91-173 RESOLUTION NO. 91R-173
A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF ANAHEIM ESTABLISHING A
RETIREMENT PLAN FOR PART TIME,
TEMPORARY, AND SEASONAL EMPLOYEES
WHEREAS, the Omnibus Budget Reconciliation Act of 1990
amended prior law by adding Section 3121(b)(7)(F) to the Internal
Revenue Code expanding the definition of employment for the
purpose of FICA taxes to include service performed by employees
of state or local government entities after July 1, 1991; and
WHEREAS, such law exempts employees who are members of
a retirement system of a state or local government entity from
FICA coverage if certain minimum standards are met; and
WHEREAS, certain employees of the City of Anaheim are
members of the california Public Employees' Retirement System
("CALPERS") and are thereby exempt from FICA taxes; and
WHEREAS, the Internal Revenue Service has issued
proposed regulations 26 CFR Part 31 that define a public
retirement system and establish minimum benefit standards and
such proposed regulations specifically reference Section 457(b)
of the Internal Revenue Code as an allowable plan for the purpose
of Section 3121(b) (7) (F); and
WHEREAS, the City Treasurer of the City of Anaheim has
recommended a Plan Document which is intended to treat
participants as members of a retirement system within the meaning
of IRC Code Section 3121(b) (7) (F).
NOW THEREFORE BE IT RESOLVED by the City Council of the
city of Anaheim that the City of Anaheim Deferred Compensation
Plan for Employees Not Covered by CALPERS (hereinafter called
"PLAN") attached as Exhibit "A" and incorporated herein is hereby
adopted.
BE IT FURTHER RESOLVED by the City Council of the City
of Anaheim that all Eligible Employees shall be participants in
the PLAN and shall make employee contributions as required by the
PLAN.
BE IT FURTHER RESOLVED by the city Council of the City
of Anaheim that the effective date of this PLAN shall be June 28,
1991 for Event Payroll Eligible Employees of the Stadium and
Convention Center, and shall be June 21, 1991 for all other
Eligible Employees.
BE IT FURTHER RESOLVED by the City Council of the City
of Anaheim that the PLAN is intended to qualify as an eligible
deferred compensation plan under IRC Section 457 and to
constitute a retirement system within the moaning of IRC Section
3121(b)(7) (F). The City shall amend the PLAN to the extent that
may be necessary to conform the P~N to all applicable laws,
regulations, or rulings.
BE IT FURTHER RESOLVED that capitalized terms used
herein shall have the same meaning as set forth in Section 3 of
the P~N unless otherwise expressly stated herein.
THE FOREGOING RESOLUTION is approved and adopted by the
City Council of the City of Anaheim this 11th day of
June , 1991.
APPROVED AS TO FO~:
CITY ATTORNEY OF THE CITY OF ANAHEIM
JLW:lm
I:\DOCS\ORDRES\R40RETIR.12
STATE OF CALIFORNIA )
COUNTY OF O~NGE ) ss.
CITY OF ANAHEIM )
I, LEONO~ N. SOHL, City Clerk of the City of Anaheim, do hereby certify that
the foregoing Resolution No. 91R-173 was introduced and adoWed at a regular
meeting provided by law, of the Anaheim City Council held on the 11th day of
June, 1991, by the following vote of the members thereof:
AYES~ COUNCIL MEMBERS: Simpson, Daly, Pickler, Ehrle and Hunter
NOES: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: None
AND I FURTHER certify that the Mayor of the City of Anaheim signed said
Resolution No. 91R-173 on the 12th day of June, 1991.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the
City of Anaheim this 12th day of June, 1991.
CITY CLERK OF THE CITY OF ANAHEIM
( SEAL )
I, LEONORA N. SOHL, City Clerk of the City of Anaheim, do hereby certify that
the foregoing is the original of Resolution No. 91R-173, duly passed and
adopted by the City Council of the City of Anaheim on June 11, 1991.
