HomeMy WebLinkAboutAGENDA REPORT 1998 1021 CC REG ITEM 11CTO:
FROM:
DATE:
SUBJECT:
ITEM Ilefoo
705.31
Ci Y OF :- NOORPARK, CALIFORNIA
City Council Meeting
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CITY OF MOORPARK If
CITY COUNCIL AGENDA REPORT BY:.
The Honorable City Council
John E. Nowak, Assistant City Managers: L�
02 October 1998 (Council meeting of 10- 21 -98)
Consider Resolution No. 98- Adopting a Revised
Deferred Compensation Plan and Trustee /Custodial
Document.
Discussion: In 1991 the City of Moorpark established a 457
Deferred Compensation plan for its employees with Great
Western Bank. Subsequently, Great Western transferred its
deferred compensation operations to FundSelect Advisers,
Inc. In 1996 Congress modified the 457 deferred
compensation laws to assure that the employee contributions
in the funds are under a custodial care and that the
employer cannot access the money for any other purpose (a
result of the Orange County bankruptcy). The law also
increased the maximum amount of permitted annual deferred
compensation and indexed future increases in that limit.
Great Western Bank has requested the City of Moorpark to
adopt a revised Plan and a Trustee/ Custodial Document that
will implement the new law. It also identifies the
Assistant City Manager as the City's trustee of the funds,
making it the same as the recently adopted International
City /County Management Association Retirement Corporation's
deferred compensation program. Other aspects of the Plan
remain the same.
The proposed resolution with the revised Trustee/ Custodial
Document is attached for information.
0001!3
Deferred Compensation Plan
Council meeting of 10 -21 -98
Page 02
Recommendation: The City Council is requested to adopt
Resolution No. 98- adopting a revised deferred
compensation plan and trustee /custodial document.
Attachment
RESOLUTION NO. 98-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF MOORPARK, CALIFORNIA ADOPTING A REVISED
DEFERRED COMPENSATION PLAN AND TRUSTEE /
CUSTODIAL DOCUMENT.
WHEREAS, the City of Moorpark has employees currently
participating in a 457 deferred compensation retirement plan
administered by Great Western Bank; and
WHEREAS, the City wishes to adopt the FundSelect Specimen Plan
and Trust /Custodial Document, which includes those statutory
revisions made to Internal Revenue Code Section 457 by the Small
Business Job Protection Act of 1996; and
WHEREAS, Great Western Bank /FundSelect Advisors are able to
administer the deferred compensation plan for the City in
accordance with the terms of their respective agreements.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF MOORPARK, CALIFORNIA AS FOLLOWS:
Section 1. The City hereby establishes the deferred compensation
plan and adopts the 457 Plan and Trust /Custodial Document attached
hereto as Exhibit "A" and made a part hereof.
Section 2. The assets of the Plan shall be held in a
Trust /Custodial Fund, with the City's designated officer appointed
as and serving as trustee /custodian, for the exclusive benefit of
the Plan participants and their beneficiaries, and the assets shall
not be diverted for any other purpose. The City's beneficial
ownership of Plan assets held in Great Western Bank shall be held
for the exclusive benefit of the Plan participants and the
beneficiaries.
Section 3. The City's designated officer is hereby authorized to
execute all necessary agreements with FundSelect Advisers, Inc. and
Great Western Bank incidental to the administration of the Plan,
600201
Resolution No. 98-
Page 02
and shall do all things necessary and proper to implement this
Resolution.
PASSED, APPROVED AND ADOPTED this 21St day of October 1998.
Patrick Hunter, Mayor
ATTEST:
Deborah S. Traffenstedt, City Clerk
EXHIBIT "A"
SPECIMEN PLAN AND TRUST /CUSTODIAL DOCUMENT
CITY OF MOORPARK
DEFERRED COMPENSATION PLAN
AMENDED AND RESTATED PLAN AND TRUST /CUSTODIAL
DOCUMENT
Section 1. Name: The name of this Plan and Trust/Custodial Document is the City of
Moorpark, State of California, Deferred Compensation Plan, hereinafter referred to as the
"Plan." This Plan is the continuation in restated form of the 457 Deferred Compensation
Plan previously established by the City of Moorpark.
