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HomeMy WebLinkAbout2002-12-17; City Council; 17013; Amending Deferred Compensation PlanCITY OF CARLSBAD - AGENDA BILL \B # 17,013 DEPT~HD- TITLE: MENDING THE CITY OF CARLSBAD’S DEFERRED COMPENSATION PLAN TO INCORPORATE RECENT TAX IMPLEMENT FUTURE MANDATORY LEGAL REQUIREMENTS CITY MGR~ ATG- 12/17/02 - 3ECOMMENDED ACTION: IEPT. HR CITY ATT@, LAW CHANGES AND TO AUTHORIZE THE CITY MANAGER TO Adopt Resolution No. 2002-362 amending the City of Carlsbad’s Deferred Compensation Plan to incorporate recent tax law changes and authorizing the City Manager or a designee to make any future Plan amendments necessary to implement any mandatory legal requirements. ITEM EXPLANATION: A. Incorporating Recent Tax Law Changes On October 2, 1979, the City of Carlsbad adopted the City of Carlsbad Deferred Compensation Plan for its employees. The purpose of the Plan is to allow eligible employees to defer a portion of their compensation as allowed by Section 457 of the Internal Revenue Code. The City has contracted with Aetna Life Insurance and Annuity Company, Lincoln National Life Insurance Company, and the ICMA Retirement Corporation to administer the City of Carlsbad Deferred Compensation Plan for City employees and to provide investment vehicles for them. On June 25, 1991, in response to Section 1 1332 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. The part-time program is administered by Lincoln National Life Insurance Company (Lincoln) and participation in the plan is a substitute for contributing to the federal Social Security system. Several significant changes have been made to the laws governing section 457 deferred compensation plans in recent years. These changes were enacted 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 most recently the Job Creation and Worker Assistance Act of 2002. While the City’s practices have evolved to incorporate these changes, it is necessary to further amend the City’s Plan to formalize these practices and to ensure the Plan’s continued accuracy and consistency with applicable law. In addition, to ensure these changes apply to deferrals and distributions occurring this tax year, the changes should be made retroactively, effective January 1,2002. Some of the most significant changes concern 1) the annual contribution limits, 2) the portability provisions and 3) the distribution provisions of the Plan: I PAGE 2 OF AB# 17,013 1. Annual Contribution Limits The legislation has increased the annual amount that can be contributed to a 457 deferred compensation plan, allowing participants to save additional funds for retirement. For example, effective January 1,2002, the new limit is the lesser of (1) 100 percent of compensation or (2) the dollar amount in effect that year. The dollar amounts for the next five years are: Contribution Limit 2002 $1 1,000 2003 $12,000 2004 $13,000 2005 $14,000 2006 $15,000 After 2006, the dollar amount will be adjusted for cost-of-living increases in $500 increments. The new legislation also allows those participants who are close to retirement age to save additional funds for retirement by increasing the amount of catch-up contributions that can be made. In addition, the new legislation no longer restricts employees participating in the deferred compensation 457 plan from participating fully in a section 403(b) andor section 401(k) plan, thereby allowing employees to potentially make the maximum contribution to each plan. 2. Portability Provisions The rollover options for individuals in employer-sponsored retirement plans and for IRA owners have been expanded considerably. For example, the new legislation allows for the portability of retirement assets between (to and from) retirement plans, including 401,403(b), governmental 457 plans and Traditional IRAs. Participants may now roll 457 assets to another plan or a Traditional IRA when they are eligible to take a distribution from the 457 plan, and they also may rollover assets into the 457 plan from all plan types and Traditional IRAs. In addition, the new legislation gives 457 plan participants the ability to transfer 457 plan assets on a pre-tax basis to purchase service credits in a defined benefit pension plan, such as CalPERS, or to repay the defined benefit pension plan a prior refund of employee contributions. a PAGE 3 OF AB# 17,013 3. Distribution Provisions The rules for timing of taxation of benefits have been changed to give 457 plan participants the same flexibility as participants under other plans such as 401 (k) plans in terms of when benefits must be paid, how benefits must be paid and the distribution amounts. For example, 457 participants can now revise their payment schedules to meet their changing needs, and the life expectancy tables used to determine minimum required distributions are being revised to reflect current life expectancies. In addition, the new legislation also changes the withholding and reporting requirements affecting 457 plan distributions and changes the method in which benefits under 457 plans are taxed upon divorce. The purpose of the attached Resolution is to amend and restate the Plan, effective January 1 , 2002, to incorporate these legislative changes. B. Addressing Future Mandated Changes The Internal Revenue Service is in the process of promulgating regulations to implement the new legislation and has recently released a draft version