a court or federal or state
agency, board or commission having jurisdiction over the subject matter thereof, such
invalidity will not affect other provisions of this Agreement which can be given effect without
the invalid provision.
XV. Authorized Persons
The Plan Sponsor and any duly appointed investment advisor(s) will furnish a list to GWL&A
(and from time to time whenever there are changes therein) of the individuals authorized to
Agreement for Recordkeeping and Communication Services for City of Newport Beach 3-13-00
13
transmit instructions to GWL&A concerning the Plan and/or assets in the account, and written
direction regarding the form of such instructions.
XVI. Independent Contractor
GWL&A will function as an independent contractor for the purposes of this Agreement, and
will not be considered an employee for any purpose. GWL&A will assume sole responsibility
for any debts or liabilities that may be incurred by GWL&A in fulfilling the terms of this
Agreement, and will be solely responsible for the payment of all federal, state and local taxes
which may accrue because of this Agreement. Nothing in this Agreement will be interpreted
as authorizing GWL&A or its agents and/or employees to act as an agent or representative for
or on behalf of the State or local authority, or to incur any obligation of any kind on the behalf
of the State or local authority. GWL&A agrees that no health/hospitalization benefits, worker's
compensation and/or similar benefits available to the State or local authority employees, will
inure to the benefit of GWL&A, or GWL&A agents and/or employees as a result of this
Agreement.
XVII. Legal Advice
Nothing in this Agreement and nothing contained in any other agreement or communication
constitutes legal or tax advice from GWL&A to the Plan Sponsor or any other party on which
they may rely.
XVIII. Signatures
By signing this Agreement, in duplicate, the parties certify that they have read and understood
it, that they agree to be bound by the terms of the Agreement, that they have the authority to
sign it, and that they have received a signed and dated copy of the Agreement. This
Agreement is not binding on either party until approved by both parties.
PLAN SPONSOR:
City of Newport Beach
By:
Title:
GREAT -WEST LIFE & ANNUITY INSURANCE COMPANY:
By its Assistant Vice
Cunningham
Date d
Date
Agreement for Recordkeeping and Communication Services for City of Newport Beach 3-93-00
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