Section 2. Purpose: The primary purpose of the Plan is to attract and retain personnel
by permitting them to enter into agreements with the Employer that will provide for deferral
of payment of a portion of their current Compensation until death, disability, retirement,
termination of employment, or other events as provided herein, in accordance with
applicable provisions of State law, and Section 457 and other applicable Sections of the
Internal Revenue Code. Except as otherwise stated herein, this amended and restated
Plan shall become effective November 1, 1998.
Section 3. Definitions: For the purposes of this Plan when used and capitalized herein
the following words and phrases shall have the meanings set forth below.
3.1 "Account" means the book account maintained in accordance with
Subsection 6.4 for the purpose of recording Deferred Compensation and
investment gains or losses allocated thereto.
3.2 "Administrator" means the service provider or providers with whom the
Employer contracts either investment, record - keeping or other management
services for the Plan.
3.3 "Beneficiary" means the person or persons a Participant designates to
receive his interest under the Plan after the Participant's death, [provided
that a married Participant may designate someone other than his spouse as
his Beneficiary only with his spouse0s consent.] The designation may be
made, and may be revoked and changed, only by a written instrument (in
form acceptable to the Employer) signed by the Participant consented to by
the ParticipantOs spouse, if necessary, and filed with the Employer prior to
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the ParticipantOs death, or if no designated Beneficiary survives the
Participant, his Beneficiary shall be his spouse if he is married, or, if not, his
estate.
3.4 "Code" means the Internal Revenue Code of 1986, as amended.
3.5 "Compensation" means the total of all amounts of 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 services performed during the period
that the Employee is a Participant, including any amounts of Deferred
Compensation that may be credited to the Participant's Account.
Compensation shall be taken into account at its present value and its amount
shall be determined without regard to any community property laws.
3.6 "Trustee /Custodian" means a bank, trust company, financial institution, or
other legally authorized entity appointed by the Employer to have custody of
assets in the Investment and Trust/Custodial Fund.
3.7 "Deferred Compensation" means the amount of Compensation which the
Participant defers pursuant to his Participation Agreement in accordance with
the provisions of this Plan.
3.8 "Disability" means the 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 on the basis of advice from a
physician or physicians.
3.9 "Election Period" means the 59 -day period after separation from service with
the Employer during which a Participant may elect to defer commencement
of benefit payments under the Plan.
3.10 "Employee" means any officer, employee or elected official of the Employer;
provided, however, that all extra -help or temporary employees and/or any
contract employee whose contract does not provide for participation in the
Plan shall not be "employees ".
3.11 "Employer" means the City of Moorpark, California.
3.12 "Employer Contribution" means the contribution made by the Employer
pursuant to Subsection 5.2 of the Plan.
3.13 "Employment Period" means a period from January 1 through December 31
of the same year, except that the first Employment Period of an Employee
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hired on any date other than January 1 shall be the period beginning with the
date of employment and ending on December 31 of the same year.
3.14 "Includible Compensation" means Compensation which (taking into account
the provisions of the Code, including Section 403(b) and Section 457) is
currently includible in gross income for federal income tax purposes.
3.15 "Investment and Trust/Custodial Fund" means a fund established by the
Employer as a convenient method of setting aside a portion of its assets to
meet its obligations under the Plan, as provided in Subsection 6.1.
3.16 "Normal Retirement Age" means the date a Participant attains age 70-1/2 or,
at the election of the Participant, any earlier date that is no earlier than the
earliest age at which the Participant has the right to retire under the
California Public Employee Retirement System Retirement Plan (CaIPERS)
and to receive immediate retirement benefits calculated without actuarial
reduction, but in any event not later than the date or age at which the
Participant separates from service with the Employer. If a Participant is
employed by the Employer beyond age 70 -1/2, his Normal Retirement Age
may be the age at which he separates from service with the Employer;
provided that the distribution requirements of Subsection 7.5 are still satisfied
with respect to the Participant, and provided further that a Participant who
has utilized the catch -up deferral provisions of Subsection 5.3(b) may not
thereafter change his Normal Retirement Age.
3.17 "Participant" means any Employee who fulfills the participation requirements
under Section 4.
