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2004-147RESOLUTION NO. 2004R- 147 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANAHEIM AMENDING THE DEFERRED COMPENSATION PLAN FOR FULL-TIME EMPLOYEES, AS LAST AMENDED BY RESOLUTION 2002R-162, TO CHANGE THE DEFERRED COMPENSATION COMMITTEE COMPOSITION AND TO CLARIFY THE BENEFICIARY AND LOAN PROVISIONS. WHEREAS, the City Treasurer has recommended in a staff report dated June 22, 2004, that Resolution No. 75R-431, 98R-242 and 2001R-296 as last amended by Resolution 2002R-162, be amended to change the Deferred Compensation Committee composition and to clarify the Beneficiary and Loan Provisions effective July 1, 2004; WHEREAS, as a result thereof, the need exists to amend Resolution 75R-431 which established the City of Anaheim Deferred Compensation Plan (hereinafter called "Plan"), for full- time employees in compliance with Section 457 of the Internal Revenue Code; and WHEREAS, the City Council of the City of Anaheim does find that the aforementioned amendment is in the best interests of the City of Anaheim; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Anaheim that the Plan be amended and restated as summarized below. A copy of the Plan as amended is attached as Exhibit "A". Deferred Compensation Committee: 3.07 Deferred Compensation Committee: Shall mean the Committee, consisting of the Plan Administrator, as Chairperson; the City Manager or his appointee; the Finance Director or his appointee; the Human Resources Director or his appointee; two (2) Participating Employees and one (1) Rotating Department Employee Representative. 3.15 Participating Employee: An appointed member to the Deferred Compensation Commiuee. The Participating Employee must submit an Application for Appointment to the Committee. The Committee will select the Participating Employee. The Participating Employee must be a full-time employee with the City of Anaheim and must be a Participant of the Plan. This member shall serve a two (2) year term. 3.16 Participating Employee (Rotating Department Employee Representative): The Rotating Department Representative will be selected from Departments in the order of staff size. Any Department may choose to pass or not participate. The respective Department Head shall select the Department Representative. The Department Representative must be a full-time employee with the City of Anaheim and must be a Participant of the Plan. This member shall serve a two (2) year term. Beneficiary_ Provision: 3.03 Beneficiary: Any person, trust, corporation or firm, or the estate of the Participant, or any combination of the foregoing designated by a Participant to receive benefits under the Plan. Designation shall be made on a Provider Beneficiary. Designation Form executed by the Participant to the Provider, unless otherwise provided. Beneficiary may be singular or plural, primary or contingent. C:\Documenls and Sellings\dsilber\Local Sellings\Temporary inlerne~ Files\OLK28A\20()4 dc reso full-time plan. DOC If a valid Beneficiary Designation Form has not been filed to thc Provider; the account will be disbursed in the following order upon the death of the Participant unless otherwise required by law. The Participant's spousc The Participant's estate 10.8 Designation of a Trust as a Beneficiary: A Participant may name a trust as a Beneficiary with respect to the Participant's account in accordance with the requirements of Code Section 401(a)(9) and Treasury Regulation Section 1.401(a)(9)-4. In order for a trust to be validly named as Beneficiary under the Plan, certification of the trust establishing the existence and terms of the trust executed by the trustee shall be provided to the Provider, which certification shall include the following: (1) The existence of the trust and date of execution of the trust. (2) The identity of the settlor(s) and the currently acting trustee(s) of the trust. (3) The powers of the trustee. (4) The revocability or irrevocability of the trust, or a confirmation that the trust shall become irrevocable upon the death of the Participant. (5) The signature authority of the trustees indicating whether all of the currently acting trustees are required to sign in order to exercise their powers. (6) The trust identification number (taxpayer identification number) (7) The manner in which title to trust assets should be taken. (8) A statement that the trust has not been revoked, modified, or amended in any manner which would cause the representations to be incorrect. (9) A statement that the certification is being signed by all of the currently acting trustees of the trust. (10) The certification shall be in the form of an acknowledged declaration signed by all currently acting trustees of the trust under penalty of perjury. (11 ) Copies of excerpts from the trust documents which designate the trustee. (12) Copies of excerpts from the trust documents which confer upon the trustee the power to act in the pending transaction. To the extent any of the foregoing does not comply with the requirements of Code Section 401(a)(9) and the Treasury Department Regulations thereunder, the Plan shall be administered in accordance with such provisions of the Code and Treasury Regulations. Loan Provision: 11.01 Availability of Loans to Participants: (a) For purposes of this loan provision the City of Anaheim Deferred Compensation Program is considered one plan with multiple Providers. (b) The Employer has elected to make loans available to active full-time Participants as described in Section 11.02 (a). A Participant may apply for a loan from the Plan subject to the limitations and other provisions of this Article XI and the Internal Revenue Service Code restrictions. C:\Documenls and Settings\dsilber\kx)cal geltings\Temporary lnlernel Files\OLK2gA\2004 dc reso full-time plan.DOC (c) The Employer has elected to make loans available to active full-time Participants as described in Section 11.02 (a). A Participant may apply for a loan from the Plan subject to the limitations and other provisions of this Article XI and the Internal Revenue Service Code restrictions. 11.02 Terms and Conditions of Loans to Participants: Any loan by the Plan to a Participant under Article 11.01 of the Plan shall satisfy the following requirements' (a) Availability. Loans shall be made available to all active full-time Participants on a reasonably equivalent basis. A full-time Employee shall be as an employee with an average workweek of 40 hours or 80 hours per payroll period or other alternate work schedules as agreed upon per the Memorandum of Understandings between the collective Bargaining Units and the City of Anaheim. (c) Foreclosure. In the event of a default on any installment payment, the outstanding balance of the loan shall be a deemed distribution 90 days from the date of the default. In such event, an actual distribution of a plan loan offset amount will occur and will be reported to the IRS as taxable income. (f) Application for Loan. The Participant must give the Employer adequate written notice, as determined by the Plan Administrator, of the amount and desired time for receiving a loan. Loans will be limited to one (1) loan per Provider. No more than one (1) loan may be made by the Provider to a Participant's in any calendar year. No loan shall be approved if an existing loan from the Plan to the Participant is in default to any extent. BE IT FURTHER RESOLVED that the effective date of said amendment to Resolution No. 75R-431 is July 1, 2004. AND BE IT FURTHER RESOLVED that, except as amended herein, Resolution No. 75R- 431 shall remain in full force and effect. THE FOREGOING RESOLUTION is approve~d adopted by tll~,~:ity Council of the City of Anaheim this 22nd day of June 2004. MAYOR OF THE CITY ~J~F A4AHEIM ATTEST: CITY CLERK OF THE CITY OF ANAHEIM APPROVED AS TO FORM: JACK L. WHITE, CITY ATTORNEY MOSEYS j~.