CITY CLERK OF THE CITY OF ANAHEIM
*~° ~"~~ CITY OF ANAHEIM, CALIFORNIA
CMC CENTER, 200 S. Anaheim Blvd., Second Floor
Anaheim, CA 92805
Office of Telephone:
CITY TREASURER (714) 254-5117
FAX (714) 254-5232
CITY OF ANAHEIM
DEFERRED COMPENSATION PLAN
FOR EMPI,OYEES NOT COVERED BY CALPERS
SECTION 1. NAME'.
The name of this Plan is the City of Anaheim Deferred Compensation Plan for employees
not covered by CALPERS hereinafter, referred to as the "Plan".
SECTION 2. PURPOSE:
The purpose of this Plan is to extend, to Eligible Employees of the Employer, certain
benefits which ordinarily accrue from participation in an "eligible deferred compensation plan", as
that term is used in Section 457 of the Federal Internal Revenue Code of 1986 as amended. It is
intended that Participants in this Plan be considered members of a retirement system, within the
meaning of Section 3121(b)(7)(F) of the Internal Revenue Code of 1986, as amended. However,
the Employer does not and cannot represent or guarantee that any particular federal or state income,
payroll or other tax consequence 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.
SECTION 3. DEFINITIONS:
For all purposes of this Plan, certain words or phrases used herein will have the following
meanings:
3.1 "Accounf' shall mean the book account maintained on behalf of a Participant in
accordance with Section 10.
3.2 "Beneficiary" shall mean any person, u'ust, 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 by written inslxument executed by the Participant unless
otherwise provided. Beneficiary may be singular or plural, primary or contingent.
3.3 "CALPERS" shall mean the California Public Employees Retirement System.
3.4 "Compensation" shall mean the salary or wages which would be paid by the
Employer to or for the benefit of an Employee (if he/she were not a Participant in the Plan) for
actual services performed for the Employer for the period that he/she is a Participant.
3.5 "Contract Administrator" shall mean an administrator employed under contract
authorized by the City Council and under the direction of the Plan Administrator.
3.6 "Contributions" of a Participant shall mean his Participant Contributions and any
Employer Contributions made on his behalf.
3.7 "Deferred Compensation" of a Participant shall mean the Participant Contributions
and Employer Contributions credited to his Account, adjusted as provided in Section 10 of the Plan.
3.8 "Disability" shall mean the substantial permanent inability of a Participant to engage
in his/her usual occupation by reason of a medically determinable physical or mental impairment as
determined by the Employer on the basis of advice from a physician or physicians.
3.9 "Eligible Employee" shall mean any Employee who is not a Qualified CALPERS
Participant. However, if an Employee's Compensation is determined pursuant to a collective
bargaining agreement, he shall not be an Eligible Employee under this Plan unless he meets the
preceding requirements of this Paragraph 3.9 and such bargaining agreement specifically provides
that he may be an Eligible Employee hereunder; and further provided no employee shall be an
eligible employee if his/her service is described in clauses (i) through (v) of the IRC Section
3121(b)(7)(F).
3.10 "Employee" shall mean any officer or other employee of the Employer.
3.11 "Employer" shall mean the City of Anaheim.
3.12 "Employer Contributions" shall mean the contributions of the Employer that are
made to the Plan in accordance with Paragraph 4.2.
3.13 "Includible Compensation" shall mean compensation for service performed for the
Employer which (taking into account for the provisions of Section 457 and 403(b) of the Federal
Internal Revenue Code) is currently includible in gross income. Compensation shall be taken into
account at its present value. The amount of includible compensation shall be determined without
regard to any community property laws.
3.14 "IRC" shall mean the Internal Revenue Code of 1986, as amended, and any
Treasury Regulations and rulings thereunder.
3.15 "Normal Retirement Age" shall mean age 70-1/2. Normal retirement age under this
· agreement does not represent a mandatory age of retirement, nor, is it an agreement to retire at a
designated age.
3.16 "Participant" shall mean any Eligible Employee or former Eligible Employee who
has made Participant Contributions pursuant to the Plan and has an Account under the Plan.
3.17 "Participant Contributions" shall mean that portion of a Participant's Compensation
that is deducted by the Employer from such Compensation in accordance with Paragraph 4.1.
