HomeMy WebLinkAbout2002-12-17; City Council; Resolution 2002-3621
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RESOLUTION NO. 2002-362
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, AMENDING THE CITY’S DEFERRED
COMPENSATION PLAN TO INCORPORATE RECENT TAX LAW
CHANGES AND AUTHORIZING THE CITY MANAGER TO
IMPLEMENT FUTURE MANDATORY LEGAL REOUIRMENTS.
WHEREAS, by Resolution No. 5948 adopted October 2, 1979, the City of Carlsbad
established a deferred compensation plan (“the Plan”) for its employees and authorized the
administration of the Plan by the City Manager of the City of Carlsbad; and
WHEREAS, on May 26, 1981, the City of Carlsbad amended the Plan (1) to change
the maximum amount of compensation Plan participants could defer on an annual basis, (2)
to allow Plan participants to change from one available investment option to another; and (3)
to add additional investment options to participants, some of which are provided and
administered by the Aetna Life Insurance and Annuity Company (“Aetna,’) and some of
which are provided and administered by the International City Managers’ Association -
Retirement Corporation (“ICMA-RC”).
WHEREAS, on June 25, 1991, in response to Section 11332 of the Omnibus Budget
Reconciliation Act of 1990, the City of Carlsbad amended the Plan to include part-time
employees and Council Members not participating in the Public Employees’ Retirement
System and to add investment options for them; and
WHEREAS, it is intended that the Plan be consistent with federal and state laws and
regulations; and
WHEREAS, changes made to Section 457 of the Internal Revenue Code as a result
of the Small Business Job Protection Act of 1996, the Taxpayer Relief Act of 1997, the
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Economic Growth and Tax Relief Reconciliation Act of 2001, and most recently the Job
Creation and Worker Assistance Act of 2002 require corresponding changes to the structure
of the Plan and allow for increased contributions to and other enhancements in the Plan.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Carlsbad, California, as follows:
1. That the above recitations are true and correct.
2. That, effective January 1,2002, the City Council hereby amends and restates
the City of Carlsbad Deferred Compensation Plan and Trust which is attached and
incorporated by reference.
3. That the assets of the Plan shall be held in trust, with the City serving as
Trustee, for the exclusive benefit of Plan participants and their beneficiaries, and the assets
shall not be diverted to any other purpose.
4. That the City Manager or a designee is hereby authorized to execute all
documents necessary to implement and administer the amended and restated Plan, effective
January 1,2002.
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5. That the City Manager or a designee is hereby authorized to make any future
Plan amendments necessary to implement any mandatory legal requirements once the
amendments are in a form approved by the City Attorney, and provided the City Manager
notifies the City Council of the amendments within sixty days after they are made.
PASSED, APPROVED, AND ADOPTED at a regular meeting of the Carlsbad City
Council held on the 17thday of DECEMBER ,2002, by the following vote, to wit:
AYES: Council Members Lewis, Finnila, Kulchin, Hall, Packard
NOES: None
ABSENT: None
ATTACHMENT 1
CITY OF CARLSBAD
DEFERRED COMPENSATION PLAN & TRUST
As Amended and Restated Effective January 1,2002
Article 1. Purpose
On October 2, 1979, the City of Carlsbad (“City”) adopted the City of Carlsbad Deferred Compensation Plan
(“Plan”) for its employees. The purpose of the Plan is to allow eligible employees to defer a portion of their
compensation in accordance with the provisions of Section 457 of the Internal Revenue Code of 1986, as amended
(“Code”).
On May 26,198 1, the City amended the Plan: (1) to change the maximum amount of compensation Plan
Participants could defer annually; (2) to allow Plan Participants to change from one available investment option to
another; and (3) to add additional investment options, some of which are provided and administered by Aetna Life
Insurance and Annuity Company (“Aetna”) and some of which are provided and administered by International City
Managers’ Association - Retirement Corporation (“ICMA-RC”).
On June 25, 1991, in response to Section 11332 of the Omnibus Budget Reconciliation Act of 1990, the City
amended the Plan to include part-time employees and to add investment options for them, which are provided and
administered by Lincoln National Life Insurance Company (“Lincoln”). For these employees, participation in the
Plan is a substitute for contributing to the federal Social Security system.
Recent changes were made to Section 457 as a result of the Small Business Job Protection Act of 1996, the
Taxpayer Relief Act of 1997, the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA), and the
Job Creation and Worker Assistance Act of 2002. These changes necessitate further amendments to the Plan to
ensure the Plan’s continued compliance with federal law. In addition, amendments are required to clarify existing
Plan provisions and to memorialize existing Plan administration practices. Therefore, the City of Carlsbad hereby
amends and restates the plan as provided herein effective as of January 1,2002.
Article 11. Definitions
2.01 Account: The bookkeeping account maintained for each Participant reflecting the cumulative amount of the
Participant’s Deferred Compensation, including any income, gains, losses, or increases or decreases in market value
attributable to the City’s investment of the Participant’s Deferred Compensation, and further reflecting any
distributions to the Participant or the Participant’s Beneficiary and any fees or expenses charged against such
Participant’s Deferred Compensation.
2.02 Accounting Date: Each business day that the New York Stock Exchange is open for trading, as provided in
Section 6.07 for valuing the Trust assets.
2.03 Administrator: The entity or entities named to provide certain investment alternatives and to carry out certain
nondiscretionary administrative functions under the Plan, as hereinafter described. The City may remove any entity
as Administrator upon 60 days’ advance notice in writing to such entity, in which case the City may name another
entity to act as Administrator. The Administrator may resign upon 60 days‘ advance notice in writing to the City, in
which case the City may name another entity to act as Administrator.