~ l CITY ATTORNEY C:\I)ocumcnt~ and Selliht, Shdsill ~ ,erXM~cal SeuingsX~-emporar> lntemet FilesXOLK28AX2004 dc reso full-time plan. DOC STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM ) I, SHERYLL SCHROEDER, City Clerk of the City of Anaheim, do hereby certify that the foregoing Resolution No. 2004-147 was introduced and adopted at a regular meeting provided by law, of the Anaheim City Council held on the 22nd day of June 2004, by the following vote of the members thereof: AYES: MAYOR/COUNCIL MEMBERS: Pringle, Chavez, Hernandez, McCracken NOES: MAYOR/COUNCIL MEMBERS: None ABSTAINED: MAYOR/COUNCIL MEMBERS: None ABSENT: MAYOR/COUNCIL MEMBERS: Tait /'CITY CLERK OF THE CITY OF ANAHEIM (SEAL) Office of CITY TREASURER ARTICLE I. NAME "EXHIBIT A" CITY OF ANAHEIM DEFERRED COMPENSATION PLAN 1.01 The Employer hereby amends and restates the Employer's Deferred Compensation Plan and Trust. The name of this plan is the City of Anaheim Deferred Compensation Plan hereinafter referred to as the "Plan." The Plan consists of the provisions set forth in this document. This amendment and restatement of the Plan is effective July 1,2004. ARTICLE II. PURPOSE 2.01 The primary purpose of this Plan is to provide retirement income and other deferred benefits to the Employees of the Employer and the Employees' Beneficiaries in accordance with the provisions of Section 457 of the Internal Revenue Code of 1986, as amended (the "Code"). 2.02 This Plan shall be an agreement solely between the Employer and participating Employees. The Plan and Trust forming a part hereof are established and shall be maintained for the exclusive benefit of eligible Employees and their Beneficiaries. No part of the corpus or income of the Trust shall revert to the Employer or be used for or diverted to purposes other than the exclusive benefit of Participants and their Beneficiaries. 2.03 The Employer does not and cannot represent or guarantee that any particular federal and state income, payroll or other tax consequences will occur by reason of an Employee's participation in this Plan. The Participant should consult with his own attorney or other representative regarding all tax or other consequences of participation in this Plan. ARTICLE II1. DEFINITIONS For the purposes of this Plan, certain words or phrases used herein will have the following meanings: 3.01 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 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. 3.02 Automatic Distribution Date: On or after January 1, 2002, "Automatic Distribution Date" means April 1 of the calendar year after the Plan year the Participant attains age 70 1/2, or, if later, has a Severance Event. 3.03 Beneficiary: Any person, trust, corporation or firm, or the estate of the Participant, or any combination of the foregoing designated by a Participant to receive benefits under the Plan. Designation shall be made on a Provider Beneficiary Designation Form executed by the Participant to the Provider, unless otherwise provided. Beneficiary may be singular or plural, primary or contingent. If a valid Beneficiary Designation Form has not been filed to the Provider; the account will be disbursed in the following order upon the death of the Participant unless otherwise required by law. (a) The Participant's spouse (b) The Participant's estate 3.04 Compensation: The salary or wages which would be paid by the Employer to or for the benefit of an Employee (if he were not a Participant in the Plan) for actual services performed for the Employer for the period that he is a Participant, and any payments attributable to accrued vacation, accrued sick leave and other accrued paid leave. 3.05 Contract Administrator: An administrator employed under contract authorized by the City Council and under the direction of the Plan Administrator. 3.06 Deferred Compensation: The portion of Compensation which the Participant and the Employer mutually agree to defer in accordance with the provisions of this Plan; any amount credited to the Participant's Account. 3.07 Deferred Compensation Committee: Shall mean the Committee, consisting of the Plan Administrator, as Chairperson; the City Manager or his appointee; the Finance Director or his appointee; the Human Resources Director or his appointee; two (2) Participating Employees and one (1) Rotating Department Employee Representative. 3.08 Disability: The substantial permanent inability of a Participant to engage in his usual occupation by reason of a medically determinable physical or mental impairment as determined by the Employer or by the Public Employees' Retirement System, on the basis of advice from a physician or physicians. 3.09 Employee: Any individual who provides services for the Employer, whether as an employee or officer of the Employer and who has been designated by the Employer as eligible to participate in the Plan. 3.10 Employer: Shall mean the City of Anaheim 3.11 Includible Compensation: The amount of an Employee's compensation from the Employer for a taxable year that is considered compensation within the meaning of Section 415(c)(3) of the Code. 3.12 Normal Compensation: The amount of compensation which would be payable to a Participant by the Employer for a taxable year if no Participation Agreement were in effect to defer compensation under this Plan. 3.13 Normal Retirement Age: Normal Retirement age is designated as 70-1/2 unless the Participant has elected an alternate Normal Retirement Age in writing (to be provided to the Plan Administrator before severance). Once a Participant elects to use the normal catch-up provision, the normal retirement age may not be changed. A Participant's alternate Normal Retirement Age may not be earlier than the earliest date that the Participant will become eligible to retire and receive unreduced retirement benefits under the California Public Employees Retirement System, and may not be later than the date the Participant will attain age 70-1/2. If a Participant continues employment after attaining age 70-1/2, but has not previously elected an alternate Normal Retirement Age, the Participant's alternate Normal Retirement Age can not be later than the mandatory retirement age established by the Employer, or the age at which the Participant actually leaves service if the employer has no mandatory retirement age. If the Participant will not become eligible to received benefits under a basic retirement plan maintained by the employer, the Participant's alternate Normal Retirement Age may not be earlier than age 55 and may not be later than age 70-1/2. 