3.18 "Participation Agreement" means the agreement executed and filed by an
Employee with the Employer pursuant to Section 4, under which the
Employee elects to become a Participant in the Plan to defer Compensation
thereunder.
Section 4. Participation in the Plan:
4.1 Participation. Each Employee may elect to become a Participant in the Plan
and defer payment of Compensation not yet earned by executing a written
Participation Agreement and filing it with the Employer at any time during
active employment with the Employer. Compensation shall be deferred for
any calendar month only if a Participation Agreement providing for such
deferral has been entered into and is effective before the beginning of such
month.
4.2 Modification of Deferral. A Participation Agreement shall remain in effect
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until it is terminated or modified. A Participant may modify an existing
Participation Agreement to effect subsequent deferrals in accordance with
rules established by the Employer. Such modification must be filed by the
Participant with the Employer prior to the beginning of the month for which
the modification is to be effective.
4.3 Termination of Deferral. A Participant may terminate further deferral of
Compensation under the Plan effective at the beginning of any month by
filing with the Employer an executed notice of termination of his Participation
Agreement prior to the effective date of termination. Once further deferral of
Compensation is terminated, a Participant may rejoin the Plan in accordance
with rules established by the Employer. No previously deferred amounts
shall be payable to an Employee upon terminating further deferral of
Compensation under the Plan unless otherwise due pursuant to Section 7
hereof.
4.4 Selection of Investment Options. The Participation Agreement shall also
provide for the selection, pursuant to Subsection 6.3, of one or more
investment options in the Investment and Trust/Custodial Fund to which the
ParticipantOs Deferred Compensation shall be allocated; provided that any
amounts so allocated equal or exceed a minimum of $10.00 per pay period.
The employer shall invest the Participant's deferrals in accordance with such
selection.
Section 5. Amount of Deferrals: Deferral of Compensation:
5.1 Deferral of Compensation. During each Employment Period in which an
Employee is a Participant in the Plan, the Employer shall defer payment of
such part of the Participant's compensation as is specified by the Participant
in the Participation Agreement, which the Participant has executed and filed
with the Employer.
5.2 Employer Contribution. During each Employment Period in which an
Employee is a Participant in the Plan, the Employer may make an Employer
Contribution to the Participant's Account equal to the percentage of the
Participant's Compensation specified by resolution or labor contract
approved by the Employer.
5.3 Limitation. The amount of Compensation which may be deferred by a
Participant and the amount of employer Contributions, if any, made to a
Participant's Account are subject to the following limitations:
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0000%(x `
(a) Annual Limitation. Except as provided in Paragraph (b) below, the maximum
amount that a Participant may defer during an Employment Period, when
added to the amount of any Employer Contribution for such Participant
during the Employment Period, shall not exceed the lesser of $7,500 (or as
may be adjusted for cost -of- living by the Secretary of the Treasury) or 33-
1/3% of the Participant's Includible Compensation. The minimum amount
that a Participant may defer is $10.00 per pay period.
(b) Catch -Up Deferrals. For one or more of a Participant's last three
Employment Periods ending before the Participant attains Normal
Retirement Age, the maximum amount a Participant may defer during the
Employment Period, when added to the amount of any Employer
Contribution for such Participant during the Employment Period established
in Paragraph (a) above, plus so much of such maximum amounts
determined under such Paragraph (a) for Employment Periods beginning
after December 31, 1978 but before the current Employment Period in which
the Participant was eligible to participate in the Plan (or in another eligible
deferred compensation plan under Section 457(b) of the Code) less the
amount of compensation actually deferred under such Paragraph (a) for such
prior Employment Periods shall not exceed $15,000 per each three
Employment Periods. The provisions of this Paragraph (b) shall not apply
more than once to each participant.
(c) Aggregation of Plans. In applying Paragraphs (a) and (b) above, the amount
that may be deferred by a Participant under the Plan for any Employment
Period shall be reduced by (i) the amount deferred by the Participant for such
Employment Period under any other eligible deferred compensation plan
under Section 457(b) of the Code, (ii) any Employment Period under Section
403(b) of the Code, (iii) any amount excluded from the Participant's gross
income for such Employment Period under Section 402(a)(8) or Section
402(h)(B) of the Code, and (iv) any amount with respect to which a deduction
is allowable for such Employment Period by reason of a contribution on
behalf of the Participant to an organization described in Section 501(c)(18)
of the Code. The Participant shall inform the Employer of his participation
in any of the above - listed plans and is solely responsible for any violation of
this Paragraph (c).