3.18 "Plan Administrator" shall mean the City Treasurer unless another person or entity is
designated by the City Council.
3.19 "Plan Year" shall mean the calendar year.
3.20 '~ shall mean an institution providing an investment or deposit vehicle for a
deferred compensation fund established under Section 6.2.
3.21 "Oualified CAI,PERS Participant" shall mean any Employee who:
(i) is or ever has been a member in the CALPERS, and
(ii) either:
(A) based upon his current compensation, is realring employee
contributions to CALPERS and having employer contributions
made to CALPERS,
(B) previously retired from the service of the Employer and has
attained normal retirement age under the CALPERS, or
(C) previously retired from the service of the Employer and is
currently receiving retirement benefits under the CALPERS.
3.22 "Required Beginning Date" shall mean the April 1 of the calendar year following the
calendar year in which the Participant attains age 70-1/2.
3.23 "Separation from Service" shall mean severance of the Participant's employment
with the Employer. A Participant shall be deemed to have severed his employment 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.
SECTION 4. PARTICIPATION:
4.1 Each Eligible Employee shall have 3.75% of his Compensation earned as an Eligible
Employee withheld by the Employer as a Participant Contribution under this Plan. Notwithstanding
the preceding, the Employer and the Eligible Employee mutually acknowledge that unless indicated
otherwise in the salaw resolution or personnel ordinance or policies of the Employer, the salary or
wage of the Eligible Employee includes the Participant Contributions made under this Plan. As
soon as practicable after the deduction from the Compensation of the Eligible Employee, the
Employer shall pay all Participant Contributions to the fund or funds established pursuant to Section
6 of the Plan.
4.2 On behalf of each Eligible Employee that has Participant Contributions deducted
from his Compensation pursuant to Paragraph 4.1, the Employer shall pay to the fund or funds
established pursuant to Section 6 of the Plan, an Employer Contrbution equal to 3.75% of the
Compensation which is earned as an Eligible Employee. Payment of Employer Contrbutions shall
be made concurrently with the payment of the Participant Contrbutions.
4.3 The Employer may change percentages of Compensation to be contrbuted as
Participant Contrbutions or Employer Contributions to greater or lesser peruenrages by amending
this Plan in accordance with Section 16. In addition, such percentages may be changed to comply
with the terms of any collective bargaining agreement pursuant to which Employees participate in
this Plan. Any percentage changes in the amount of Participant Contributions hereunder shall be
effective only with respect to Compensation earned after the adoption date of the Plan amendment
relating thereto or, if applicable and later, the ratification date of the collective bargaining agreement
relating thereto.
4.4 A Participant may designate in writing a Beneficiary to receive any benefits which
may be payable under the Plan upon the death of such Participant. A Participant may modify his
Participation Agreement to change such Beneficiazy by filing with the Employer a properly executed
written notice of modification, which will take effect as of the date of delivery to the Employer.
SECTION 5. DEFERRAL OF COMPENSATION:
5.1 The Contributions made on behalf of a Participant for the taxable year shall not
exceed the lesser of:
(A) $7,500.00 or
(B) 33 1/3 percent of the Participant's Includable Compensation
for such taxable year.
5.2 If an individual is a Participant in more than one eligible state deferred compensation
plan, the amount of compensation deferred under this Plan and all such other plans may not exceed
the maximum amounts set forth in Section 5.1.
5.3 In applying the limits set forth in Sections 5.1, an amount excluded from the
Participanfs gross income for the taxable year under Section 403(b) of the Internal Revenue Code
shall be treated as an amount deferred under this Plan.
SECTION 6. ADMINISTRATION OF THE PLAN:
6.1 The plan shall be administered by the Employer but may be administered through a
Plan Administrator employed under contract with, and under the direction of, the Employer
(hereinafter "Contract Administrator"). If a Contract Administrator is utilized, Participants receiving
services from said Administrator may be charged a fee for said services.
The Employer shall determine said fees in a manner deemed fair and equitable. The
Employer may withhold or collect, or have withheld or collected, 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.