3.14 Participant: Any member of the Plan who has elected, pursuant to the Plan, to defer a portion of his compensation and who fulfills the requirements of participation in the Plan. 3.15 Participating Employee: An appointed member to the Deferred Compensation Committee. The Participating Employee must submit an Application for Appointment to the Committee. The Committee will select the Participating Employee. The Participating Employee must be a full-time employee with the City of Anaheim and must be a Participant of the Plan. This member shall serve a two (2) year term. 3.16 Participating Employee (Rotating Department Employee Representative): The Rotating Department Representative will be selected from Departments in the order of staff size. Any Department may choose to pass or not participate. The respective Department Head shall select the Department Representative. The Department Representative must be a full-time employee with the City of Anaheim and must be a Participant of the Plan. This member shall serve a two (2) year term. 3.17 Participation Agreement: An agreement entered into between an Employee and the Employer, including any amendments or modifications, thereof. Such agreement shall: (a) fix the amount of Deferred Compensation; (b) specify a preference among the Providers designated by the Employer; (c) incorporate the terms, conditions, and provisions of the Plan by reference. 3.18 Plan Administrator: The City Treasurer unless another person or entity is designated by the City Council. 3.19 Plan Year: The calendar year. 3.20 Provider: An institution providing investments or deposit vehicles. 3.21 Required Beginning Date: April 1 of the calendar year following the calendar year, in which the Participant attains age 70-1/2 or a Severance Event, whichever is later. 3.22 Retirement: The first date upon which both of the following shall have occurred with respect to a Participant: Severance Event and attainment of age 50. 3.23 Severance Event: Severance of the Participant's employment with the Employer within the meaning of Section 457(d)(2)(A)(ii) of the Code. In general, a Participant shall be deemed to have severed his employment with the Employer for purposes of this Plan when, in accordance with the established practices of the Employer, but not earlier than such time as the person is no longer on the payroll of the Employer. 3.24 Sub-Committee: A subdivision of the Committee and shall be less than a quorum of the Committee. 3.25 Trust: The Trust created under Article VIII 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. 3.26 Trustee: The Deferred Compensation Committee Members shall act as Trustees. ARTICLE IV. ADMINISTRATION 4.01 The Plan shall be administered by the Plan Administrator but may be administered through a Contract Administrator under the direction of the Plan Administrator. Participants receiving services from said Plan Administrator and/or Contract Administrator may be charged a fee for said services. The Trustees shall determine said fees in a manner deemed fair and equitable. The Trustees may have withheld or collect, such fee, in such manner as it deems equitable, from the compensation deferred pursuant to the Plan, or the income produced from the compensation deferred pursuant to the Plan. 4.02 Duties of the Plan Administrator: The Plan Administrator 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 Plan AdministratoYs decisions shall be afforded the maximum deference permitted by applicable law. 4.03 Duties of the Provider: The Provider shall act for the exclusive benefit of the Participants and their Beneficiaries. The Provider, as agent for the Trust, shall perform nondiscretionary administrative functions in connection with the Plan, including but not limited to; 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 Trust in accordance with the provisions of this Plan. ARTICLE V. PARTICIPATION IN THE PLAN 5.01 Employer and Participant mutually acknowledge that the compensation of each Employee is as set forth in the salary resolution or personnel ordinance of the Employer and that said compensation includes the dollar amount of funds deferred under this Plan. Each employee may elect to become a Participant and to defer payment of part of his compensation by executing and delivering to the Employer a written Participation Agreement. 5.02 Initial Participation: An Employee may become a Participant by executing a Participation Agreement prior to the beginning of the calendar month in which the Participation Agreement is to become effective to defer compensation not yet paid, or such other date as may be permitted under the Internal Revenue Code. The minimum deferral is $10.00 per pay period. At the Employer's option, there may be established one or more open enrollment dates during the year in which an employee may commence or make changes to his account. 5.03 Amendment of Participation Agreement: A Participant may amend an executed Participation Agreement to change the amount of compensation not yet paid which is to be deferred (including the reduction of such future deferrals to zero) or to change his investment preference (subject to such restrictions as may result from the nature of terms of any investment made by the Employer). Such amendments for deferral increases shall become effective as of the beginning of the calendar month commencing after the date the amendment is executed. A Participation Agreement shall remain in full force and effect from month to month unless modified, revoked or superseded by a new Participation Agreement, with the exception of Participants contributing under the 50 Plus Catch-Up Provision. Elections to contribute under the 50 Plus Catch-Up Provision must be made annually. No Compensation previously deferred shall be payable to an Employee upon revocation of his Participation Agreement unless otherwise due pursuant to Article X. 5.04 A Participant may designate by completing a Provider Beneficiary Designation Form, submitted to the Provider, a Beneficiary to receive any benefits which may be payable under the Plan upon the death of such Participant. A Participant may at any time amend his Provider Beneficiary Form to change the designated Beneficiary and such amendment shall become effective as of the date of delivery to the Provider. ARTICLE VI. LIMITATIONS ON DEFERRALS 6.01 Normal Limitation: Except as provided in Article 6.02, the maximum amount of the compensation of any Participant which may be deferred under the 457 plans for each calendar year shall be the lesser of 100% of the Participant's Includible Compensation or $11,000.00, with annual increases of $1,000.00 until the year 2006 and thereafter adjusted for the calendar year to reflect increases in the cost-of-living in accordance with Sections 457(e)(15) and 415(d) of the Internal Revenue Code. 6.02 Catch-Up Limitations: In accordance with the provision of this Section 6.02, a Participant may elect to have Deferred Compensation that exceeds the limitation of Section 6.01. (a) (b) (c) 50 Plus Catch-Up Provision: Effective January 1, 2002, Participants who have attained age 49 prior to the first day of the Plan Year may elect to have additional Deferred Compensation in an amount that does not exceed: $1,000.00 in the year 2002, $2,000.00 in the year 2003, $3,000.00 in the year 2004, $4,000.00 in the year 2005, $5,000.00 in the year 2006, and for years after 2006, the amount provided in Section 414(v)(2)(B) of the Code, including the cost-of-living adjustments provided for in Section 414(v)(2)(C) of the Code. Normal Catch-Up Provision: For each of the last three (3) taxable years of a Participant ending before his attainment of Normal Retirement Age, the maximum amount of Deferred Compensation shall be the lesser of: (1) double the Normal Limitation as stated in Section 6.01, or (2) the sum of: (A) the Normal Limitation for the taxable year, and (B) the Normal Limitation that was in effect