Section 6. Investment and Trust/Custodial Fund Provisions:
6.1 Investment and Trust/Custodial Fund. The Employer shall establish an
Investment and Trust/Custodial Fund for the purpose of investing amounts
of Deferred Compensation and Employer Contributions, if any, credited to
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Participant Accounts. Such Participants Accounts shall at all times be held
by the Trustee /Custodian for the exclusive benefit of the Participant or
Beneficiary.
6.2 Trust/Custodial Provisions:
(a) Trustees /Custodian. The Trustees /Custodian shall be at any time the duly
appointed and authorized Assistant City Manager.
(b) The Trustees /Custodian or the Employer shall adopt various investment
options for the investment of deferred amounts by Participants or their
Beneficiaries, and for the investment of deferred amounts by Participants or
their Beneficiaries, and shall monitor and evaluate the appropriateness of
continued offering by the Plan. The Trustees /Custodian or the Employer
may de- select options that are determined to be no longer appropriate for
offering. In adopting or de- selecting such options, the Trustees /Custodian
or Employer, the Participants or their Beneficiaries shall be entitled to select
from among the available options for investment of their deferred amounts.
In the event options are de- selected, the Trustees /Custodian or Employer
may require Participants to move balances to an alternative option offered
by the Plan. If any Participants fail to act in response to the written notice,
the Trustees /Custodian or employer shall transfer monies out of the de-
selected option to an alterative option chosen by the Trustees /Custodian or
Employer. By exercising such right of select investment options or by failing
to respond to notice to transfer from a de- selected option where the
Trustees /Custodian or employer move the monies on behalf of such
Participants, the Participants, and their Beneficiaries agree that none of the
Plan fiduciaries will be liable for any investment losses, or lost investment
opportunity in situations where monies are moved by Trustees /Custodian or
Employer, that are experienced by a Participant or Beneficiary in the
investment option(s) they select or are selected for them if they fail to take
appropriate action in regard to de- selected fund.
(c) Designation of Fiduciaries. The Employer, administrator and
Trustees /Custodian and the persons they designate to carry out or help carry
out their duties or responsibilities are fiduciaries under the Plan. Each
fiduciary has only those duties or responsibilities specifically assigned to him
under the Plan or delegated to him by another fiduciary. Each fiduciary may
assume that any direction, information of action of another fiduciary is proper
and need not inquire into the propriety of any such action, direction or
information. Except as provided by law, no fiduciary will be responsible for
the malfeasance, misfeasance or nonfeasance of any other fiduciary.
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t.iOUCS
(d) Fiduciary Standards.
(i) The Trustees /Custodian and other fiduciaries shall discharge their
duties with respect to this Plan solely in the interest of the Participants
and Beneficiaries of the Plan. Such duties shall be discharged for the
exclusive purpose of providing benefits to the Participants and
Beneficiaries and defraying expenses of the Plan.
(ii) All fiduciaries shall discharge their duties with the care, skill, prudence
and diligence under the circumstances then prevailing that a prudent
person acting in like capacity and familiar with such matters would use
in the conduct of an enterprise of a like character and with like aims,
and as defined by applicable State law.
(e) Trustees /Custodian's Powers-and Duties. The Trustees /Custodian's powers
and duties shall be those defined under applicable State law.
(f) This Plan and Investment and Trust/Custodial Fund is intended to be exempt
from taxation under Section 501(a) of the Internal Revenue Code ( "Code ")
and intended to comply with Section 457(g) of such code. The
Trustees /Custodian shall be empowered to submit or designate appropriate
agents to submit this Plan and Investment and Trust/Custodial Fund to the
Internal Revenue Service for a determination of the eligibility of the Plan
under Section 457, and the exempt status of the Investment and
Trust/Custodial Fund under Section 501(a), if the Trustees /Custodian
conclude that such a determination is desirable.