2.04 Automatic Distribution Date: Prior to January 1,2002, “Automatic Distribution Date” means the 60’ day of
the calendar year after the Plan Year of the Participant’s retirement or any other date permitted under the regulations
promulgated under code section 457. On or after January 1,2002, “Automatic Distribution Date” means April 1 of
the calendar year after the Participant attains age 70 !h or, if later, has a Severance Event.
2.05 Beneficiary: The person or persons designated by the Participant in hisiher Participation Agreement who shall
receive any benefits payable hereunder in the event of the Participant’s death. In’the event that the Participant names
two or more Beneficiaries, each Beneficiary shall be entitled to equal shares of the benefits payable at the
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Participant‘s death, unless otherwise provided in the Participant’s Participation Agreement. If no beneficiary is
designated in the Participation Agreement, if the designated Beneficiary predeceases the Participant, or if the
designated Beneficiary does not survive the Participant for a period of fifteen (1 5) days, then the estate of the
Participant shall be the Beneficiary. The Participant shall be responsible for obtaining appropriate consent of his or
her spouse in the event the Participant designates someone other than his or her spouse as Beneficiary.
2.06 Deferred Compensation: The amount of Normal Compensation otherwise payable to the Participant which
the Participant and the City mutually agree to defer hereunder, any amount credited to a Participant‘s Account by
reason of a transfer under section 6.09, a rollover under section 6.10, or any other amount which the City agrees to
credit to a Participant‘s Account.
2.07 Dollar Limitation: The applicable dollar amount within the meaning of section 457(b)(2)(A) of the Code, as
adjusted for the cost-of-living in accordance with section 457(e)(15) of the Code.
2.08 Eligible Employee: Any individual who is an elected official of the City or who is appointed on a regular,
provisional, or probationary basis and who receives monetary compensation for performing services for the City.
“Eligible Employee” excludes volunteers, contractors, and individuals who are appointed and perform services for
the City without compensation or on a temporary, emergency or seasonal basis.
2.09 457 Catch-Up Dollar Limitation: Prior to January 1, 2002, “457 Catch-Up Dollar Limitation” means
$15,000. On and after January 1, 2002, “457 Catch-Up Dollar Limitation” means twice the Dollar Limitation.
2.10 Includible Compensation: The amount of a Participant’s compensation from the City for a taxable year that is
attributable to services performed for the City and that is includible in the Participant’s gross income for federal
income tax purposes as defined in Section 415(c)(3) of the Code. Includible Compensation shall be determined
without regard to any community property laws.
2.11 Normal Compensation: The amount of compensation which would be payable to a Participant by the City for
a taxable year if no Participation Agreement were in effect to defer compensation under this Plan.
2.12 Normal Limitation: The maximum amount of Deferred Compensation for any Participant for any taxable year
(other than amounts referred to in Sections 6.09 and 6.10).
2.13 Normal Retirement Age: Age 70-1/2, unless the Participant has elected an alternate Normal Retirement Age
by written instrument delivered to the Administrator prior to a Severance Event. A Participant’s Normal Retirement
Age determines the period during which a Participant may utilize the 457 Dollar Limitation of Section 5.02(b).
Once a Participant has to any extent utilized the catch-up limitation of Section 5.02(b), hisiher Normal Retirement
Age may not be changed.
In selecting an alternate Normal Retirement Age, a Participant who is also a member of CalPERS may choose any
age which is (1) not earlier than the earliest date at which the Participant will be eligible to retire and receive
unreduced retirement benefits from CalPERS, and (2) not later than the date the Participant will attain age 70-1/2.
A Participant who is not a member of CalPERS may choose any age which is (1) not earlier than age 55, and (2) not
later than age 70-112.
Notwithstanding the above, the Normal Retirement Age of a Participant who continues in the service of the City
after attaining age 70-1/2, and who has not previously elected an alternate Normal Retirement Age, shall not be later
than the mandatory retirement age, if any is established by the City, or the age at which the Participant actually has a
Severance Event.
2.14 Participant: Any Eligible Employee who has joined the Plan pursuant to the requirements of Article IV.
2.15 Participation Agreement: An agreement entered into between an Eligible Employee and the City, including
any amendments or modifications thereto. Such agreement shall fix the amount of Deferred Compensation, specify
a preference among the investment alternatives designated by the City, designate a Beneficiary or Beneficiaries, and
incorporate the terms, conditions, and provisions of the Plan by reference.
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2.16 Percentage Limitation: Prior to January 1,2002, the Percentage Limitation means 33-1/3 percent of the
Participant's Includible Compensation for the taxable year, which will ordinarily be equivalent to the lesser of the
Dollar Limitation in effect for the taxable year or 25 percent of the Participant's Normal Compensation. After
December 3 1,2001, the Percentage Limitation means 100 percent of the Participant's Includible Compensation for
the taxable year.
2.17 Plan Year: The calendar year.
2.18 Retirement: The first date upon which both of the following shall have occurred with respect to a Participant:
Severance Event and attainment of Normal Retirement Age.
2.19 Severance Event: Prior to January 1,2002, severance of the Participant's employment with the City that
constitutes a "separation from service" within the meaning of Section 402(d)(4)(A)(iii) of the Code. After December
31,2001, a Severance Event means a severance of the Participant's employment with the City within the meaning
of Section 457(d)( l)(A)(ii) of the Code.
In general, a Participant shall be deemed to have experienced a Severance Event for purposes of this Plan when, in
accordance with the established practices of the City, the employment relationship is considered to have actually
terminated.
2.20 Trust: The Trusts created under Article VI of the Plan which shall consist of all compensation deferred under
the Plan, plus any income and gains thereon, less any losses, expenses and distributions to Participants and
Beneficiaries.
Article 111. Administration
3.01 Duties of the City: The City, through the City Manager or delegatee, shall have the authority to make all
discretionary decisions affecting the rights or benefits of Participants which may be required in the administration of
this Plan. The City's decisions shall be afforded the maximum deference permitted by applicable law.