of the regulations. The regulations must go through a formal rule-making process and are not expected to be finalized until next year. The proposed Plan amendments incorporate all of the requirements of the draft regulations. Should the final regulations mandate any fkther amendments to the Plan, or should there be hture legislation that mandates Plan amendments, staff is recommending that the City Manager or a designee be given authority to make the necessary amendments once they are in a form approved by the City Attorney and provided that the City Manager or hisher designee notifies the City Council of the amendments within sixty days after the changes are made. This will help ensure that the Plan remains current and retains its status as a tax-favored benefit. Discretionary Plan amendments would continue to be brought to the City Council for consideration and approval. In addition, the City Manager or a designee would continue to have the authority to make day-to-day administrative decisions that are consistent with the Plan. FISCAL IMPACT: There is no fiscal impact associated with these administrative changes to the City of Carlsbad Deferred Compensation Plan. EXHIBITS: 1. Resolution No. 2002-362 (including its Attachment 1: City of Carlsbad Deferred Compensation Plan) 1 2 c 4 E E 7 8 9 10 11 12 13 14 15 16 17 10 19 20 21 22 23 24 25 26 27 20 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 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. Ill Ill Ill Ill /I/ Ill Ill //I 1 2 3 4 5 6 7 a 9 10 11 12 13 14 18 19 20 21 22 23 24 25 26 27 20 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 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 admmistered 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 1 1332 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 Mer 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 II. 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 Admmistrator 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 60th 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 !A 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 Page 1 Revised 8/02 -7 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 wlch 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 70-112, 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), his/her 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 70-1/2. 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 incolporate the terms, conditions, and provisions of the Plan by reference. Page 2 Revised 8/02 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. Page 3 Revised 8/02 (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 hisker 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 hisker participation in the Plan, the employee will begin to have Social Security taxes withheld from hisker paycheck at the same time the suspension becomes effective. (c) Reinstatement of Participation: A Participant who has: (i) suspended hisker 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 adnunistered 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. Page 4 Revised 8/02 5.02 Catch-Up Limitations: (a) 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 5.0 1, 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. 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 Page 5 Revised 8/02 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. (9) To employ suitable consultants, depositories, agents, and legal counsel on behalf of the Plan. Page 6 Revised 8/02 (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 future 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 hisiher 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. Page 7 Revised 8/02 (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 confm 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)(X)(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)( 1)(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: (1) 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 401(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)( l)(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 4 14(p) of the Code, are distributees with regard to the interest of the spouse or former spouse. Page X Revised 8/02 (4) Direct Rollover: A direct rollover is a payment by the plan to the eligible retirement plan specified by the distributee. 6.1 1 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 IRAs: 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. Page 9 Revised 8/02 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 A&ount 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. (f) 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 7.01, provided that all payments commence (or are made) by the latest benefit commencement date under Section 7.01, (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 3 1, 1995, under Subsections (a), (c), or (g) 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 70-1/2, 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 Page 10 Revised 8/02 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 heishe 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 property 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 41 l(a)(l 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) Page 11 Revised 8/02 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 Page 12 Revised 8/02 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. Page 13 Revised 8/02