6.2 The Employer may establish and maintain one or more funds ("deferred
compensation funds") to provide a convenient method of setting aside sufficient of its assets to meet
its future obligations under this Plan. The Employer shall at all times be the legal and benefieial
owner of all assets in the deferred compensation fund or funds~ and neither the existence of the Plan
nor of the deferred compensation fund or funds shall be deemed to create a trust or limit use by the
Employer of the assets therein for general Employer purposes. The obligation of the Employer to
make payments pursuant to this Plan is contractual only, and no Participant or Beneficiary shall
have a preferred claim or lien on or to the assets of the deferred compensation fund or funds, but
shall have only the fight to receive the benefits payable under the Plan.
6.3 The Contract Administrator or the Employer may transmit Deferred Compensation to
such deferred compensation funds as hereinafter established by the Employer pursuant to Section
6.2. In regard to such deferred compensation funds, written agreements between the Employer and
institutions accepting such funds for investment or deposit shall contain the following provisions,
as applicable:
6.3(a) The Employer shall be the legal and beneficial owner of all amounts
invested (as between Employer and Participan0. The Employer or its
designated representative shall hold all certificates, policies, and other
documents evidencing ownership of the amounts invested or deposited.
6.3(b) The Employer shall have the sole fight to vote any share of stock or proxies
which it may acquire or be entitled to by investment of such funds.
6.4 The Employer shall have the sole and. exclusive authority to enforce the Plan and
shall be responsible for its operation in accordance with its terms, provided however, that nothing
contained herein shall be deemed to diminish the duties owed to the Employer by any person, firm
or entity which performs any investment, administrative or other function in connection with the
Plan, nor to d'un'mish any fights of the Employer against such person, fu'm, or entity.
6.5 The Employer shall have the sole and exclusive authority to answer questions arising
out of the administration, interpretation, and application of the Plan. All determinations shall be
conclusive, final, and binding.
6.6 Prior to the time of distribution of benefits to the Participant under the Plan, each
Paxticipant shall elect the time and manner of such distribution to him/her, or in the event of his/her
death, to his/her Beneficiary, under the Plan. If no election is made, payment may be made
pursuant to Section 11.2. However, notwithstanding the Participant's selection, the Employer in
its sole discretion may determane the time and manner of payment of benefits.
6.7 In the event that the Employer should purchase an annuity as a means of investment
and/or distribution of funds in a Participant's book account, as that term is used in Section 10, the
Employer shall be both the owner and the named Beneficiary of such annuity contract.
6.8 If the Employer establishes more than one deferred compensation fund under
Section 6.2, the Employee upon executing the Participation Agreement, shall indicate his preference
or preferences pursuant to Section 4.3 prospectively only. Such expression of investment
preferences does not obligate the Employer to follow the Employee's designation. The Employer
may, but is not required to, invest deferred compensation at least monthly in the deferred
compensation funds established by the Employer.
6.9 In the event that the Employer establishes more than one deferred compensation fund
under Section 6.2, the Employer may elect to permit a Participant to request a change in preference
of investment for the Contributions made to the Plan on his behalf. Such request may be made only
with respect to compensation not yet earned and deferred. In addition, the Employer may elect to
permit a Participant to request, from among different modes of investments available under the
Plan, all property and fights to property (including fights as a beneficiary of a contract providing life
insurance protection) purchased with such amount, and all income attributable to such amounts,
property, or rights to property. The Plan Administrator may, but is not required to, honor such
requests. Nothing contained in this Plan shall be construed as requiring the Employer to invest
deferred amounts or as limiting the Employer's discretion with respect to making investments.
SECTION 7. EARNINGS OF THE FUND:
If a fund is established pursuant to Section 6.2, and such fund is invested and
reinvested in a manner intended to increase Plan assets, the net earnings of such fund may be
accumulated and held in the fund, provided that such assets remain the unrestricted assets of the
Employer, as set forth in Section 8 below.