3.02 Duties of Administrator: The Administrator, as agent for the City, shall perform nondiscretionary
administrative functions in connection with the Plan, including the maintenance of Participants' Accounts, the
provision of periodic reports of the status of each Account, and the disbursement of benefits on behalf of the City in
accordance with the provisions of this Plan.
Article IV. Participation in the Plan
4.01 Initial Participation: An Eligible Employee may become a Participant by executing a Participation
Agreement. Compensation will be deferred for any calendar month only if a Participant Agreement providing for
the deferral has been entered into before the beginning of that month, or by such other date as may be permitted
under the Code.
In the case of a newly elected or appointed Eligible Employee, compensation will be deferred for the calendar
month during which the Eligible Employee takes office or is appointed if a Participation Agreement providing for
the deferral is entered into on or before the day the Eligible Employee takes office or is appointed, or by such other
date as may be permitted under the Code.
4.02 Available Investment Alternatives:
(a) Part-Time Employees: Appointed Eligible Employees who perform compensated services less than
one thousand forty (1,040) hours in a fiscal year may participate in the investment alternatives
provided and administered by Lincoln. Because participation in these alternatives is a substitute for
contributing to the federal Social Security system, Participants must defer a minimum of 3.75 percent
(50 %) of their compensation. The City will contribute an additional 3.75 percent (50 %) for each
Participant.
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(b) Elected Officials and Full-Time Employees: Elected Eligible Employees and appointed Eligible
Employees who perform compensated services for one thousand forty (1,040) hours or more in a fiscal
year may participate in either the investment alternatives provided and administered by Aetna, the
investment alternatives provided and administered by ICMA-RC, or both. However, the amount of
compensation deferred in any calendar year may not exceed the limits specified in Section 5.01 or, if
applicable, Section 5.02.
4.03 Amendment of Participation Agreement:
(a) Changes to Beneficiary, Deferred Amount or Available Investment Programs: A Participant may:
(i) add or change a Beneficiary;
(ii) change the amount of compensation to be deferred under the Plan in the future (subject to the
(iii) change the alternatives into which the Participant’s future deferred compensation is invested
limits specified in Section 5.01 or, if applicable, Section 5.02); or
by executing an amendment to hisher Participation Agreement reflecting the desired changes. An
amendment to add or change a Beneficiary becomes effective immediately. All other amendments
become effective on the beginning of the calendar month after the amendment is executed, or such
other date as may be permitted under the Code.
(b) Suspension of Participation: A Participant may suspend participation in the Plan at any time upon
executing an amendment of hisher Participation Agreement reflecting this desire. The Amendment
will become effective on the beginning of the calendar month after the amendment is executed.
Depending on the Participant’s Account balance and the length of the suspension, the provisions of
Section 7.07 may apply. In addition, for part-time employees, participation in the Plan is a substitute
for contributing to the federal Social Security system. Consequently, if a part-time employee suspends
hisher participation in the Plan, the employee will begin to have Social Security taxes withheld from
hisher paycheck at the same time the suspension becomes effective.
(c) Reinstatement of Participation: A Participant who has:
(i) suspended hisher participation in the Plan; or
(ii) has received all of the amount he/she previously deferred under the Plan under the provisions
(iii) has been reelected or reappointed following a Severance Event
in Section 7.02; or
may again become a Participant by executing a new Participation Agreement in the manner and under the
conditions prescribed in Sections 4.01 and 4.02.
4.04 Leave of Absence: A Participant on an approved leave of absence may continue to participate in the Plan
subject to all the terms and conditions of the Plan, Further, a Participant may continue to defer compensation while
on an approved leave of absence if the Participant continues to receive compensation from the City during such
time.
4.05 Military Leave: The Plan will be administered in accordance with Section 414(u) of the Code for Participants
who return to work after absences due to military service. This includes make-up contributions that were not made
during the Participant’s period of military service. Contributions made up will be subject to the annual contribution
limits for the year in which they relate, rather than the year in which they are made.
Article V. Limitations on Deferrals
5.01 Normal Limitation: Except as provided in Section 5.02, the maximum amount of Deferred Compensation for
any Participant for any taxable year shall not exceed the lesser of the Dollar Limitation or the Percentage Limitation.
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5.02 Catch-Up Limitations:
(4 Catch-Up Contributions for Participants Age 50 and Over: A Participant who has attained the age of 50 before the close of the Plan Year, and with respect to whom no other elective
deferrals may be made to the Plan for the Plan Year by reason of the Normal Limitation of
Section 5.01, may enter into a Participation Agreement to make elective deferrals in addition
to those permitted by the Normal Limitation in an amount not to exceed the lesser of (1) the
applicable dollar amount as defined in Section 414(v)(2)(B) of the Code, as adjusted for the
cost-of-living in accordance with Section 414(v)(2)(C) of the Code, or (2) the excess (if any)
of (i) the Participant’s compensation (as defined in Section 415(c)(3) of the Code) for the year,
over (ii) any other elective deferrals of the Participant for such year which are made without
regard to this Section 5.02(a). An additional contribution made pursuant to this Section
5.02(a) shall not, with respect to the year in which the contribution is made, be subject to any
otherwise applicable limitation contained in Section 5.01 above, or be taken into account in
applying such limitation to other contributions or benefits under the Plan or any other plan.
This Section 5.02(a) shall not apply in any year to which Section 5.02(b) applies. The
provisions of this Section 5.02(a) of the Plan shall only apply on and after January 1,2002.
