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HomeMy WebLinkAbout11. Consolidation of City's 457(B) Plan Record-Keeping PlatformsM FROW. OFFICE OF THE CITY MANAGER BY: ANIL GANDHY, FINANCE DIRECTOR IRMA YOUSSEFIEH, HUMAN RESOURCESr' DATE: 1 CONSOLIDATION OF • i PLATFORMS AND TRANSITION OF ADMINISTRATION OF THE CITY's RETIREMENT HEALTH SAVINGS PLAN i 1 • a. That the City Council approve the consolidation of the current four 457(b) deferred compensation plan record -keepers to a single record-keeping platform with Voya effective April 1, 2018; b. Approve the conversion of the Retiree Medical Plan from ICMA-RC to Voya effective April 1, 2018; c. Approve the engagement of SFG Retirement Plan Consulting, LLC as the plan consultant, investment advisor and Co -Fiduciary to City's 457(b) and Retiree Medical plans effective April 1, 2018; and d. Authorize the Director of Finance and Information Technology, as the City's Plan Administrator, to execute the necessary agreements in a form acceptable to the City Attorney. Under Section 457(b) of the Internal Revenue Code, government entities may sponsor a deferred compensation plan, while meeting fiduciary responsibilities under California law, to allow employees to defer income tax on retirement savings into future years. For several years, the City has provided employer sponsored deferred compensation plans under Section 457(b) with four companies: CaIPERS, Nationwide, Voya and ICMA-RC. Under Section 401(h) of the Internal Revenue Code, government entities may sponsor a retiree medical plan, while meeting fiduciary responsibilities under California law, to allow employees to defer income tax on retirement savings into future years. Since the inception of the 401(h) plan ICMA-RC has been the record -keeper and administrator. Under the California State Constitution, Article XVI Section 17, government entities that sponsor a 457(b) and/or 401(h) plan have fiduciary responsibilities to ensure the operation and investment of the public retirement plan is for the exclusive purpose of providing benefits to participants and beneficiaries. The fiduciary responsibilities are to: Invest the assets of the plan, Administer the plan, CONSOLIDATION OF DEFERRED COMPENSATION PLATFORMS&RHS TRANSITION MARCH 27, 2018 PAGE 2 Engage in a prudent process for making all decisions related to the operation of the plan, including decisions related to the plan's investmentsandrelated services, • Ensure plan fees are reasonable Because of the complexity of the investment process and responsibilities, staff met with SFG Retirement Plan Consulting, LLC ("SFGRPC"), a retirement plan consulting firm utilized by many other public agencies, to learn more about recent trends affecting the 457(b) and 401(h) marketplace and laws governing fiduciary requirements for the operation and investment of the City's sponsored plans. As a fiduciary, the City has a responsibility to control the investment choices currently made available in the plans with record keepers CaIPERS, Nationwide, Voya and 1CMA-RC. To ensure the plans and its assets were in accordance with applicable laws and regulations, staff asked SFGRPC to conduct a Request for Proposal (RFP). This was performed at no cost to the City or participants of those plans. The RFP process included a review of all contract related data, including but not limited to: administrative fees associated with those plans, investment options, asset values, fixed account interest rates, and additional fees that may be charged by the plans. SFGRPC also compared the information obtained through the RFI with other record keepers to determine whether the incumbent Plans were competitive and fees assessed from those investment options were reasonable. Based on SFGRPC's analysis and marketing results, it was determined that the plan participants as a whole would benefit by consolidating from four record -keepers to a single record -keeper and transferring their current Retiree Medical Plan from ICMA-RC to Voya. SFGRPC has provided a proposed comprehensive investment menu that is lower in cost than the current menus and provides a higher blended fixed interest rate to plan participants. By aggregating plan assets there is an opportunity for the City to reduce plan and investment fees annually by $144,112 for the 457(b) plan and $15,969 for the Retiree Medical plan, enhance the investment options, and provide participants a competitive fixed interest rate. The fixed interest rate for 457(b) participants will increase from a blended 1.91 % to 2.86%, an estimated positive impact of $61,430. The fixed interest rate for the Retiree Medical Plan participants will increase from 0.60% to 1.49% an estimated positive impact of $5,275. The combination of fee savings and fixed interest earnings provides an estimated $226,785 positive impact to plan assets, benefiting participants based on their asset allocation. In addition 'tothe positive financial impact, the results of the consolidation will provide participants with a comprehensive single platform and education services thereby ensuring all plan participants are offered the same benefits at the same costs. The City is requesting to hire SFGRPC as a consultant to provide investment advisory and consulting services for our plans. SFGRPC will act as a Co -Fiduciary to the plan CONSOLIDATION OF DEFERRED COMPENSATION PLATFORMS & RHS TRANSITION MARCH 27, 2018 PAGE 3 investments and will implement a due diligence process for the City to follow to ensure we are meeting our Fiduciary responsibilities. SFGRPC will provide the City the following services: • Investment Co -Fiduciary • Investment Policy Statement development Investment Menu design • Plan design consulting • Transition leadership and support services to MassMutual • Custom communications • Contract review support • Compliance assistance • Participant education program strategy Participant education program support, including on-site meetings, webinars, one-on-one consultations • Retiree meeting and consultations • Quarterly investment reviews • Fund replacements and manager searches • Vendor management and issue resolution There is no cost to the City to engage the services of SFGRPC. SFGRPC's fees can be paid by the plan. SFGRPC's fee for the services listed is 0.09% of plan assets (0.0225% per quarter) which is approximately $38,800 annually. The City can leverage the positive financial impact to the plan to cover SFGRPC's fees. The $226,785 of positive financial impact is a net calculation after applying SFGRPC's fees. Therefore, at no extra cost to the City or participants, the City is able to obtain the needed Fiduciary, Investment and Advocacy services our City and plan participants need. SFGRPC's Investment Advisory and Service Agreement will not include a minimum contract period which is a benefit to the City. The contract may be terminated with 30 - day notice. Based on the results of the RFP process, it recommended that the City Council approve the consolidation of the current four 457(b) plan record -keepers to a single record-keeping platform with Voya, transfer of the Retiree Medical Plan to Voya, and engage SFGRPC to provide Investment Advisory and Consulting services. SFGRPC will assist the City with consolidating the deferred compensation plans and assist the City in performing its fiduciary responsibilities with respect to 457(b) and 401(h) plans under California law. SFGRPC will also assist the City in educating our employees with the goal of increasing participation and help our employees become more retirement ready. The City of Downey provides employer sponsored deferred compensation plans under Section 457(b) of the Internal Revenue Code ("IRC") and Retiree Health plan collectively herein known as "The Plans." The 457(b) Plan provides tax benefits to 3 CONSOLIDATION OF DEFERRED COMPENSATION PLATFORMS & RHS TRANSITION MARCH 27, 2018 PAGE 4 employees wham make deposits into the Plans on a pre-tax basis for their retirement. The Retiree Health plan provides defined contributions payments by the City to employees for their retirement health cost. The 457(b) Plans provide tax benefits to employees whom make deposits into the Plans on a pre-tax basis for their retirement. Currently, the City offers multiple plan providers (CalPERS, Nationwide, Voya, and ICMA-RC), and has managed the Plans with internal staff. Due to increasing fiduciary responsibilities related to administering and monitoring the Plans under the IRC and California law, staff is recommending that the City Council approve the consolidation of the current four plans into a single record-keeping platform with Voya. As such, Voya would become the record -keeper fora single 457(b) and Retiree Medical plan. Moreover, staff is recommending that the City Council approve the engagement of SFG Retirement Plan Consulting, LLC ("SFGRPC") an independent third -party consultant and investment advisor, to lead the conversion to Voya and provide ongoing plan compliance support, administrative support services, and oversight of the pricing and investment options within the plans. No impact to the general fund. Lower fees and higher blended fixed interest rate for the employees participating in the City's deferred compensation and new money purchase plans. ATTACHMENTS Professional Services Agreement 13 CITY OF DOWNEY PROFESSIONAL SERVICES AGREEMENT CONSULTING,WITH SFG RETIREMENT PLAN • . RETIREMENT ADVISORY CONSULTING This Agreement is made and entered into this 27th day of March, 2018, by and between the City of Downey, a California municipal corporation and charter city with its principal place of business at 11111 Brookshire Avenue, Downey California90241 ("City") and SFG Retirement Plan Consulting, LLC, a California limited liability company, with its principal place of business at 225 South Lake Avenue, Suite 600, Pasadena, California 91101 ("Consultant"). City and Consultant are sometimes individually referred to as "Party" and collectively as "Parties." 2. RECITALS. 2.1 Consultant. Consultant desires to perform and assume responsibility for the provision of certain professional retirement plan investment advisory and consulting services required by City on the terms and conditions set forth in this Agreement.. Consultant represents that it has demonstrated competence and experience in providing retirement plan investment advisory and consulting services to public clients, is licensed in the State of California, and is familiar with the plans of City. City desires to engage Consultant to render such services for 1) the consolidation and conversion of the City's four 457(b) providers to a single provider, Voya, 2) convert City's Retiree Medical Plan with ICMA-RC to Voya, 3) investment advisory services and 4) plan consulting and support services ("Program") as set forth in this Agreement. 3. TERMS. .r- 3.1.1 General Scope of Services. Consultant promises and agrees to furnish to City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional investment advisory, plan consulting and support services necessary for the Program ("Services"). The Services are more particularly described in Exhibit "B" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. 