SECTION 8. ASSETS OF THE PLAN:
All amounts deferred under the Plan, all property and fights to property (including rights as
a beneficiary of a contract providing life insurance protection) purchased with the amounts, and all
income attributable to the amounts, property, or fights to property shall remain (until paid or made
available to the Pa~icipant or Beneficiary under the Plan) solely the property and fights of the
Employer (without being restricted to the benefits under the Plan) subject only to the claims of the
Employer's general creditors. Accordingly, a Participant shall have no preferred or specific interest
by way of trust, escrow, or otherwise, in, and to, the specific assets or funds that may be
established.
SECTION 9. NON-RESPONSIBILITY CLAUSE:
The Employer may, but is not required to, invest Deferred Compensation 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 fight to approve or disapprove such
investment request or requests, for transfer of investment among different modes of investment
available under the Plan, as provided in Section 6.9. 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 as provided in Section
11.
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.
SECTION 10. MAINTENANCE OF BOOK ACCOUNTS:
A book account shall be maintained for each Participant by the Employer or provider as a
convenient method of record-keeping only. As described in this Section, said account is designated
in the Plan as "book account". There shah be credited to the book account all of the Contributions
made on behalf of a Participant under the Plan, and credited or debited all income or losses
attributable to such amounts. At the election of the Employer, separate accounts may be maintained
with respect to Participant Contributions and Employer Contributions. The "income or losses
attributable to amounts" shall mean the actual earnings or losses of the deferred compensation fund
established pursuant to Section 6.2 of the Plan, if such a fund is established by the Employer,
allocated on a pro rata basis.
SECTION 11. DISTRIBUTION OF BENEFITS:
11.1 Retirement Benefits and Election of commencement date on separation from service:
Distributions of a Participant's Account shall commence within 60 days following
the close of the Plan Year in which (i) the Participant (or former Participan0 attains (or would have
attained) Normal Retirement Age, or (ii) the Participant Separates from Service, whichever is later.
Notwithstanding the preceding sentence, if a Participant separates from service prior to Normal
Retirement Age, within 30 days following the date he separates from service, he may irrevocably
elect to have distributions from his Account commence within 60 days following a Plan Year which
precedes the Plan Year in which he will attain his Normal Retirement Age. Provided further, that
even if a Participant is still employed, distributions must commence by the required Beginning Date
of the Participant. The election for distribution of a Participant's Account shall be delivered in
writing to the Employer and forwarded to the Provider at least 60 days prior to the time that
payment is to commence. Retirement benefits shall be made in accordance with one of the payment
options described in Section 11.2.
11.2 Payment Options: As provided in Section 11.1, and 11.5, a Participant may elect to
have the value of his Account distributed in accordance with one of the following payment options,
provided that such option is consistent with the limitation set forth in Sections 11.3 and 11.4;
(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) Approximately equal monthly, quarterly, semi-annual or annual payments,
calculated to continue for a period certain chosen by the Participant.
(d) Payments equal to payments made by the issuer of a retirement annuity
policy acquired by the employer.
(e) Any other payment option elected by the Participant and agreed to by the
Employer.
A Participant's election of a payment option must be made at least thirty (30) days
before the payment of benefits is to commence.
DEFAULT: If a Participant fails to make a timely election of a payment option, benefits shall be
paid monthly commencing immediately for a period of five (5) years.
Installment distributions shall be in approximately equal installments which shall be
intended to exhaust the balance due Participant or Beneficiary at the expiration of the term over
which they will be made. Such installment amounts may be adjusted from time to time to take into
consideration gains or losses, if any, from funds invested.
Notwithstanding the foregoing, if any method elected by the Participant shall result
in installment payments of less than $25, the Employer shall make payments on an annual basis
aggregating installments otherwise due; or if the balance due Participant or Beneficiary is less than
$1,000, Employer shall discharge its obligation by a lump sum payment.