(b) Last Three Years Catch-Up Contribution: For each of the last three (3) taxable years for a Participant ending before his or her Normal Retirement Age, the maximum amount of
Deferred Compensation shall be the lesser of: (1) the 457 Catch-Up Dollar Limitation, or (2)
the sum of (i) the Normal Limitation for the taxable year, and (ii) the Normal Limitation for
each prior taxable year of the Participant commencing after 1978 less the amount of the
Participant’s Deferred Compensation for such prior taxable years. A prior taxable year shall
be taken into account under the preceding sentence only if (x) the Participant was eligible to
participate in the Plan for such year (or in any other eligible deferred compensation plan
established under Section 457(b) of the Code which is properly taken into account pursuant to
regulations under Section 457), and (y) compensation (if any) deferred under the Plan (or such
other plan) was subject to the Normal Limitation.
5.03 Other Plans: Notwithstanding any provision of the Plan to the contrary, the amount excludable from a
Participant’s gross income under this Plan or any other eligible deferred compensation plan under Section 457(b) of
the Code shall not exceed the limits set forth in Sections 457(b) and 414(v) of the Code. Prior to January 1,2002,
the limits under Section 457(b) of the Code described in the first sentence of this Section 5.03 shall be further
reduced by any amount excluded from gross income under Sections 401(k), 402(e)(3), 402(h)( 1)(B), and 403(b) of
the Code, or any amount with respect to which a deduction is allowable by reason of a contribution to an
organization described in Section 501(c)(18) of the Code.
Article VI. Trust and Investment of Accounts
6.01 Ownership of Assets:
Notwithstanding any contrary provision of the Plan, all amounts of compensation deferred under the Plan, all
property and rights purchased with such amounts, and all income attributable to such amounts, property, or rights
shall be held in the trusts established in Section 6.02 (or a custodial or annuity contract described in Section 401(f)
of the Code) (“trusts”), for the exclusive benefit of Participants and Beneficiaries under the Plan.
All amounts of compensation deferred under the Plan shall be transferred to the trusts within a period that is not
longer than is reasonable for the proper administration of the Participant Accounts. To comply with this
requirement, all amounts of compensation deferred under the Plan shall be transferred to the trusts not later than 15
business days after the end of the month in which the compensation would otherwise have been paid to the
Participant.
6.02 Investment of Deferred Compensation: Trusts are hereby created to hold all assets of the Plan for the
exclusive benefit of Participants and Beneficiaries, except that expenses and taxes may be paid from the Trust as
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provided in Section 6.04. The trustee shall be the City or such other person who agrees to act in that capacity
hereunder.
6.03 Investment Powers: The trustee, or a Plan Administrator acting as agent for the trustee, shall have the powers
listed in this Section with respect to investment of Trust assets, except to the extent that the investment of Trust
assets is directed by Participants, pursuant to Section 6.06.
(a) To invest and reinvest the Trust assets without distinction between principal and income in common or preferred
stocks, shares of regulated investment companies and other mutual funds, bonds, loans, notes, debentures,
mortgages, certificates of deposit, contracts with insurance companies including but not limited to insurance,
individual or group annuity, deposit administration, and guaranteed interest contracts, deposits at reasonable rates of
interest at banking institutions including but not limited to savings accounts and certificates of deposit. Trust assets
may be invested in securities that involve a higher degree of risk than investments that have demonstrated their
investment performance over an extended period of time.
(b) To invest and reinvest all or any part of the Trust assets in any common, collective or commingled trust fund
that is maintained by a bank or other institution and that is available to employee plans described under sections 457
or 401 of the Code, or any successor provisions thereto, and during the period of time that an investment through
any such medium shall exist, to the extent of participation of the Plan, the declaration of trust of such common,
collective, or commingled trust fund shall constitute a part of this Plan.
(c) To invest and reinvest all or any part of the Trust assets in any group annuity, deposit administration or
guaranteed interest contract issued by an insurance company or other financial institution on a commingled or
collective basis with the assets of any other 457 plan or trust qualified under section 401(a) of the Code or any other
plan described in section 401(a)(24) of the Code, and such contract may be held or issued in the name of the Plan
Administrator, or such custodian as the Plan Administrator may appoint, as agent and nominee for the City. During
the period that an investment through any such contract shall exist, to the extent of participation of the Plan, the
terms and conditions of such contract shall constitute a part of the Plan.
(d) To hold cash awaiting investment and to keep such portion of the Trust assets in cash or cash balances, without
liability for interest, in such amounts as may from time to time be deemed to be reasonable and necessary to meet
obligations under the Plan or otherwise to be in the best interests of the Plan.
(e) To hold, to authorize the holding of, and to register any investment to the Trusts in the name of the Plan, the
City, or any nominee or agent of any of the foregoing, including the Plan Administrator, or in bearer form, to
deposit or arrange for the deposit of securities in a qualified central depository even though, when so deposited,
such securities may be merged and held in bulk in the name of the nominee of such depository with other securities
deposited therein by any other person, and to organize corporations or trusts under the laws of any jurisdiction for
the purpose of acquiring or holding title to any property for the Trusts, all with or without the addition of words or
other action to indicate that property is held in a fiduciary or representative capacity but the books and records of
the Plan shall at all times show that all such investments are part of the Trusts.
(f) Upon such terms as may be deemed advisable by the City or the Plan Administrator, as the case may be, for the
protection of the interests of the Plan or for the preservation of the value of an investment, to exercise and enforce
by suit for legal or equitable remedies or by other action, or to waive any right or claim on behalf of the Plan or any
default in any obligation owing to the Plan, to renew, extend the time for payment of, agree to a reduction in the rate
of interest on, or agree to any other modification or change in the terms of any obligation owing to the Plan, to
settle, compromise, adjust, or submit to arbitration any claim or right in favor of or against the Plan, to exercise and
enforce any and all rights of foreclosure, bid for property in foreclosure, and take a deed in lieu of foreclosure with
or without paying consideration therefor, to commence or defend suits or other legal proceedings whenever any
interest of the Plan requires it, and to represent the Plan in all suits or legal proceedings in any court of law or equity
or before any body or tribunal.