pursuant to Code Section 457(b)(2) for each prior taxable year of the Participant commencing after 1978, less: (i) the amount of the Participant's Deferred Compensation for such prior taxable years, and (ii) any additional Deferred Compensation amounts contributed pursuant to this Normal Catch-Up Provision. A prior taxable year shall be taken into account under clause (B) above only if (i) the Participant was eligible to participate in this Plan for all or part of such year and (ii) compensation (if any) deferred under this Plan was subject to the deferral limitations set forth in Article 6.01. If Both Limits Apply: If a Participant is eligible for both the Normal Catch-Up Provision and 50 Plus Catch-Up Provision in the same Plan Year, the following rules shall apply: (1) The Participant shall be eligible to contribute an additional amount under this Section 6.02 that is equal to the greater of the Normal Catch-Up Provision or the 50 Plus Catch-Up Provision. (2) For purposes of clause (b)(2)(B)(ii) above, amounts contributed by the Participant under this Section 6.02 for any Plan Year shall be considered to have been made: (A) under the Normal Catch-Up Provision if the Normal Catch-Up Provision was greater than the 50 Plus Catch-Up Provision for such year; and (3) (B) under the 50 Plus Catch-Up Provision if the 50 Plus Catch-Up Provision was greater than the Normal Catch-Up Provision for such year. All amounts deferred under the 50 Plus Catch-Up Provision will not be considered when determining the amounts eligible to be contributed under the Normal Catch-Up Provision. ARTICLE VII. NON-RESPONSIBILITY CLAUSE 7.01 The Employer may, but is not required to, invest funds held pursuant to agreements between Participants and the Employer in accordance with the preference or preferences indicated by each Participant at the time of enrollment or change in enrollment, prospectively only. The Employer shall retain the right to approve or disapprove such investment request or requests, for transfer of investment among different modes of investment available under the Plan. Any such action by the Employer in investing funds, or approving of any investment of funds, shall not be considered to be either an endorsement or guarantee of any investment, nor shall it be considered to attest to the financial soundness or the suitability of any investment for the purpose of meeting future obligations. In no event shall the Employer's obligation to pay benefits to a Participant exceed the value of the amounts credited to the Participant's account; the Employer shall not be liable for losses arising from depreciation or shrinkage, in the value of any investments acquired under this Plan. ARTICLE VIII. TRUST AND INVESTMENT OF ACCOUNTS 8.01 Investment Funds: In accordance with uniform and nondiscriminatory rules established by the Employer and the Provider, the Participant may direct his Accounts to be invested in one (1) or more investment funds available under the Plan; provided, however, that the Participant's investment directions shall not violate any investment restrictions established by the Employer. Neither the Employer, the Provider, 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. Participants must notify the Plan Administrator or Provider of errors in the Participants account statement within 60 days after the end of the quarter in which the error occurred. 8.02 Crediting of Accounts: The Participant's Account shall reflect the amount and value of the investments or other property obtained by the Employer through the investment of the Participant's Deferred Compensation. Each Participant shall receive periodic reports from the Providers, not less frequently than annually, showing the then current value of his Account. Investment and market valuation of mutual funds can be made only when the New York Stock Exchange is open for trading. 8.03 Trust: Notwithstanding any contrary provision of the Plan, in accordance with Section 457(g) of the Internal Revenue Code, all amounts of compensation deferred pursuant to the Plan, all property and rights purchased with such amounts, and all income attributable to such amounts, property, or rights shall be held in trust for the exclusive benefit of participants and beneficiaries under the Plan. Any Trust under the Plan shall be established pursuant to a written agreement that constitutes a valid trust under the law of the State of California. All amounts of compensation deferred under the Plan shall be transferred to a trust established under the Plan within a period that is not longer than is reasonable for the proper administration of the accounts of participants. Attached hereto as Exhibit A, an incorporated herein by reference is the City of Anaheim Section 457 Deferred Compensation Plan Trust. ARTICLE IX. ELIGIBLE ROLLOVERS 9.01 Eligible Rollover Distributions: (a) Effective Date: This Article 9.01 is effective January 1,2002. (b) Incoming Rollovers: Employees and Participants may elect to contribute to this Plan all or part of an eligible rollover distribution from an eligible retirement plan. If the Employee is not already a Participant in the Plan, prior to making the rollover, the Employee must complete such enrollment forms as the Plan Administrator may require for initial enrollments in the Plan; and the Employee will become a Participant when the rollover contribution is paid to the Plan. The Employer may require such documentation from the distributing plan as it deems necessary to determine that the rollover will qualify as an eligible rollover distribution under the applicable provisions of the Code. The Plan shall separately account for any 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 Code. The Employer may refuse to accept a transfer in the form of assets other than cash, unless the Employer or Provider agree to hold such assets under the Plan. Rollover Contributions to the Plan are payable to the participant only as provided in Article X and may be the basis for a Participant loan that is made under Article XI. (c) Outgoing Rollovers: Notwithstanding any provision of the Plan to the contrary that would otherwise limit a distributee's election under this Article, 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)(1)(A) of the Code, provided that for outgoing rollovers it accepts the distributee's eligible rollover distribution. (3) Distributee: For purposes of outgoing rollovers, 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. (4) Direct Rollover: A direct rollover is a payment by the plan to the eligible retirement plan specified by the distributee. 9.02 Trustee-to-Trustee Transfers to Purchase Permissive Service Credit: At the election of a Participant, and without regard to the distribution restrictions of Section 10.01, 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) and as permitted for acceptance by the Defined Benefit Governmental Plan, 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. 