3.1.2 Term. The term of this Agreement shall commence upon council adoption. Unless otherwise determined by written amendment between the parties, this Agreement will terminate as stated in Section 3.5.1.1. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. 3.2.1 Control and, -Payment of Subordinates; Independent Contractor. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall _atall times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (CaIPERS) to be eligible for enrollment in CalPERS as an employee of City, Consultant shall indemnify, defend, andholdharmless CITY for the payment of any employee and/or employer contributions for CaIPERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City. 3.2.2 Conformance to A licable Requirements. All work prepared by Consultant shall be subject to the approval of City. 3.2.3 Substitution of ley Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Program or a threat to the safety of persons or property, shall be promptly removed from the Program by the Consultant at the request of the City. 2 3.2.4 ity'sReresentative'. The City hereby designates the Finance Director, or his or her designee, to act as its representative for the performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for all purposes under this Contract. Consultant shall not accept direction or orders from any person other than the City's Representative or his or her designee. 3.2.5 Consultant's Representative. Consultant hereby designates Mark Shuster, or his or her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.2.6 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times. 3.2.7 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub -consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner consistent with the standard of care set forth herein, shall be promptly removed from the Program by the Consultant and shall not be re-employed to perform any of the Services or to work on the Program. 3.2.8 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all applicable local, state and federal laws, rules and regulations in force at the time the Services are performed by Consultant and in any manner affecting the performance of the Program or the Services, including all applicable Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the 3 Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Consultant shall be solely responsible for all costs arising therefrom. Consultantshalldefend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the applicable indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. Consultant's violation of such laws, rules and regulations shall also constitute a material breach of this Agreement. 3.2.10 Insurance. 3.2.10.1 Time for Compliance. Consultant shall not commence the Services or the Program under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section. The City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience with insurer, coverage or other special circumstances. 3.2.10.2 Minimum l ectuirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement, the Services or the Program by Consultant, its agents,, representatives, employees or subcontractors. Consultant shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage: (A) Minimum Scope of Insurance. (1) Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis including products and completed operations, property damage, bodily injury and personal and advertising injury; (2) Automobile Liability: Insurance Services Office Form Number CA 0001 covering Code 1 (any auto) or if Consultant owns no autos, Code 8 (hired) and 9 (non -owned); and (3) Workers' Compensation Workers' Compensation insurance as required by the State of California with Statutory Limits; and (4) Employer's Liability Insurance. (B) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) Commercial General Liability (CGL): No less than $2,000,000 per occurrence for products and completed operations, bodily injury, property damage and personal and advertising injury. if Commercial General Liability Insurance or other form with general aggregate limit applies, either the general aggregate limit shall apply separately to this Agreement/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit, (2) Automobile Liability: No less than $2,000,000 per accident for bodily injury and property damage; and (3) Workers' Compensation: Workers' Compensation limits as required by the Labor Code of the State of California with Statutory Limits; (4) Employer's Liability: 4 Employer's Liability limits of no less than $2,000,000 per accident for bodily injury or disease. Employer's Liability coverage may be waived by the City if City receives written verification that Consultant has no employees. If the Consultant maintains broader coverage and/or higher limits than the minimum shown in this subdivision 3.2.10.2, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. 3.2.10.3 Professional Liability (Errors & Omissions);. Consultant shall procure and maintain, and require its sub -consultants to procure and maintain, for a period of five (5) years following completion of the Services or the Program, errors and omissions liability insurance appropriate to its profession. Such insurance shall be in an amount not less than $2,000,000 per occurrence or claim and $2,000,000 in the aggregate, and shall be endorsed to include contractual liability. If the Consultant maintains broader coverage and/or higher limits than the minimum shown in this subdivision 3.2.10.3, the City requires and shall be entitled to the broader coverage and/or higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. 3.2.10.