(8) To employ suitable consultants, depositories, agents, and legal counsel on behalf of the Plan.
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(h) To open and maintain any bank account or accounts in the name of the Plan, the City, or any nominee, or agent
of the foregoing, including the Plan Administrator, in any bank or banks for the purpose of carrying out the business
of the Plan.
(i) To do any and all other acts that may be deemed necessary to carry out any of the powers set forth herein.
6.04 Taxes and Expenses: All taxes of any and all kinds whatsoever that may be levied or assessed under existing
or hture laws upon, or in respect to the Trusts, or the income thereof, and all commissions or acquisitions or
dispositions of securities and similar expenses of investment and reinvestment of the Trust assets, shall be paid from
the Trusts. Such reasonable compensation of the Plan Administrator, as may be agreed upon from time to time by
the City and the Plan Administrator, and reimbursement for reasonable expenses incurred by the Plan Administrator
in performance of its duties hereunder (including but not limited to fees for legal, accounting, investment and
custodial services) shall also be paid from the Trusts.
6.05 Payment of Benefits: The payment of benefits from the Trusts in accordance with the terms of the Plan may
be made by the Plan Administrator, or by any custodian or other person so authorized by the City to make such
disbursement. The Plan Administrator, custodian or other person shall not be liable with respect to any distribution
of Trust assets made at the direction of the City.
6.06 Investment of Funds: In accordance with uniform and nondiscriminatory rules established by the City and the
Plan Administrator, the Participant may direct hisher Accounts to be invested in one (1) or more of the investment
alternatives available to the Participant under the Plan; provided, however, that the Participant's investment
directions shall not violate any investment restrictions established by the City. Neither the City, the Administrator,
nor any other person shall be liable for any losses incurred by virtue of following such directions or with any
reasonable administrative delay in implementing such directions.
6.07 Valuation of Accounts: As of each Accounting Date, the Plan assets held in each investment fund offered
shall be valued at fair market value and the investment income and gains or losses for each fund shall be
determined. Such investment income and gains or losses shall be allocated proportionately among all Account
balances on a fund-by-fund basis. The allocation shall be in the proportion that each such Account balance as of the
immediately preceding Accounting Date bears to the total of all such Account balances as of that Accounting Date.
For purposes of this Article, all Account balances include the Account balances of all Participants and Beneficiaries.
6.08 Crediting of Accounts: The Participant's Account shall reflect the amount and value of the investments or
other property obtained by the City through the investment of the Participant's Deferred Compensation pursuant to
Sections 6.06 and 6.07. It is anticipated that the City's investments with respect to a Participant will conform to the
investment preference specified in the Participant's Participation Agreement, but nothing herein shall be construed
to require the City to make any particular investment of a Participant's Deferred Compensation. Each Participant
shall receive periodic reports, not less frequently than annually, showing the then current value of hisher Account.
6.09 Transfers:
(a) Incoming Transfers: A transfer may be accepted from an eligible deferred compensation plan maintained by
another employer and credited to a Participant's Account under the Plan if (i) the Participant has had a Severance
Event with that employer and become an Eligible Employee of the City, and (ii) the other employer's plan provides
that such transfer will be made. The City may require such documentation from the predecessor plan as it deems
necessary to effectuate the transfer in accordance with Section 457(e)( 10) of the Code, to confirm that such plan is
an eligible deferred compensation plan within the meaning of Section 457(b) of the Code, and to assure that
transfers are provided for under such plan. The City may refuse to accept a transfer in the form of assets other than
cash, unless the City and the Administrator agree to hold such other assets under the Plan. Any such transferred
amount shall be treated as a deferral subject to the limitations of Article V, except that, for purposes of applying the
limitations of Sections 5.01 and 5.02, an amount deferred during any taxable year under the plan from which the
transfer is accepted shall be treated as if it has been deferred under this Plan during such taxable year and
compensation paid by the transferor employer shall be treated as if it had been paid by the City.
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(b) Outgoing Transfers: An amount may be transferred to an eligible deferred compensation plan maintained by
another employer, and charged to a Participant's Account under this Plan, if (i) the Participant has a Severance
Event with the City and become an employee of the other employer, (ii) the other employer's plan provides that
such transfer will be accepted, and (iii) the Participant and the employers have signed such agreements as are
necessary to assure that the City's liability to pay benefits to the Participant has been discharged and assumed by the
other employer. The City may require such documentation from the other plan as it deems necessary to effectuate
the transfer, to confirm that such plan is an eligible deferred compensation plan within the meaning of Section
457(b) of the Code, and to assure that transfers are provided for under such plan. Such transfers shall be made only
under such circumstances as are permitted under section 457 of the Code and the regulations thereunder.
6.10 Eligible Rollover Distributions:
(a) Effective Date: This Section 6.10 is effective January 1, 2002.
(b) Incoming Rollovers: An eligible rollover distribution may be accepted from an eligible retirement
plan maintained by another employer and credited to a Participant's Account under the Plan. The City
may require such documentation from the distributing plan as it deems necessary to effectuate the
rollover in accordance with Section 402 of the Code and to confirm that such plan is an eligible
retirement plan within the meaning of Section 402(c)(8)(B) of the Code. The Plan shall separately
account for eligible rollover distributions from any eligible retirement plan that is not an eligible
deferred compensation plan described in Section 457(b) of the Code maintained by an eligible
governmental employer described in Section 457(e)( l)(A) of the Code.
(c) Outgoing Rollovers: Notwithstanding any provision of the Plan to the contrary that would otherwise
limit a distributee's election under this Section, a distributee may elect, at the time and in the manner
prescribed by the Plan Administrator, to have any portion of an eligible rollover distribution paid
directly to an eligible retirement plan specified by the distributee in a direct rollover.