9.03 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). ARTICLE X. DISTRIBUTION OF BENEFITS 10.01 Retirement Benefits and Election on Severance Event: (a) General Rule: Except as otherwise provided in this Article X, 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 Article 10.02. Notwithstanding the foregoing, but subject to the following paragraphs of this Article 10.01, 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 I 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: The Participant may elect to defer the commencement of distribution of benefits to a fixed determinable date later than the date provided in Article 10.01(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 in the case of elections made prior to January 1, 2002, (a) such election is made after the 61st day following the Participant's Severance Event and before commencement of distributions, (b) the Participant may only 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. Notwithstanding the foregoing, the Plan 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. (c) Loans: Notwithstanding the foregoing provisions of this Article 10.01, no election to defer the commencement of benefits after a Severance Event shall operate to defer the distribution of any amount in the Participant's Loan Account in the event of a default of the Participant's loan. 10.02 Payment Options: As provided in Articles 10.01, 10.05, 10.06 and 10.07, a Participant or Beneficiary may elect to have the 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 Article 10.04: (a) Equal monthly, quarterly, semi-annual or annual payments in an amount chosen by the Participant, continuing until his Account is exhausted; (b) One lump-sum payment; (c) Loan Limit. No Participant loan shall exceed the present value of the Participant's Account. (d) Approximately equal monthly, quarterly, semi-annual or annual payments, calculated to continue for a certain period chosen by the Participant. 10 (e) 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 his Beneficiary. (f) Payments equal to payments made by the issuer of a retirement annuity policy acquired by the Provider. (g) Any payment option elected by the Participant and agreed to by the Employer and Provider and as provided for by the Internal Revenue Service. A Participant's or Beneficiary's selection of a payment option 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. 10.03 Default: A Participant's or Beneficiary's election of a payment option must be made at least 30 days before the payment of benefits is to commence. If, prior to January 1, 2002, a Participant or Beneficiary 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 or Beneficiary 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 or Beneficiary until the Participant or Beneficiary reaches age 70-1/2. When the Participant or Beneficiary reaches age 70-1/2, payments shall be made in accordance with Code Section 401(a)(9) and the regulations thereunder. 10.04 Limitation on Options: No payment option may be selected by a Participant under subsections 10.02(a) or (c) unless the amount of any installment is not less than $100 per year. No payment option may be selected by a Participant under Sections 10.02, 10.06, or 10.07 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 benefit requirements under Section 401(a)(9)(G). 10.05 Minimum Distribution: Starting the year a Participant who has a Severance Event reaches age 70-1/2 he is required to withdraw a minimum amount annually from his account. If the Participant works past age 70-1/2, he is required to begin withdrawals for the year in which he actually has a Severance Event. For purposes of this Section, the Internal Revenue Code Regulations shall apply when determining the minimum distribution. :].3. 10.06 Post-Retirement Death Benefits: (a) Should the Participant die after he has begun to receive benefits under a payment option, the remaining payments, if any, under the payment option shall be payable to the Participant's Beneficiary within the 30-day period beginning with the 61st day after the Participant's death, unless the Beneficiary elects payment under a different payment option that is available under Article 10.02 within 60 days of the Participant's death. Any different payment option elected by a Beneficiary under this section must provide for payments at a rate that is at least as rapid under the payment option that was applicable to the Participant. In no event shall the Employer or Provider be liable to the Beneficiary for the amount of any payment made in the name of the Participant before the Employer or Provider receives proof of death of the Participant. (b) If the designated Beneficiary does not continue to live for the remaining period of payments under the payment option, then the commuted value of any remaining payments under the payment option shall be paid in a lump sum to the Beneficiary(ies) of the Beneficiary. In the event that the Beneficiary has no named Beneficiary(ies) on file, payment shall be made in a lump sum to the estate of the Beneficiary. (c) If the beneficiary is a spouse, the Beneficiary may rollover distributions to an IRA or a 401,403(b) or governmental 457 plan in which the spouse participates. In the event that the Participant's estate is the Beneficiary, the commuted value of any remaining payments under the payment option shall be paid to the Participant's estate in a lump sum. 10.07 Pre-Retirement Death Benefits: (a) Should the Participant die before he has begun to receive the benefits provided by Article 10.01, the value of the Participant's Account shall be payable to the Beneficiary commencing within the 30-day period beginning on the 91st day after the Participant's death, unless the Beneficiary elects a different fixed or determinable benefit commencement date within 90 days of the Participant's death. Such benefit commencement date shall be not later than the later of (i) December 31 of the year following the year of the Participant's death, or (ii) if the Beneficiary is the Participant's spouse, December 31 of the year in which the Participant would have attained age 70- 1/2. (b) Unless a Beneficiary elects a different payment option prior to the benefit commencement date, death benefits under this Section shall be paid in approximately equal annual installments over five years, or over such shorter period as may be necessary to assure that the amount of any annual installment is not less than $1,200. A Beneficiary shall be treated as if he were a Participant for purposes of determining the payment options available under Article 10.02, provided, however, that the payment option chosen by the Beneficiary must provide for payments to the Beneficiary over a period no longer than the life expectancy of the Beneficiary, and provided that such period may not exceed (15) years if the Beneficiary is not the Participant's spouse. 