6.3 Investment Options. Each Participant may allocate his Deferred
Compensation and employer Contributions, if any, among the investment
options, if any, provided under the Plan. A Participant may change his
investment options in accordance with rules established by the Employer.
Such modification may effect transfers of Compensation already deferred
and any Employer Contributions that may have already been made from one
investment option to another and /or may prospectively change the
investments to which future deferrals of Compensation and Employer
Contributions, if any, shall be allocated, effective as soon as practicable after
the Participant makes the change.
6.4 Account. The Employer shall maintain an Account for each Participant to
which shall be credited any Employer Contributions made for such
Participant and such Participant's Deferred Compensation at such times as
it would have been payable but for the terms of his Participation Agreement.
Each Participant's Account shall be revalued at least quarterly to reflect the
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earnings, gains and losses creditable thereto or debitable therefrom in
accordance with the performance of the investment options selected by the
Participant pursuant to Subsections 4.4, 6.2 and 6.3. The earnings, gains
and losses creditable to or debitable from an Account shall mean the actual
earnings, gains and losses of each investment option, on a pro rata basis
among the Accounts of those Participants who selected that investment
option.
Section 7. Distribution of Benefits:
7.1 Payments on Separation_ from Service. Subject to the provisions of
Subsection 7.5, upon a Participant's separation from service with the
Employer for any reason (including disability), the entire amount credited to
his Account (less any federal, state or local income tax required to be
withheld therefrom) shall be paid to him in a single lump sum immediately
after the expiration of the Election Period; provided, however, that during
such Election Period a participant (including a Participant who has utilized
the catch -up deferral provisions of Subsection 5.3(b) with an Account
balance in excess of an amount specified by the Employer, which amount
shall not exceed the amount specified in Section 457(e)(9)(A) of the Code,
as the same may be adjusted from time -to -time, may irrevocably elect in
writing (on a form acceptable to the Employer) a specific later date for first
receiving payment under the Plan. In addition, a Participant may elect a
different method of payment as provided in Subsection 7.2 by filing the
appropriate form with the Employer no later than ninety days prior to the
Participant's elected payment date. The Account balance of a Participant
with less than the amount specified by the Employer in his Account at the
time of his separation from service shall be paid in a single lump sum to the
Participant (less applicable taxes) as soon as practicable following his
separation from service.
A Participant who has elected a specific later date for first receiving a
payment under the Plan, as set forth above, may elect to further defer the
date upon which such payment(s) will begin. Such election to further defer
payment may be made only once, to a later date, as long as payments have
not yet begun when such election is made.
7.2 Optional Forms of Benefit Payments. Subject to the provisions of
Section 7.5, as an alternative to payment in a lump sum, a Participant
whose Account balance exceeds the amount specified by the
Employer under Subsection 7.1 above, may elect to receive payment
under the Plan in the form of substantially equal monthly, quarterly,
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000210
semiannual or annual installments for a period not to exceed the life
expectancy (which may be recalculated annually) of the Participant or
the joint life expectancy of the Participant and his Beneficiary;
provided that no single payment (other than the last scheduled
payment) is less than $100.00. Any amount remaining in the
Participant's Account at the end of the specified period shall be paid
in a single lump sum payment. Alternatively, such a Participant may
elect an annuity under any one of the settlement options offered in a
commercial annuity contract purchased by the Employer for the
purpose of providing benefit payments for the life of the Participant or
the joint lives of the Participant and his Beneficiary and once begun,
periodic payments must be made not less frequently than annually,
in substantially non - increasing amounts.
7.3 Emergency Withdrawals. Except as otherwise provided in Subsection
7.5, distributions to or on behalf of a Participant shall be made only in
the event of his separation from service with the Employer, unless
such Participant experiences an unforeseeable emergency.