(d) Definitions:
Eligible Rollover Distribution: An eligible rollover distribution is any distribution of all or
any portion of the balance to the credit of the distributee, except that an eligible rollover
distribution does not include: any distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for the life (or life expectancy) of
the distributee or the joint lives (or joint life expectancies) of the distributee and the
distributee's designated beneficiary, or for a specified period of ten years or more; any
distribution to the extent such distribution is required under Sections 401(a)(9) and 457(d)(2)
of the Code; and any distribution made as a result of an unforeseeable emergency of the
employee. For purposes of distributions from other eligible retirement plans rolled over into
this Plan, the term eligible rollover distribution shall not include the portion of any
distribution that is not includible in gross income (determined without regard to the exclusion
for net unrealized appreciation with respect to employer securities).
(2) Eligible Retirement Plan: An eligible retirement plan is an individual retirement account
described in Section 408(a) of the Code, an individual retirement annuity described in Section
408(b) of the Code, an annuity plan described in Sections 403(a) or 403(b) of the Code, a
qualified trust described in Section 40 1 (a) of the Code, or an eligible deferred compensation
plan described in Section 457(b) of the Code which is maintained by an eligible governmental
employer described in Section 457(e)( 1)(A) of the Code, that accepts the distributee's eligible
rollover distribution.
(3) Distributee: A distributee includes an employee or former employee. In addition, the
employee's or former employee's surviving spouse and the employee's or former employee's
spouse or former spouse who is the alternate payee under a qualified domestic relations order,
as defined in Section 414(p) of the Code, are distributees with regard to the interest of the
spouse or former spouse.
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(4) Direct Rollover: A direct rollover is a payment by the plan to the eligible retirement
plan specified by the distributee.
6.11 Trustee-to-Trustee Transfers to Purchase Permissive Service Credit: All or a portion of a Participant’s
Account may be transferred directly to the trustee of a defined benefit governmental plan (as defined in Section
414(d) of the Code) if such transfer is (A) for the purchase of permissive service credit (as defined in Section
415(n)(3)(A) of the Code) under such plan, or (B) a repayment to which Section 415 of the Code does not apply by
reason of subsection (k)(3) thereof, within the meaning of Section 457(e)(17) of the Code.
6.12 Treatment of Distributions of Amounts Previously Rolled Over From 401(a) and 403(b) Plans
and IRAs: For purposes of Section 72(t) of the Code, a distribution from this Plan shall be treated as a distribution
from a qualified retirement plan described in Section 4974(c)( 1) of the Code to the extent that such distribution is
attributable to an amount transferred to an eligible deferred compensation plan from a qualified retirement plan (as
defined in Section 4974(c) of the Code).
6.13 Deemed IUS: Effective for Plan Years beginning after December 3 1, 2002, the City may elect to allow
Eligible Employees to make voluntary employee contributions to a separate account or annuity established under
the Plan that complies with the requirements of Code section 408(q) and any regulations promulgated thereunder.
Such accounts or annuities shall meet the applicable requirements of Code sections 408 or 408A and shall be treated
as an individual retirement plan that is not part of the Plan.
6.14 Employer Liability: In no event shall the Employer’s liability to pay benefits to a Participant under this Plan
exceed the value of the amounts credited to the Participant’s Account; neither the City nor the Plan Administrator
shall be liable for losses arising from depreciation or shrinkage in the value of any investments acquired under this
Plan.
Article VII. Benefits
7.01 Retirement Benefits and Election on Severance Event:
(a) General Rule: Except as otherwise provided in this Article VII, the distribution of a Participant’s
Account shall commence as of a Participant’s Automatic Distribution Date, and the distribution of
such benefits shall be made in accordance with one of the payment options described in Section 7.02.
Notwithstanding the foregoing, but subject to the following paragraphs of this Section 7.01, the
Participant may elect following a Severance Event to have the distribution of benefits commence on a
fixed determinable date other than that described in the preceding sentence, but not later than April 1
of the year following the year of the Participant’s Retirement or attainment of age 70- 1/2, whichever is
later. Prior to January 1,2002, an election made pursuant to the preceding sentence shall not be valid
unless such election is made not less than 30 days prior to the date that the distribution of a
Participant’s Account would otherwise commence.
(b) Additional Delay in Distribution: Prior to January 1, 2002, the Participant may elect to defer the
commencement of distribution of benefits to a fixed determinable date later than the date provided in
Section 7.01(a), but not later than April 1 of the year following the year of the Participant’s retirement
or attainment of age 70 1/2, whichever is later, provided, however, that (a) such election is made after
the 61st day following the Participant’s Severance Event and before commencement of distributions,
(b) the Participant may make only one (1) such election, and (c) such election is made not less than 30
days prior to the date the distribution of a Participant’s Account would otherwise commence. On or
after January 1, 2002, the Participant’s right to change his or her election with respect to
commencement of the distribution of benefits shall not be restrained by this Section 7.01.
Notwithstanding the foregoing, the Administrator, in order to ensure the orderly administration of this
provision, may establish a deadline after which such election to defer the commencement of
distribution of benefits shall not be allowed.
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7.02 Payment Options: As provided in Sections 7.01, 7.04 and 7.05, a Participant may elect to have value of the
Participant's Account distributed in accordance with one of the following payment options, provided that such
option is consistent with the limitations set forth in Section 7.03.
(a) Equal monthly, quarterly, semi-annual or annual payments in an amount chosen by the Participant, continuing
until hisher Account is exhausted;
(b) One lump-sum payment;
(c) Approximately equal monthly, quarterly, semiannual or annual payments, calculated to continue for a period
certain chosen by the Participant.
(d) Annual Payments equal to the minimum distributions required under Section 401(a)(9) of the Code, including
the incidental death benefit requirements of Section 401(a)(9)(G), over the life expectancy of the Participant or over
the life expectancies of the Participant and hisher Beneficiary.