12 (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 in a lump sum to the Beneficiary(ies) of the Beneficiary. (d) If the beneficiary is a spouse, the Beneficiary may rollover distributions to an IRA or a 401,403(b) or governmental 457 plan in which the spouse participates. In the event that the Participant's estate is the Beneficiary, payment shall be made to the Participant's estate in a lump sum. 10.8 Designation of a Trust as a Beneficiary: A Participant may name a trust as a Beneficiary with respect to the Participant's account in accordance with the requirements of Code Section 401(a)(9) and Treasury Regulation Section 1.401(a)(9)-4. In order for a trust to be validly named as Beneficiary under the Plan, certification of the trust establishing the existence and terms of the trust executed by the trustee shall be provided to the Provider, which certification shall include the following: (1) The existence of the trust and date of execution of the trust. (2) The identity of the settlor(s) and the currently acting trustee(s) of the trust. (3) The powers of the trustee. (4) The revocability or irrevocability of the trust, or a confirmation that the trust shall become irrevocable upon the death of the Participant. (5) The signature authority of the trustees indicating whether all of the currently acting trustees are required to sign in order to exercise their powers. (6) The trust identification number (taxpayer identification number) (7) The manner in which title to trust assets should be taken. (8) A statement that the trust has not been revoked, modified, or amended in any manner which would cause the representations to be incorrect. (9) A statement that the certification is being signed by all of the currently acting trustees of the trust. (10) The certification shall be in the form of an acknowledged declaration signed by all currently acting trustees of the trust under penalty of perjury. (11 ) Copies of excerpts from the trust documents which designate the trustee. (12) Copies of excerpts from the trust documents which confer upon the trustee the power to act in the pending transaction. To the extent any of the foregoing does not comply with the requirements of Code Section 401(a)(9) and the Treasury Department Regulations thereunder, the Plan shall be administered in accordance with such provisions of the Code and Treasury Regulations. 10.09 Unforeseeable Emergencies: (a) In the event an unforeseeable emergency occurs, a Participant may apply to the Plan Administrator to receive that part of the value of his Account that is reasonably needed to satisfy the emergency need. If such an application is approved by the Plan Administrator, the Participant shall be paid only such amount as the Plan Administrator 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. For example the need to send a Participant's child to college, divorce, 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. The Plan Administrator shall determine whether such unforeseeable emergency exists. If a request for an unforeseeable emergency is denied, the Participant may appeal the decision to the Deferred Compensation Committee. The written appeal must be filed with the Plan Administrator within 30 days of the date of the denial. The decision of the Deferred Compensation Committee shall be final. Withdrawals of amounts because of an unforeseeable emergency will be permitted only to the extent reasonably needed to satisfy the emergency. If the Participant receives a withdrawal for an Unforeseeable Emergency, he must stop contributions to the Deferred Compensation Plan for a period of six (6) months, or as allowable by IRS Regulations 10.10 Transitional Rule for Pre-1989 Benefit Elections: In the event that, prior to January 1, 1989, a Participant or Beneficiary has commenced receiving benefits under a payment option then that payment shall remain in effect unless a change is allowed by the Internal Revenue Service. 10.11 Inactive Accounts (De Minimis): Voluntary In-Service Distribution: A Participant who is an active Employee of the Employer may elect to receive a lump sum distribution of the total amount credited to his Accounts under the Plan if all of the following requirements are met: The total amount credited to the Participant's Accounts under the Plan, exclusive of any Rollover Contribution Accounts, does not exceed $5,000 or such higher amount as may be provided under Section 411 (a)(11)(A) of the Code. (ii) The Participant has not previously received a distribution under this Section. The Participant has not deferred Compensation under the Plan during the two-year period ending on the date of the distribution under this Section. 10.12 Other Distributions: Notwithstanding any other provisions of the Plan, the Employer may change the time or methods of benefit payment pursuant this Plan. 14 If the balance due the Participant or Beneficiary is less than $5,000 (or as may be revised by the Internal Revenue Service and/or the Department of Labor), the Employer may discharge its obligation by a lump sum payment. 10.13 Forfeiture: The Plan Administrator is authorized to declare a forfeiture to the Plan of all Plan distributions and any income or other increment thereon if the owner, participant or beneficiary cannot be found and has not, within three years after it becomes payable or distributable, accepted the distribution, corresponded in writing concerning the distribution, or otherwise indicated an interest as evidenced by a memorandum or other written record on file with the Plan Administrator. All forfeitures shall be used to offset future Plan expenses. ARTICLE Xl. LOANS TO PARTICIPANTS 11.01 Availability of Loans to Participants: (a) For purposes of this loan provision the City of Anaheim Deferred Compensation Program is considered one plan with multiple Providers. (b) The Employer has elected to make loans available to active full-time Participants as described in Section 11.02 (a). A Participant may apply for a loan from the Plan subject to the limitations and other provisions of this Article XI and the Internal Revenue Service Code restrictions. (c) The Plan Administrator shall establish written guidelines governing the granting of loans, provided that such guidelines are approved by the Provider and are not inconsistent with the provisions of this Article, and that loans are made available to all Participants on a reasonably equivalent basis. 11.02 Terms and Conditions of Loans to Participants: Any loan by the Plan to a Participant under Article 11.01 of the Plan shall satisfy the following requirements: (a) Availability. Loans shall be made available to all active full-time Participants on a reasonably equivalent basis. A full-time Employee shall be as an employee with an average workweek of 40 hours or 80 hours per payroll period or other alternate work schedules as agreed upon per the Memorandum of Understandings between the collective Bargaining Units and the City of Anaheim. (b) Interest Rate. Loans must be adequately secured and bear a reasonable interest rate. (c) Foreclosure. In the event of a default on any installment payment, the outstanding balance of the loan shall be a deemed distribution 90 days from the date of the default. In such event, an actual distribution of a plan loan offset amount will occur and will be reported to the IRS as taxable income. (d) Reduction of Account. Notwithstanding any other provision of this Plan, the portion of the Participant's Account balance used as a security interest held by the Plan by reason of a loan outstanding to the Participant shall be taken into account for 15 purposes of determining the amount of the Account balance payable at the time of death or distribution, but only if the reduction is used as repayment of the loan. (e) Amount of Loan. At the time the loan is made, the principal amount of the loan plus the outstanding balance (principal plus accrued interest) due on any other outstanding loans to the Participant from the Plan and from all other plans of the Employer that are qualified employer plans under Section 72(p)(4) of the Code shall not exceed the lesser of: (1) 50,000, reduced by the excess (if any) of (a) The highest outstanding balance of loans from the Plan during the one (1) year period ending on the day before the date on which the loan is made, over (b) The outstanding balance of loans from the Plan on the date on which such loan is made; or (2) One-half of the value of the Participant's interest in all of his Accounts under this