"Unforeseeable emergency" means a severe financial hardship to the
Participant resulting from (a) a sudden and unexpected illness or
accident of the Participant or a dependent of the Participant as
defined in Section 152(a) of the Code, (b) the Participant's loss of
property due to casualty, or (c) other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the
control of the Participant. Examples of events which may cause an
"unforeseeable emergency" are catastrophic illness, flood, fire,
earthquake, death in the family or disabling injury. Withdrawals will
not be permitted for expenditures normally budgetable, such as a
down payment on a home, purchase of an automobile, or education
expenses. Withdrawal will not be allowed to the extent that the
hardship may be relieved (i) through reimbursement or compensation
by insurance or otherwise, (ii) by liquidation of the Participant's assets
(to the extent such liquidation would not itself cause severe financial
hardship), or (iii) by cessation or temporary suspension of temporary
suspension of deferrals under the Plan. Withdrawals of amounts
because of an unforeseeable emergency will be permitted only to the
extent reasonably needed to satisfy the emergency. Former
Employees who have not yet received distribution of their entire
Account balances shall also be eligible for emergency withdrawals
under the same conditions as active Participants. A Participant or
former Employee who experiences such an unforeseeable emergency
may apply to the Employer for a withdrawal which shall be permitted,
in the discretion of the Employer, only to the extent it complies with
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the requirements of this Subsection 7.3. Any amount approved
hereunder for emergency withdrawal shall be paid to the Participant
in a single lump sum (less any applicable withholding taxes). The
withdrawal shall be effective at the later of the date specified in the
Participant's application or the date approved by the Employer.
7.4 Payments on the Death of a Participant.
(a) Death After Benefit Commencement. If the Participant dies after
having begun to receive installment payments in accordance with
Section 7.2, payment of the remainder of such scheduled payments
shall be suspended for a period of sixty days after the Participant's
death. During each sixty -day suspension period, the Beneficiary of
such Participant may elect, subject to the distribution requirements of
Subsection 7.5, to receive the balance then credited to the
Participant's Account in a single lump sum or in installments as
specified under Section 7.2, provided that the Participant's Account
will be distributed to the Beneficiary at least as rapidly as under the
method of distribution being used prior to the Participant's death. If
no such election is made by the Beneficiary by the end of the sixty -
day suspension period, the remaining installment payments selected
by the Participant (adjusted, if necessary, to comply with the
distribution requirements of Subsection 7.5) shall be paid to the
Beneficiary.
(b) Death Prior to Benefit Commencement. Subject to the provisions of
Section 7.5, if the Participant dies before distribution of his Account
commences, his Beneficiary shall receive distribution of such
Participant's Account as provided under Section 7.1, treating the
Beneficiary as if he were the Participant; provided, however, that if the
Beneficiary elects installment payments, the Participant's entire
Account shall be distributed over a period not to exceed 15 years (or
the life expectancy of the Participant's surviving spouse, if such
spouse is the Participant's Beneficiary).
7.5 Provisions Required Pursuant to Code Section 401(a)(9).
(a) Timing and Amount of Required Distributions.
(1) Notwithstanding any of the foregoing, distribution of a
Participant's entire Account shall commence not later than
April 1 following the calendar year in which he attains age 70-
1/2, whether or not the Participant has separated from service
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with the Employer. Unless the form of distribution is a single
lump sum payment, distributions shall be made over a period
not exceeding the life expectancy of the Participant, or the joint
life expectancy of the Participant and his Beneficiary.
(2) If the Participant's entire Account is to be distributed in a form
other than a single lump sum payment, then the amount to be
distributed each year must be at least an amount equal tot he
quotient obtained by dividing the Participant's entire Account
balance (determined as of the last valuation date of the
preceding calendar year) by the life expectancy of the
Participant and his designated Beneficiary. Life expectancy
and joint life expectancy shall be computed by the use of the
return multiples contained in Section 1.72 -9 of the Treasury
Regulations.
(b) Distributions After Death.
(1) If the Participant dies after having begun to receive installment
payments in accordance with Subsection 7.2 , the remaining
portion of such Participant's Account shall continue to be
distributed at least as rapidly as under the method of
distribution being used prior to the Participant's death.