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies: (A) Additional Insured Status. The Commercial General Liability policy shall be endorsed to state that: (1) the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to liability arising from the work, Services, Program or operations performed by or on behalf of the Consultant, including materials, parts or equipment furnished in connection with such work, Services. Program or operations; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant's scheduled underlying coverage._ Commercial General Liability insurance coverage may be provided in the form of an endorsement to the Consultant's insurance (at lease as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33 or CG 20 38; and CG 2037 forms if later revisions are used). (B) Waiver of Subrogation. Consultant hereby grants to City a waiver of any right to subrogation which any insurer of said Consultant may acquire against the City by virtue of the payment of any loss under said insurance policies set forth herein. Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. (C) All, overa es. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, 5 voided, reduced or canceled except with written notice by certified mail, return receipt requested to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverageprovidedto the City, its directors, officials, officers, employees, agents and volunteers. 3.2.10.5 Prima Coverage. For any claims related to this Agreement, the Consultant's insurance coverage shall be primary insurance and primary coverage at least as broad as ISO CG 20 01 04 13 with respect to the City, its directors, officials, officers, employees, agents and volunteers. Any insurance or self- insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the Consultant's insurance and shall not be called upon to contribute with it in any way. 3.2.10.6 Separation of Insureds; No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents and volunteers. 3.2.10.7 Deductibles and Self -Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. City may require Consultant to provide proof of ability to pay losses and related investigations, claim administration and defense expenses and costs within the retention. The policy language shall provide or be endorsed to provide that the -self- insured retention may be satisfied by either the named insured or City. 3.2.10.8 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:VII, authorized to do business in California, and satisfactory to the City. 3.2.10.9 Verification of Coverage. Consultant shall furnish City with original certificates of insurance, including all required amendatory endorsements (or copies of the applicable policy language effective coverage required by this provision) and a copy of theDeclarationsand Endorsement Page of the Commercial General Liability policy listing all policy endorsements to the City before the commencement of work under this Agreement. However, failure to obtain the required documents prior to the commencement of work under this Agreement shall not waive the Consultant's obligation to provide them to the City. The City reserves the right to require complete, certified copies of all required insurance policies,_ including endorsements, at any time. 3.2.10.10 Claims -Made Policies. If any of the policies provide coverage on a claims -made basis: (A) The retroactive date must be shown and must be before the date of this Agreement or the date work commences under this Agreement, whichever is earliest; 0 (B) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Services provided under this Agreement; (C) If coverage is canceled, non -renewed, and not replaced with another claims -made policy form with a retroactive date prior to the effective date of this Agreement or the date work commences under this Agreement, whichever is earliest, the Consultant must purchase extended reporting coverage for a minimum of five (5) years after completion of the Services under this Agreement. 3.2.11 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be incompliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life-saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring,_ equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 3.3 Fees And Payments. 3.3.1 Compensation. Consultant shall receivecompensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference. The total compensation shall not exceed 0.09% of plan assets, per annum, less excluded assets without_ written approval of the City. Extra Work may be authorized, as described below, and if authorized, said Extra Work will be compensated as agreed upon between City and Consultant. Except as shown in Exhibit C, Consultant will not receive any other compensation, direct or indirect, for its services under this Agreement. If Consultant receives any other compensation for the Services, Consultant will disclose the amount of such compensation, the services provided for such compensation, the payer of such compensation, and a description of Consultant's arrangement with the payer to Client and will offset that compensation against its stated fees. 3.3.2 Pa trent of Corn ensation. Consultant compensation shall be paid as stated in Exhibit C. 3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City. 3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the 7 Program, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City Manager. 3.4 Accounting Records.. 3.4.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all services and matters covered under this agreement as well as costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 3.5 General Provisions. 3.5.1 Termination of Agreement. 