Plan. (f) Application for Loan. The Participant must give the Employer adequate written notice, as determined by the Plan Administrator, of the amount and desired time for receiving a loan. Loans will be limited to one (1) loan per Provider. No more than one (1) loan may be made by the Provider to a Participant's in any calendar year. No loan shall be approved if an existing loan from the Plan to the Participant is in default to any extent. (g) Length of Loan. Any loan issued shall require the Participant to repay the loan in substantially equal installments of principal and interest, at least monthly, over a period that does not exceed five (5) years from the date of the loan; provided, however, that if the proceeds of the loan are applied by the Participant to acquire any dwelling unit that is to be used within a reasonable time (determined at the time of the loan is made) after the loan is made as the principal residence of the Participant, the five (5) year limit shall not apply. In this event, the period of repayment shall not exceed a reasonable period determined by the Employer. Principal installments and interest payments otherwise due may be suspended for up to one (1) year during an authorized leave of absence, if the promissory note so provides, but not beyond the original term permitted under this subsection (h), with a revised payment schedule (within such term) instituted at the end of such period of suspension. All loans will be due and payable within 90 days of a Severance Event. No payments are required during this grace period. (h) Prepayment. The Participant shall be permitted to repay the loan in whole or in part at any time prior to maturity, without penalty. (i) Promissory Note. The loan shall be evidenced by a promissory note executed by the Participant and delivered to the Plan Administrator, and shall bear interest at a reasonable rate determined by the Plan Provider. 16 (j) Security. The loan shall be secured by an assignment of the participant's right, title and interest in and to his Account. (k) Assignment or Pledge. For the purposes of paragraphs (f) and (g), assignment or pledge of any portion of the Participant's interest in the Plan and a loan, pledge, or assignment with respect to any insurance contract purchased under the Plan, will be treated as a loan. Other Terms and Conditions. The Plan Administrator shall fix such other terms and conditions of the loan, as it deems necessary to comply with legal requirements, to maintain the qualification of the Plan and Trust under Section 457 of the Code, or to prevent the treatment of the loan for tax purposes as a distribution to the Participant. The Employer, in its discretion for any reason, may also fix other terms and conditions of the loan, including, but not limited to, the provision of grace periods following an event of default, not inconsistent with the provisions of this Article and Section 72(p) of the Code, and any applicable regulations thereunder. 11.03 Participant Loan Accounts: (a) Upon distribution of a loan to a Participant by the Plan, an amount not in excess of the loan shall be transferred from the Participant's other investment fund(s), described in Article 8.01 of the Plan, to the Participant's Loan Account as of the Accounting Date immediately preceding the agreed upon date on which the loan is to be made. (b) The assets of a Participant's Loan Account may be invested and reinvested only in promissory notes received by the Plan from the Participant as consideration for a loan permitted by Article 11.01 of the Plan or in cash. Uninvested cash balances in a Participant's Loan Account shall not bear interest. Neither the Employer, the Provider, nor any other person shall be liable for any loss, or by reason of any breach, that results from the Participant's exercise of such control. (c) Repayment of principal and payment of interest shall be made by payroll deduction or, where repayment cannot be made by payroll deduction, by cashiers check, and shall be invested in one (1) or more other investment funds, in accordance with Article 8.01 of the Plan, as of the next Accounting Date after payment thereof to the Trust. The amount so invested shall be deducted from the Participant's Loan Account. (d) The Employer shall have the authority to establish other reasonable rules, not inconsistent with the provisions of the Plan, governing the establishment and maintenance of Participant Loan Accounts. ARTICLE Xll. NON-ASSIGNABILITY 12.01 In General: Except as provided in Article 12.02, no Participant or Beneficiary shall have any right to commute, sell, assign, pledge, transfer or otherwise convey or 3.? encumber the right to receive any payments hereunder, which payments and rights are expressly declared to be non-assignable and non-transferable. 12.02 Domestic Relations Orders: (a) Allowance of Transfers: To the extent required under 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 at the earliest date that benefits may be paid to the Participant, unless the order directs a different time or form of payment. To the extent provided in Article IX, the alternate payee may elect to transfer all or part of a distribution to an eligible retirement plan. In addition, in accordance with Code Section 414(p)(10), this Plan shall consider an order a qualified domestic relations order even if such order requires a distribution to an alternate payee prior to the time that a Participant has a Severance Event. Any Payment made to a person other than the Participant pursuant to this Article shall be reduced by any required income tax withholding and shall be taxable to the alternate payee. (b) Release from Liability to Participant: The Employer'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 Article. No such transfer shall be effectuated unless the Employer has been provided with satisfactory evidence that the Employer is released from any further claim by the Participant with respect to such amounts. The Participant shall be deemed to have released the Employer from any claim with respect to such amounts, in any case in which (i) the Employer 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 Employer 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 Employer from the obligation to comply with the judgment, decree, or order. (c) Participation in Legal Proceedings: The Employer shall not be obligated to defend against or set aside any judgment, decree, or order described in paragraph (a) or 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 Employer to incur such expense, the amount of the expense may be charged against the Participant's Account and thereby reduce the Employer's obligation to pay benefits to the Participant. In the course of any proceeding relating to divorce, separation, or child support, the Employer shall be authorized to disclose information relating to the 18 Participant's Account to the Participant's spouse, former spouse, or child (including the legal representatives of the spouse, former spouse, or child), or to a court. ARTICLE Xlll. RELATIONSHIP TO OTHER PLANS AND EMPLOYMENT AGREEMENTS 13.01 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 Employer's employees. Nothing contained in this Plan shall be deemed to constitute an employment contract or agreement between any Participant and the Employer or to give any Participant the right to be retained in the employ of the Employer. Nor shall anything herein be construed to ~nodify the