11.3 Minimum Distributions: Notwithstanding tbe provisions of Section 11.1 and 11.2,
beginning with the calendar year in which the Participant attains age 70-1/2 (the "70-1/2 calendar
year") and for each calendar year thereafter, a minimum distribution shall be made to the Participant
during such calendar year from his Account (or a retirement annuity purchased with such Accoun0
at least equal to a minimum mount determined in accordance with the following formula:
B = MINIMUM DISTRIBUTION
X
For purposes of the preceding formula, "B" is equal to the value of the Account on
December 31 of the preceding calendar year; "Y" is equal to the Fife expectancy of the Participant (or
the joint life expectancy of the Participant and his Beneficiary) based on his birthday (or their
birthdays) in the 70-1/2 calendar year; and "X" is the number of calendar years that have ended since
the Participant attained age 70-1/2 (including the 70-1/2 calendar year).
For purposes of this Section, the following rules shall apply when determining the
minimum distribution:
(i) the minimum distribution to be made with respect.to the 70-1/2 calendar year
may be delayed until no later than April 1 of the following calendar year;,
(ii) if, pursuant to clause (i), all or part of a minimum distribution is delayed
until after December 31 of the 70-1/2 calendar year, the value of "B" for the
calendar year following the 70-1/2 calendar year shall be reduced by the
amount of such delayed distribution;
(iii) the rife expectancy of a Beneficiary may be used only if the interest of such
person is payable on account of the death of the Participant (i.e. such person
is a primary beneficiary);
(iv) if them is more than one primary beneficiary, the life expectancy of the oldest
primary beneficiary shall be used;
(v) (A) except provided in (B) and (C), primary beneficiaries (and life
expectancy) shall be determined as of the required Beginning Date of
the Participant,
(B) with respect to the 70-1/2 calendar year, it is permissible to use the
life expectancy of any beneficiary designated during such year or at
anytime prior to the Participant's Required Beginning Date, and
(C) if a primary beneficiary is added or changed after the Required
Beginning Date of the Participant, the life expectancy of the new
primary beneficiaxy shall be substituted for all subsequent calendar
years if the life expectancy of such new beneficiary (determined as of
the Required Beginning Date) was shorter than the life expectancy of
the current primary beneficiary (determined as of the Requ'ned
Beginning Date);
(vi) if a primary beneficiary is a trust, the life expectancy of the beneficiafies of
the trust shall be used, provided:
(A) the trust is a valid trust under state law, or would be if funded,
(B) the trust is irrevocable,
(C) the trust beneficiaries who are beneficiaries of the Account of the
Participant are identifiable from the trust instrument, and
(D) a copy of the trust is provided to the Plan Administrator;
(vii) if, on the Required Beginning Date of the Participant or any time thereafter,
them is a primary beneficiary other than a natural person or a trust
described in (vi), the Participant shall be treated as not having a primary
beneficiary, even if there are natural persons also named as primary
beneficiaries; and
(viii) when determining the life expectancy of the Beneficiary of a Participant in
the 70~ 1/2 calendar year, unless the Beneficiary is the spouse of the
Participant, the Beneficiary shall not be considered to be more
than 10 years younger than the Participant (i.e., not younger than age 60 or
age 61).
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.
11.4 Death Benefits: Upon the death of a Participant, any remaining balance in his
Account shall be payable to his Beneficiary no later than 60 days following the Plan Year in which
the death of the Participant occurs. However, if the Beneficiary is the surviving spouse of the
Participant and distributions had not begun prior to the Participant's death, prior to the time that
distributions commences, such Beneficia~ may request that distributions commence at a date not
later than December 31 of the Plan Year in which the Participant would have attained Normal
Retirement Age. A Beneficiary may direct, from among different modes of investment available
under the Plan, the investment of amounts previously deferred under the Plan, all property and
rights to property (including rights as a beneficiary of a contract providing life insurance protection)
· purchased with such amounts, and all income attributable to such amounts, property, or fights to
property. The Employer may, but is not required to, honor such request.
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 Administrator receives proof of death of the
Participant.
Unless the Beneficiary elects otherwise, payments to such Beneficiary shall be made in a
lump sum. Subject to the following, a Participant may elect any payment option described in
Section 11.2.