(e) Payments equal to payments made by the issuer of a retirement annuity policy acquired by the City.
(0 A split distribution under which payments under options (a), (b), (c) or (e) commence or are made at the same
time, as elected by the Participant under Section 7.0 1, provided that all payments commence (or are made) by the
latest benefit commencement date under Section 7.0 1.
(8) Any other payment option elected by the Participant and agreed to by the City and the Plan Administrator.
A Participant's selection of a payment option made after December 31, 1995, under Subsections (a), (c), or (8)
above may include the selection of an automatic annual cost-of-living increase. Such increase will be based on the
rise in the Consumer Price Index for All Urban Consumers (CPI-U) from the third quarter of the last year in which a
cost-of-living increase was provided to the third quarter of the current year. Any increase will be made in periodic
payment checks beginning the following January.
If, prior to January 1,2002, a Participant made a timely election of a payment date but failed to specify a payment
option or failed to make a timely election of both payment date and option, and as a result, either was defaulted to
benefit commencement at age 65, or such other date as the Participant may have specified, benefits shall be paid
annually in the amount of $100 per year commencing at age 65 or the date specified by the Participant until the
Participant reaches age 70-112. When the Participant reaches age 70-112, payments shall be made in accordance with
Code section 401(a)(9) and the regulations thereunder.
7.03 Limitation on Options: No payment option may be selected by a Participant under subsections 7.02(a) or (c)
unless the amount of any installment is not less than $100. No payment option may be selected by a Participant
under Sections 7.02, 7.04, or 7.05 unless it satisfies the requirements of Sections 401(a)(9) and 457(d)(2) of the
Code, including that payments commencing before the death of the Participant shall satisfy the incidental death
benefits requirement under section 401(a)(9)(G).
7.04 Post-retirement Death Benefits:
(a) Should the Participant die after helshe has begun to receive benefits under a payment option, the remaining
payments, if any, under the payment option shall continue until the Plan Administrator receives notice of
the Participant's death. Upon notice of the Participant's death, benefits shall be payable to the Participant's
Beneficiary commencing not later than December 3 1 of the year following the year of the Participant's
death, provided that the Beneficiary may elect to begin benefits earlier than that date.
(b) If the Beneficiary has not attained age 80 at the time payments commence, he or she may elect to receive
payments in a single lump-sum payment or in equal or approximately equal monthly, quarterly, semi-
annual or annual payments continuing over a period not to exceed ten years from the first payment. The
Beneficiary also may elect to receive a partial lump-sum payment followed by monthly, quarterly, semi-
annual or annual installments, provided that all payments are made within a period of ten years from the
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initial payment. In the event that the Beneficiary is age 80 or over, the remaining balance in the
Participant's account will be paid to the Beneficiary in a single lump sum.
(c) In the event that the Beneficiary dies before the payment of death benefits has commenced or been
completed, the remaining value of the Participant's Account shall be paid to the estate of the Beneficiary in
a lump sum. In the event that the Participant's estate is the Beneficiary, payment shall be made to the estate
in a lump sum.
7.05 Pre-Retirement Death Benefits:
(a) Should the Participant die before helshe has begun to receive the benefits provided by Section 7.01, the
value of the Participant's Account shall be payable to the Beneficiary commencing not later than December
3 1 of the year following the year of the Participant's death, provided that the Beneficiary may elect to begin
benefits earlier than that date.
(b) If the Beneficiary has not attained age 80 at the time payments commence, he or she may elect to receive
payments in a single lump-sum payment or in equal or approximately equal monthly, quarterly, semi-
annual or annual payments continuing over a period not to exceed ten years from the first payment. The
Beneficiary also may elect to receive a partial lump-sum payment followed by monthly, quarterly, semi-
annual or annual installments, provided that all payments are made within a period of ten years from the
initial payment. In the event that the Beneficiary is age 80 or over, the remaining balance in the
Participant's account will be paid to the Beneficiary in a single lump sum.
(c) In the event that the Beneficiary dies before the payment of death benefits has commenced or been
completed, the remaining value of the Participant's Account shall be paid to the estate of the Beneficiary in
a lump sum. In the event that the Participant's estate is the Beneficiary, payment shall be made to the estate
in a lump sum.
7.06 Unforeseeable Emergencies:
(a) In the event an unforeseeable emergency occurs, a Participant may apply to the City to receive that part of
the value of hisiher Account that is reasonably needed to satisfy the emergency need. If such an application
is approved by the City, the Participant shall be paid only such amount as the City deems necessary to meet
the emergency need, but payment shall not be made to the extent that the financial hardship may be
relieved through cessation of deferral under the Plan, insurance or other reimbursement, or liquidation of
other assets to the extent such liquidation would not itself cause severe financial hardship.
(b) An unforeseeable emergency shall be deemed to involve only circumstances of severe financial hardship to
the Participant resulting from a sudden unexpected illness, accident, or disability of the Participant or of a
dependent (as defined in section 152(a) of the Code) of the Participant, loss of the Participant's properly
due to casualty, or other similar and extraordinary unforeseeable circumstances arising as a result of events
beyond the control of the Participant. The need to send a participant's child to college or to purchase a new
home shall not be considered unforeseeable emergencies. The determination as to whether such an
unforeseeable emergency exists shall be based on the merits of each individual case.
7.07 De Minimis Accounts: Notwithstanding the foregoing provisions of this Article, prior to January 1,2002, if
the value of a Participant's Account does not exceed the dollar limit under Section 4 1 l(a)( 1 l)(A) of the Code as
described in Section 457(e)(9)(A) of the Code and (a) no amount has been deferred under the Plan with respect to
the Participant during the 2-year period ending on the date of the distribution and (b) there has been no prior
distribution under the Plan to the Participant pursuant to this Section 7.07, the Participant may elect to receive or the
City may involuntarily distribute the Participant's entire Account without the consent of the Participant. Such
distribution shall be made in a lump sum.