terms of any employment contract or agreement between a Participant ancithe Employer. ARTICLE XlV. APPLICABLE LAW 14.01 This Plan and Trust shall be construed under the laws of the State of California and is established with the intent that it meets the requirements of an "eligible deferred compensation plan" under Section 457 of the Code, as amended. The provisions of this Plan and Trust shall be interpreted and applied so as to conform with the requirements of Section 457 of the Code. ARTICLE XV. GENDER AND NUMBER 15.01 The masculine pronoun, whenever used herein, shall include the feminine pronoun, and the singular shall include the plural, except where the context requires otherwise. ARTICLE XVl. MISCELLANEOUS 16.01 The Deferred Compensation Committee, as defined in Article 3.07 is empowered to review, evaluate, and make recommendations for product providers to the City Council. Additionally, the Deferred Compensation Committee will serve as an advisor to the Plan Administrator in decisions such as unforeseeable emergency limitations, etc. Specific duties and responsibilities for overall deferred compensation plan administration are noted below: A. CITY COUNCIL Authorize, by Resolution, the Anaheim Deferred Compensation Plan Document, in compliance with Section 457 of the Code. Approves additions or removal of Providers, as well as approve major amendments to the Plan. Authorize the administration of the Plan. 19 PLAN ADMINISTRATOR Day to day administration, including approval of Plan Participation Agreements and preliminary evaluation of unforeseeable emergencies. Authority to sign all legal agreements with approved Providers, including minor Plan amendments. Provide recommendations on adding or deleting Providers, to the City Council. 4. Communicating the Deferred Compensation Program to employees. Maintain Deferred Compensation Procedures Manual and related Plan documents. 6. Coordinate Provider/City employee meeting schedule. The Plan Administrator shall have the right to delegate any of the above duties to staff. DEFERRED COMPENSATION COMMITTEE Conduct reviews of the Deferred Compensation Program and make recommendations as necessary. Conduct reviews of the Retirement Health Savings Program and make recommendations as necessary. Review Provider performance and assist the Plan Administrator in developing recommendations on adding, deleting or amending Providers to the City Council. Review and make determinations on adding, deleting or amending Investment Options. Assist the Plan Administrator on unforeseeable emergency determinations, as necessary. 6. The Committee shall have the power to appoint subcommittees. The seven (7) Deferred Compensation Committee Members shall serve as Trustees of the Trust. The Committee will select the two (2) Participating Employee members of the Committee. 20 D. SUBCOMMITTEE 1. Performs task within the scope of the Committee's responsibility The Subcommittee makes reports and recommendations for consideration to the Committee. 16.02 No Participant or other person shall have any legal or equitable right against the Employer except as provided in the Plan, and in no event shall the terms of employment of any Employee or Participant be modified or in any way affected thereby. 16.03 Each Participant herein expressly agrees for himself, his successors, assignees and his beneficiaries that he shall look solely to the general assets of the Trust for the payment of any such benefit to which he may become entitled under the Plan. 16.04 The Plan has been adopted in the State of California and shall be construed and governed and administered in compliance with all applicable State law. 16.05 The Plan shall be binding upon and shall inure to the benefit of the Employer, its successors and assigns, all Participants and Beneficiaries, and their heirs, and legal representatives. 16.06 Any notice or other communication required or permitted under the Plan shall be in writing, and if directed to the Employer shall be sent to the Employer or Contract Administrator at its principal office, as applicable; and, if directed to a Participant or a Beneficiary, shall be sent to such Participant or Beneficiary at his last-known address as it appears on the Employer's and Provider's records. Such notice shall be deemed given when mailed. 16.07 Deductions for Participant's contributions to the Public Employees' Retirement System, Social Security, Retirement Health Savings Program, and other retirement plan or associations shall be made regardless of amounts deferred pursuant to the Plan. 16.08 A permitted leave of absence without pay shall be considered to be a temporary suspension of contribution to the Plan. Contribution shall be automatically reinstated in accordance with the Participation Agreement as of the first day of the next payperiod subsequent to the termination of such leave of absence status. In the event of a non- permitted leave of absence without pay, the Employer at its discretion may deem such absence a revocation of the Participation Agreement. ARTICLE XVll. AMENDMENT OR TERMINATION OF PLAN 17.01 The Employer has the sole and exclusive right to terminate this Plan for all Participants at any time. Upon such termination, each Participant in the Plan will be deemed to have revoked his Participation Agreement as of the date of such termination. Such termination shall have no effect on the rights of the Participant with respect to amounts already deferred under the Plan or transferred pursuant to Article IX. The Employer may also amend the provisions of this Plan at any time; provided, however, that no amendment shall affect the rights of the Participants or their Beneficiaries to the receipt of payment of benefits, to the extent of any Compensation deferred at the time of the amendment as adjusted for income or losses attributable to such Deferred Compensation prior to and subsequent to the amendment. To the extent that there are legislative changes affecting Section 457 of the Internal Revenue Service Code, this plan shall be interpreted to allow implementation of mandatory changes. This Plan is intended to qualify as an eligible deferred compensation plan under Section 457 of the Code and shall be interpreted and administered in a manner consistent with such qualifications. The Employer reserves the right to amend the Plan to the extent that may be necessary to conform the Plan to the requirements of Section 457 of the Code and any other applicable law, regulation or ruling, including amendments that are retroactive to the effective date of the Plan. In the event that the Plan is deemed by the Internal Revenue Service to be administered in a manner inconsistent with Section 457 of the Code, the Employer shall correct such inconsistency within the period provided in Section 457 of the Code, or terminate the Plan. The Employer reserves the right to take such action and do such things as are required to make the Plan, as administered, consistent with Section 457 of the Code. ARTICLE XVlll. TOTAL AGREEMENT 18.01 This Plan and the Participation Agreement, and any subsequently adopted amendment thereof, shall constitute the total agreement or contract between the Employer and the Participant regarding the Plan. No oral statement regarding the Plan may be relied upon by the Participant. The Employer hereby establishes this Deferred Compensation Plan on the terms and conditions set forth herein. DATE: g ~,~. -~ "-/ __ c,?r CITY TREASURER 22