(a) If the Participant died prior to his Reqff~red Beginning Date:
~'~ (i) if the Beneficiary is other than a natural person or a trust described in Section
11.3(vi), the entire Account balance shall be distributed within five years of
the death of the Participant;
(ii) if the Beneficiary is a natural person other than the surviving spouse of the
Participant or is a trust described in Section 11.3(vi), the entire Account
balance may be distributed in accordance with clause (i), or over a period
which does not exceed the life expectancy of the Beneficiary and, if
distributions had not commenced prior to the death of the Participant fifteen
(15) years; and
(iii) if the Beneficiary is the surviving spouse of the Participant, the entire
Account balance may be distributed in accordance with clause (i), or over a
period which does not exceed the life expectancy of the surviving spouse.
(b) If the Participant died after his Required Beginning Date, distributions to such
Beneficiary shall be made over a period of fane which does not exceed the remaining
life expectancy of the Participant (or remaining joint life expectancy of the Participant
and his designated beneficiary), as determined under Section 11.3 on his required
Beginning Date.
If distributions are made to a Beneficiary in accordance with paragraph (a)(ii) or (a)(iii)
(rather than in accordance with paragraph (a)(i)), minimum distributions to the Beneficiary shall be
made in each calendar year in an amount determined pursuant to the provisions of Section 11.3,
using only the life expectancy of the Beneficiary. Such life expectancy shall be determined as of the
birthdate of such Beneficiary in the calendar year following the Participant's death or, if the
surviving spouse is the Beneficiary and delays distribution of the Account, such later calendar year
when distributions commence to the surviving spouse.
If distributions are made to a Beneficiary in accordance with paragraph (b),
minimum distributions shall be made in each calendar year following the calendar year of the death
of the Participant, such minimum amount being determined pursuant to Section 11.3.
11.5 Disability: In the event of disability of a Participant, as defined in Section 3, while
he is an Employee of the Employer, the Employer shall pay to the Participant an amount equal to the
balance of the Participant% book account as of the month-end following the Participant's written
notice to the Employer of such disability, plus or minus subsequent gains or losses, such amount to
be distributed to him/her in any one of the payment options described in Section 11.2.
11.6 Other Dislribution: Notwithstanding any other provisions of the Plan, the Employer
may change the time or methods of benefit payments pursuant to this Plan.
SECTION 12. PLAN TO PLAN TRANSFERS:
12.1 Pursuant to an appropriate written agreement, the Employer may accept and credit to
a Participant's Account amounts transferred from another employer representing amounts held by
such other employer under an eligible deferred compensation plan described in Section 457 of the
Internal Revenue Code. Any such transferred amount shall not be treated as a deferral subject to the
limitations of Section 5.
12.2 If a Participant Separates from Service prior to Normal Retirement Age, and
becomes a Participant in an eligible deferred compensation plan of another employer (that is
described in Section 457 of the Internal Revenue Code), notwithstanding the provisions of Section
11.1, such Participant may request a distribution of his Account to the eligible deferred
compensation plan of the other employer. Requests for such transfer must be made in writing to the
Plan Administrator and shall be granted at the discretion of the Plan Administrator. If an amount is
to be transferred pursuant to this Section, the Plan Administrator shall transfer such amount directly
to the eligible deferred compensation plan of the other employer. Any transferred amount shall not
be treated as a defenal subject to the limitations of Section 5.
SECTION 13. NON-ASSIGNABILITY CLAUSE:
It is agreed that neither the Participant nor his Beneficiary, nor any other designee, shall
have any right to commute, sell, assign, or otherwise convey the right to receive any payments
hereunder, which payments and right thereto are expressly declared to be non-assignable; any such
attempt to assign shall be void; and in the event of any attempted assignment the Employer shall
have no further liability hereunder, nor shall any payments be transferable by operation of law in the
event of bankruptcy or insolvency, except to the extent otherwise provided by law, notwithstanding
the above clause.
No forfeiture of Participant's fights under the Plan is intended hereby.
SECTION 14. MISCELLANEOUS:
14.1 The City Treasurer, as Plan Administrator; is empowered to review, evaluate, and
make recommendations for product providers to the City Council. Additionally, specific duties and
responsibilities for overall deferred compensation plan administration axe noted below as follows:
A. CITY COUNCIL -
1. Authorize, by resolution, the Anaheim Deferred Compensation Plan
Document, in compliance with IRC 457.