3.5.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time either for cause or for the City's convenience and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof. Consultant may only terminate this Agreement for cause upon giving the City not less than thirty (30) calendar days' written notice. Upon termination, Consultant shall be compensated as set forth in Exhibit C. The following reasons shall constitute "cause" for which either party may terminate this Agreement as provided herein: Substantial failure by the other party to perform in accordance with the terms of this Agreement and through no fault of the terminating party; • Assignment of this Agreement or transfer of the Program by either party to any other entity without the prior written consent of the other party; • Suspension of the Program or the Consultant's Services by the City for more than ninety (90) calendar days, consecutive or in the aggregate, without good cause; • Material changes in the conditions under which this Agreement was entered into, the Scope of Services or the nature of the Program, and the failure of the parties to reach agreement on the compensation and schedule adjustments necessitated by such changes. 0 3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such Documents and Data and other information within fifteen (15) days of the City's request. Consultant may retain copies of said documents and materials as desired, but will deliver all original materials to City upon City's written notice. 3.5.1.3 AdditionalServices. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.5.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: • SFG Retirement Plan Consulting, LLC 225 South Lake Avenue, Suite 600 Pasadena, CA 91101 Phone: (626) 578-0816 Fax: (626) 792-7567 Attn: Mark Shuster, Managing Member CITY: City of Downey 11111 Brookshire Avenue Downey, California 90241 Phone: (562) 904-7286 Fax: (562) 923-6388 Attn: City Manager With a courtesy copy to City of Downey City Attorney's Office 11111 Brookshire Avenue Downey, California 90241 Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.5.3.1 Documents & Data. All documents, data, studies and reports prepared by CONSULTANT under this Agreement are CITY's property. CONSULTANT may retain copies of said documents and materials as necessary for compliance purposes, but will deliver all original materials to CITY upon CITY's written notice. CITY agrees that use of CONSULTANT's completed work product, for purposes other than identified in this Agreement, or use of incomplete work product, is at CITY's own risk. 3.5.3.2 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidentialby Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Program. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Program, or any publicity pertaining to the Services or the Program in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City. This section shall survive the termination of this agreement. 3.5.4 'Cooperation: Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as maybe necessary, appropriate or convenient to attain the purposes of this Agreement.; 3.5.5 Attorney's Fees. In the event of any litigation, whether in a court of law, administrative hearing, arbitration, or otherwise, arising from or related to this Agreement of the services provided under this Agreement, the prevailing party shall be entitled to recover from the non -prevailing party all reasonable costs incurred, including staff time, court costs; attorneys' fees and all other related expenses in such litigation. 3.5.6 Indemnification. 3.5.6.1 General Indemnification. Consultant shall defend (with counsel acceptable to City), indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged negligent acts, errors, omissions or willful misconduct of Consultant, its officials, officers, employees, agents, consultants and contractors arising out of or in connection with the performance of the Services, the Program or this Agreement, including without limitation the payment of all consequential damages and attorneys' fees and other related costs and expenses. Consultant shall defend, at Consultant's own cost, expense and risk, any and all such aforesaid suits, actions or other legal 10 proceedings of every kind that may be brought or instituted against City, its directors, officials, officers, employees, agents or volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding. Consultant shall reimburse City and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials officers, employees, and agents or volunteers. Consultant shall not be obligated to defend, indemnify or hold the City harmless in any manner whatsoever for any claims or liability arising solely out of the City's own negligent acts, errors or omissions or willful misconduct. 3.5.7 Entire Agreement'. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. 3.5.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be the courts in Los Angeles County. 3.5.9 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.5.10 Cit 's'i ht toEmploy Other Consultants'. City reserves right to employ other consultants in connection with this Program. 3.5.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties. 3.5.12 Assignment or Transfer. Neither party shall assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the other party. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 3.5.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply,_ according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subcontractors of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 11 3.5.14 Amendment: Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.5.