(2) If the Participant dies before distribution of his Account
commences, the Participant's entire Account shall be
distributed in one of the distribution options provided under
Subsections 7.1 and 7.2 no later than December 31 of the
calendar year which contains the fifth anniversary of the
Participant's death except:
(i) that if the beneficiary is not the Participant's spouse, and
such non - spousal beneficiary elects to commence distribution
by December 31, of the year following the year the Participant
died, such non - spousal beneficiary may elect a periodic
payment not exceeding 15 years, as set forth in Sec. 7.4(b)
above; or
(ii) that if the designated Beneficiary is the Participant's
surviving spouse, such spouse may elect to receive distribution
of the Participant's entire Account in substantially equal
monthly, quarterly, semiannual or annual installment payments
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000213
over the life expectancy of the surviving spouse. Such
distributions are required to commence on or before the later
of (i) December 31 of the calendar year immediately following
the year in which the Participant died, or (ii) December 31 of
the calendar year in which the Participant would have attained
age 70 -1/2. If the spouse dies before such payments begin,
subsequent distributions shall be made as if the spouse had
been the Participant. For purposes of this subparagraph,
payments will be calculated by use of the return multiples
specified in Section 1.72 -9 of the Treasury Regulations.
(c) Interpretation. The provisions of this Subsection 7.5 shall override
any distribution options in the Plan that are inconsistent with this
Subsection. All distributions under the Plan shall be made in
accordance with Treasury Regulations issued under Section 401(a)(9)
of the Code. The provisions of this Subsection shall be effective as
of January 1, 1989.
7.6 Effect of Reemployment. If a Participant who separates from service
again becomes an Employee, no distributions shall be made or
continued to the Participant while he is so employed. Any amounts
which the Participant was entitled to receive on his prior separation
from service shall be held until the Participant or his Beneficiary is
again entitled to a distribution under the terms of the Plan.
7.7 De Minimis Distributions. Notwithstanding any other provision of the
Plan, if the Participant has not deferred any amount for a 2 -year
period and the total amount of the Participant's Account under the
Plan does not exceed $2,500, a Participant may elect to receive, or
the Plan may elect to distribute without the Participant's consent, the
entire value of the Participant's Account in a lump sum distribution.
No subsequent distribution under this provision to such Participant
may be made, once such distribution occurs.
Section 8. Nonassignability: The interest of a Participant in the contractual obligation of
the Employer, established by the Plan, shall not be assignable in whole or
in part, directly or by operation of law or otherwise, in any manner.
Section 9. Miscellaneous:
9.1 No Effect on Employment. Neither the establishment of the Plan nor
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U()021i
any modification thereof, nor the establishment of an Account, nor any
agreement between the Employer and the Custodian, nor the
payment of any benefits, shall be construed as giving to any
Participant or other person any legal or equitable right against the
Employer except as herein provided, and in no event shall the terms
of employment of the Employee or Participant be modified or in any
way affected hereby.
9.2 Construction. This Plan shall be construed, administered and
enforced according to the Constitution and laws of the State of
California.
9.3 Plan -to -Plan Transfers. Plan -to -plan transfers shall be permitted as
follows:
(a) Transfers from Plan. To the extent and in the manner permitted under
Section 457(e)(10) of the Code and the Treasury Regulations
thereunder, the balance in the Account of a Participant who is no
longer an Employee and who subsequently becomes a participant in
another eligible deferred compensation plan under Section 457(b) of
the Code shall be transferred to his account in the plan of his new
employer; provided that such plan provides for the receipt of such
transferred amounts. If a Participant's Account has been transferred
to such plan, the Participant shall not be entitled to receive any benefit
under this Plan, notwithstanding anything in this Plan to the contrary.
(b) Transfers to Plan. If prior to becoming an Employee, an individual
participated in another eligible deferred compensation plan under
section 457(b) of the Code, the Employer may in its discretion accept
transfer of any amount credited to the deferred compensation account
of such Employee under that plan and, in the event of such transfer,
shall establish for the Employee an Account under the Plan to which
such amount shall be treated as an amount deferred under and
subject to the terms of the Plan, except that no amount so transferred
will be taken into account in applying the deferral limitations set forth
in Subsection 5.1.
Section 10. Amendment and Termination:
10.1 Amendment and Termination. The Employer may at any time and
from time to time by action of its governing or appointing board as
evidenced by an instrument in writing duly executed by the Employer
modify, amend, suspend, or terminate the Plan in whole or in part
Page 13 of 17
(including retroactive amendments) or cease deferring Compensation
pursuant to the Plan for some or all Participants. In the event of such
an action, the Employer shall deliver to each affected Participant a
notice of such modification, amendment or termination or a notice that
it shall cease deferring Compensation; provided, however, that the
Employer shall not have the right to reduce or affect the value of any
Participant's Account or any rights accrued under the Plan prior to
such modification, amendment, termination or cessation.