2. Approves additions or removal of Plan Providers, as well as approves ma_ior
amendments to approved plans.
3. Authorize the City Treasurer to serve as Plan Administrator for the City of
Anaheim.
4. Authorize the administration of the Plan with assigned duties as follows:
B. CITY TREASURER - Is designated City of Anaheim Plan Administxator for
Deferred Compensation Plan for employees not covered
by CALPERS and such duties include:
1. Day to day administration, including determinations of Eligible
Employee status.
2. Authority to sign all legal agreements with approved Plan Providers,
including minor Plan amendments.
3. Provide recommendations on adding or deleting Plan Providers, to the
City Council.
4. Communicating the Plan benefits to employees.
5. Maintain a Plan Procedures Manual and related Plan documents.
6. Coordinate Plan Provider/City employee meeting schedules.
14.2 No Participant or other person shall have any legal or equitable right against the
Employer except as provided in the Plan, and other than is required herein with respect to
Participant Contributions, in no event shall the terms of employment of any Employee or Participant
be modified orin any way affected thereby.
14.3 Each Pafftcipant herein expressly agrees for himself/herself, his heirs, successors,
assignees and his beneficiaries that he shall look solely to the general assets of the Employer for the
payment of any such benefit to which he may become entitled under the Plan, and the Participant
acknowledges that all amounts deferred hereunder shall be available to satisfy the general
obligations of Employer.
14.4 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.
14.5 Captions used in the Plan are for the purpose of convenience only, and shall not
limit, restrict or enlarge the provisions of the Plan.
14.6 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.
14.7 As used in the Plan, the masculine or feminine or neuter gender, and the singular or
plural number shall be deemed to include the others unless the context clearly indicates otherwise.
14.8 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 records.
Such notice shall be deemed given when mailed.
14,9 Deductions for Participant's contributions to the Public Employees' Ref~rement
System, Social Security, or other retirement plan or associations, shall be made without reference to
Participant Conlributions, Employer Contributions, or other amounts deferred pursuant to the Plan.
14.10 A permitted leave of absence with pay shall not affect agreements to participate in the
Plan.
14.11 A permitted leave of absence without pay shall be considered to be a temporary
suspension of contribution in the Plan. Contribution shall be automatically reinstated in accordance
with the Participation Agreement as of the first day of the next pay period 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.
14.12 The Employer shall make no loans or advances to the Participant or Beneficiary
based upon book accounts, described herein, or upon any other obligations under the Plan.
14.13 In the event a writ of execution against a Participant's earnings is received by the
Employer, said Participant's Participation Agreement may be revoked as of the date of service of
said writ upon Employer. The Participant may execute a new Participation Agreement as of the
entry date next following the termination of said execution pursuant to applicable State or Federal
laws.
SECTION 15. AMENDMENT OR TERMINATION OF PI,AN:
The Employer has the sole and exclusive right to terminate this Plan for all Participants at
any time. Such termination shall have no effect on the rights of the Participant with respect to
Conaibutions previously made under the Plan or Deferred Compensation transferred pursuant to
Section 13.
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 Deferred Compensation.
This Plan is intended to qualify as an eligible deferred compensation plan under
IRC Section 457 and to constitute a retirement system within the meaning of the IRC Section
3121(b)(7)(F); 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 IRC Section 457 and IRC Section
3121(b)(7)(F), 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 IRC Section 457 and IRC Section
3121(b)(7)(F), the Employer shall correct such inconsistency, 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 IRC Section 457 and IRC Section 3121(b)(7)(F).
SECTION 16. TOTAL AGREEMENT:
This Plan 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 for Employees not
covered by CALPERS on the terms and conditions set forth herein.
DATE:
, c ^vo o 'rHE c v'o XIgt M
' C1T~ASURER OF THE CITY OF ANAHEIM
ATI'E~m~)
CITY CLERK OF THE CITY OF ANAHEIM