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise. 3.5.16 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties..; 3.5.17 Invalidity; Severability: if any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.5.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.5.19 Equal Opportunitv Emolovment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, senor age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of any City Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted. 3.5.20 Labor 'Certifi tion. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 3.5.21 Authority to Enter A reement.. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the; individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. 12 3.5.22 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute one and the same instrument. 3.5.23 Effect of Conflict. In the event of any conflict, inconsistency, or incongruity between any provision of this Agreement, any of its exhibits, attachments, purchase order, or notice to proceed, the provisions of this Agreement will govern and control. 3.6 Subcontracting. 3.6.1 Prior Approval Required. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Consultant shall require and verify that all subcontractors maintain insurance meeting all of the requirements set forth in this Agreement. Consultant shall ensure that City is an additional insured as required in Section 3.2.10.4. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. By: Sean Ashton, Mayor Attest. - Maria Alicia Duarte, City Clerk, CMC App ved as to for ette M. A ich-Garcia, City Attorney mck"6'ill1kil'M 11 By: Mark Shuster, Managing Member 13 EXHIBIT "A" I • •ACKWIlLEDGETTEN The CITY acknowledges the followingx 1 The CITY, as the responsible plan fiduciary for the City of Downey §457 Deferred Compensation Plan and Retiree Medical Plan (herein referred to as the "Plans"), has the authority to designate investment alternatives under the Plans and the related trust(s), and to enter into an Agreement with third parties to assist in these and related duties. 2. In performing its Fiduciary Services, CONSULTANT is acting as a fiduciary of the Plans and as a registered investment Consultant under the Investment Consultant's Act of 1940._ CITY acknowledges that it has retained, and will exercise, final decision-making authority and responsibility for the implementation of any recommendations or advice rendered to CITY by CONSULTANT as a Fiduciary Service. 3. In performing the Non -Fiduciary Services, CONSULTANT is not acting as a fiduciary of the Plans. 4. Inperformingboth Non -Fiduciary Services and Fiduciary Services, CONSULTANT does not act as, nor has CONSULTANT agreed to assume the duties of, a trustee or the Plan Administrator, and CONSULTANT has no discretion or responsibility to interpret the Plan documents, to determine eligibility or participation under the Plans, or to take any other action with respect to the management, administration or any other aspect of the Plans. 5. Consultant will perform the Fiduciary Services described in Exhibit B to the Plans in accordance with the standard of care of the prudent man rule set forth in ERISA Section 404(a)(1)(B) or comparable state law. 6. Consultant will perform the Non -Fiduciary Services described in Exhibit B using reasonable business judgment and shall not be liable for any liabilities and claims arising thereunder, unless directly arising from Consultant's intentional misconduct or gross negligence. 7. CONSULTANT does not provide legal or tax advice. 8. Investments are subject to various market, political, currency, economic,- and business risks, and may not always be profitable. As a result, CONSULTANT does not and cannot guarantee financial results. 9. CONSULTANT may, by reason of performing services for other clients, from time to time acquire confidential information. CITY acknowledges and agrees that CONSULTANT is unable to divulge to the CITY or any other party, or to act upon, any such confidential information with respect to its performance of this Agreement. H 10.CONSULTANT is entitled to rely upon all information provided to CONSULTANT (whether financial or otherwise) from reputable third parties or by CITY, CITY's representatives or third -party service providers to CITY, the Plan or the CONSULTANT, without independent verification. CITY agrees to promptly notify CONSULTANT in writing of any material change in the financial and other information provided to CONSULTANT and to promptly provide any such additional information as may be reasonably requested by CONSULTANT. 11. CONSULTANT will not be responsible for voting (or recommending how to vote) proxies of any publicly traded securities (including mutual fund shares) held by the Plans (or its trust(s)). Responsibility for voting proxies of investments held by the Plans or its trust remain with CITY (or, if applicable, the Plans participants). 12.CITY understands that CONSULTANT (i) may perform other services for other clients, (ii) may charge a different fee for other clients, and (iii) may give advice and take action that is different for each client even when retirement plans are similar. 13. CITY acknowledges that Consultant has no responsibility to provide any services related to the following types of assets: real estate (except for real estate funds and publicly traded REITs); stock brokerage accounts or mutual fund windows participant loans; non -publicly traded partnership interests; other non -publicly traded securities (other than collective trusts and similar vehicles); or other hard -to -value securities or assets. Such assets (except for real estate funds, publicly traded REITs, and collective- trusts and similar vehicles) shall be referred to collectively as "Excluded Assets." The Excluded Assets shall be disregarded in determining the Fees payable to Consultant pursuant to Section 3.3 and Exhibit C of this Agreement, and the Fees shall be calculated only on the remaining assets (the "Included Assets"). 