On or after January 1,2002, if the value of a Participant's Account is less than $1,000, the Participant's Account
shall be paid to the Participant in a single lump sum distribution, provided that (a) no amount has been deferred
under the Plan with respect to the Participant during the 2-year period ending on the date of the distribution and (b)
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there has been no prior distribution under the Plan to the Participant pursuant to this Section 7.07. If the value of the
Participant's Account is at least $1000 but not more than the dollar limit under Code Section 41 l(a)(l l)(A) and (a)
no amount has been deferred under the Plan with respect to the Participant during the 2-year period ending on the
date of the distribution and (b) there has been no prior distribution under the Plan to the Participant pursuant to this
Section 7.07, the Participant may elect to receive his or her entire Account. Such distribution shall be made in a
lump sum.
Article VIII. Non-Assignability
8.01 In General: Except as provided in Section 9.02, no Participant or Beneficiary shall have any right to commute,
sell, assign, pledge, transfer or otherwise convey or encumber the right to receive any payments hereunder, which
payments and rights are expressly declared to be non-assignable and non-transferable.
8.02 Domestic Relations Orders:
(a) Allowance of Transfers: To the extent required under a final judgment, decree, or order (including
approval of a property settlement agreement) that (i) relates to the provision of child support, alimony
payments, or marital property rights and (ii) is made pursuant to a state domestic relations law, any portion
of a Participant's Account may be paid or set aside for payment to a spouse, former spouse, child, or other
dependent of the Participant. Where necessary to carry out the terms of such an order, a separate Account
shall be established with respect to the spouse, former spouse, or child who shall be entitled to make
investment selections with respect thereto in the same manner as the Participant; any amount so set aside
for a spouse, former spouse, or child shall be paid out in a lump sum at the earliest date that benefits may
be paid to the Participant, unless the order directs a different time or form of payment. Nothing in this
Section shall be construed to authorize any amount to be distributed under the Plan at a time or in a form
that is not permitted under Section 457(b) of the Code. Any payment made to a person pursuant to this
Section shall be reduced by any required income tax withholding.
(b) Release from Liability to Participant: The City's liability to pay benefits to a Participant shall be reduced to
the extent that amounts have been paid or set aside for payment to a spouse, former spouse, or child
pursuant to paragraph (a) of the Section. No such transfer shall be effectuated unless the City or Plan
Administrator has been provided with satisfactory evidence that the City and the Plan Administrator are
released from any further claim by the Participant with respect to such amounts. The Participant shall be
deemed to have released the City and the Plan Administrator from any claim with respect to such amounts,
in any case in which (i) the City or Plan Administrator has been served with legal process or otherwise
joined in a proceeding relating to such transfer, (ii) the Participant has been notified of the pendency of
such proceeding in the manner prescribed by the law of the jurisdiction in which the proceeding is pending
for service of process in such action or by mail from the City or Plan Administrator to the Participant's last
known mailing address, and (iii) the Participant fails to obtain an order of the court in the proceeding
relieving the City or Plan Administrator from the obligation to comply with the judgment, decree, or order.
(c) Participation in Legal Proceedings: The City and Plan Administrator shall not be obligated to defend
against or set aside any judgment, decree, or order described in paragraph (a) any legal order relating to the
garnishment of a Participant's benefits, unless the full expense of such legal action is borne by the
Participant. In the event that the Participant's action (or inaction) nonetheless causes the City or Plan
Administrator to incur such expense, the amount of the expense may be charged against the Participant's
Account and thereby reduce the City's obligation to pay benefits to the Participant. In the course of any
proceeding relating to divorce, separation, or child support, the City and Plan Administrator shall be
authorized to disclose information relating to the Participant's Account to the Participant's spouse, former
spouse, or child (including the legal representatives of the spouse, former spouse, dependent or child), or to
a court.
Article IX. Relationship to other Plans and Employment Agreements
Revised 8/02
Page 12
This Plan serves in addition to any other retirement, pension, or benefit plan or system presently in existence or
hereinafter established for the benefit of the City's employees, and participation hereunder shall not affect benefits
receivable under any such plan or system. Nothing contained in this Plan shall be deemed to constitute an
employment contract or agreement between any Participant and the City or to give any Participant the right to be
retained in the employ of the City. Nor shall anything herein be construed to modify the terms of any employment
contract or agreement between a Participant and the City.
Article X. Amendment or Termination of Plan
The City may at any time amend this Plan provided that it transmits such amendment in writing to each Plan
Administrator at least 30 days prior to the effective date of the amendment. The consent of the Plan Administrator
shall not be required in order for such amendment to become effective, but a Plan Administrator shall be under no
obligation to continue acting as Plan Administrator hereunder if it disapproves of such amendment. The City may at
any time terminate this Plan.
A Plan Administrator may at any time propose an amendment to the Plan by an instrument in writing transmitted to
the City at least 30 days before the effective date of the amendment. The amendment will not become effective
unless and until it is approved by the City. In the event the amendment is not approved, the Plan Administrator
shall not be obligated to continue acting as Plan Administrator hereunder after providing the City with at least 90
days notice of its intent to cease acting as Plan Administrator.
Except as may be required to maintain the status of the Plan as an eligible deferred compensation plan under section
457(b) of the Code or to comply with other applicable laws, no amendment or termination of the Plan shall divest
any Participant of any rights with respect to compensation deferred before the date of the amendment or
termination.
Article XI. Applicable Law
This Plan and Trust shall be construed under the laws of the state of California with the intent that it meet the
requirements of an "eligible deferred compensation plan" under Section 457(b) of the Code, as amended. The
provisions of this Plan and Trust shall be interpreted wherever possible in conformity with the requirements of that
Section of the Code.
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