14. The person signing the AGREEMENT on behalf of CITY has all necessary authority to do so. 15.The execution of this AGREEMENT and the performance thereof is within the scope of the investment authority authorized by the governing instrument and/or applicable laws. The signatory on behalf of CITY represents that the execution of the AGREEMENT has been duly authorized by appropriate action and agrees to provide such supporting documentation as may be reasonably required by CONSULTANT. 16. The Plans and related Trust(s) permit payment of fees out of Plan assets. CITY has determined that the fees charged by CONSULTANT are reasonable and are the obligation of the Plans; however, if Client desires, it may pay the fees directly, rather than with Plan assets. 17. CITY acknowledges receipt and undertakes to review and consider the disclosures made by CONSULTANT (including in this AGREEMENT, the Form ADV Part 2 and CONSULTANT Privacy Policy), in particular the portions related to services, compensation, and potential conflicts of interest, as well as the remainder of the disclosures concerning, among other matters, background information such as 2 educational and business history, business practices such as the types of Consultant services provided, the methods of securities analysis used, and the like. Further, CITY consents to electronic delivery (via email or other generally accepted method) of current and future distributions of CONSULTANT's Form ADV Part 2 and Privacy Policy. Consent to electronic delivery may be canceled at any time by sending a written request to CONSULTANT. [c3 EXHIBIT "B" FIDUCIARY SERVICES Consultant will perform the following fiduciary services, (i) Provide non -discretionary investment advice to CITY about investment alternatives available for the Plan in accordance with the Plan's investment policies and objectives. City shall have the final decision-making authority regarding the initial selection, retention, and removal of investment options. (ii) Assist in the development of an investment policy statement (IPS). The IPS establishes the investment policies and objectives for the Plan, and shall set forth the asset classes and investment categories to be offered under the Plan, as well as the criteria and standards for selecting and monitoring the investments. City shall have the ultimate responsibility and authority to establish such policies and objectives and to adopt the investment policy statement. (iii) Prepare periodic investment advisory reports that document consistency of fund management and performance to the guidelines set forth in the IPS and make recommendations to maintain or remove and replace investment options. (iv) Meet with City on a periodic basis to discuss reports and recommendations.: (v) Provide investment advice to the City with respect to the selection of a default investment alternative for participants who fail to make an investment election. NON -FIDUCIARY SERVICES Consultant will perform the following Non -Fiduciary services: (i) Assist in the education of the participants in the Plan about general investing principles and the investment alternatives available under the Plan. Consultant will not provide investment advice concerning the appropriateness of any investment option for a particular participant or beneficiary under the Plan and will not be acting as an ERISA fiduciary for purposes of providing educational services. (ii) Assist in the group enrollment meetings designed to increase retirement plan participation among employees. Consultant will not be acting as a fiduciary for purposes of providing enrollment support services. (iii) Distribute plan level newsletters to City (iv) Distribute employee level memos to City for distribution to their Participants (v) Assist City in the transition of record -keepers and/or plan providers (vi) Assist City in their communications with the Vendor (vii) Assist City in coordinating employee education meetings (viii) Assist City in resolving Vendor service issues (ix) Provide initial (one-time) RFP services and plan fee negotiations on behalf of City which will generate compensation as described in Exhibit C. '►� Fees are billed quarterly in arrears. Such quarterly period is the "Billing Period." The billing period will commence the date Voya begins receiving plan assets from the prior record -keepers) or receives City's first payroll contribution to Voya, whichever occurs first. Consultant compensation will be deducted from plan assets and paid to Advisor by Voya. For purposes of determining and calculating fees, Plan assets are valued net of Excluded Assets as of the last day of a calendar quarter, unless otherwise indicated. The annual fee for services shall be calculated as follows: Advisory Services Fee Schedule: 0.09% annually (0.0075% monthly) Plan Conversion Services (First Year Only): Waived The fee will be due and payable within 30 days after the end of each calendar quarter: If this Agreement is terminated prior to the end of a Billing Period, Consultant shall be entitled to a fee, prorated for the number of days in the Billing Period prior to the effective date of termination. All fees are payable to "SFG Retirement Plan Consulting, LLC"