10.2 Interpretation. This Plan is intended to quality as an eligible deferred
compensation plan under Section 457 of the Code, and shall be
interpreted and administered in a manner consistent with such
qualification. The Employer reserves the right to amend the Plan to
the extent that it may be necessary to conform the Plan to the
requirements of Section 457 of the Code an 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
administration within the period provided in Section 457 of the Code.
The Employer reserves the rights to take such action and do such
things as are required to make the Plan, as administered, consistent
with Section 457 of the Code.
Section 11. Plan Administration:
11.1 Administration. The Plan shall be administered by the Employer, which may
recommend rules and regulations for the administration of the Plan
consistent with the terms of the Plan. All rules and regulations
recommended by the Employer shall be final and conclusive upon adoption
by resolution of the governing or appointing board of the Employer.
11.2 Powers. The Employer shall have all powers to perform all duties necessary
to exercise its functions including, but not limited to, the:
(a) Determination of Employees' eligibility, participation and benefits under the
Plan;
(b) Establishment and maintenance of written records showing at any time the
interest of a Participant in his book Account;
(c) Interpretation and construction of the provisions of the Plan;
Page 14 of 17
000'21.113
(d) Direction of the Employer (or the Trustee /Custodian on behalf of the
Employer) to make disbursement of benefits under the Plan;
(e) Appointment of such agents, advisors, counselors and delegates including
an Administrator as may be necessary and appropriate for the administration
and operation of this Plan and the delegation to such agent, advisors,
counselors and delegates of any of its discretionary and ministerial powers
and duties in accordance with this Section; and
(f) Composition of any provision to Participants of all forms as described in this
Plan.
11.3 Revocability of Administrative Action. Any action taken by the Employer with
respect to the rights or benefits under the Plan of any person shall be
revocable by the Employer as to payments or distributions not theretofore
made pursuant to such actions and appropriate adjustments may be made
in future payments or distributions to a Participant or Beneficiary to offset any
excess payment or underpayment theretofore made to such Participant or
Beneficiary.
Section 12. Gender and Plurals. The masculine gender shall include the feminine and
neuter, the masculine pronoun shall include the feminine and neuter, the
singular number the plural, and conversely, whenever appropriate.
Section 13. Circumstances Excusing Performance. Neither party to the Contract shall
be in default by reason of failure to perform in accordance with its terms if
such failure arises out of causes beyond reasonable control and without fault
or negligence on their part. Such causes may include, but are not limited to,
acts of God or public enemy, acts of the government in either its Sovereign
or contractual capacity, fires, floods, epidemics, quarantine or restrictions,
freight embargoes, and unusually severe weather.
Section 14. Assignability. No party to this Agreement shall assign the same without the
express written consent of the other party, which consent not to be
unreasonably withheld. This provision shall not restrict Fund Select
Advisers, Inc. right to delegate certain recordkeeping or other services to an
agent. Unless agreed to by the parties, no such assignment shall relieve any
party to this Agreement of any duties or responsibilities herein.
Page 15 of 17
0000 %J."'"r
Section 15. Parties Bound. This Agreement and the provisions thereof shall be binding
upon and shall inure to the benefit of the successors and assigns of the
respective parties.
Section 16. Arbitration. Any dispute which arises between the parties with respect to any
of the terms of this Agreement, whether such dispute arises during the term
of the Contract and any extension period, or after the termination, shall be
resolved through binding arbitration. Arbitration shall be conducted in
accordance with commercial rules of either the American Arbitration
Association ( "AAA ") or the Judicial Arbitration and Mediation Service
( "JAMS "). Each party agrees to waive its right, if any, to a jury trial and
punitive damages. Each party shall bear its own costs, including attorney
fees, related to the arbitration proceedings.
Section 17. Unlawful Provisions. In the event any provisions of this Agreement shall be
held illegal or invalid for any reason, said illegality or invalidity shall not affect
the remaining parts of the Agreement, but the same shall be construed and
enforced as if said illegal or invalid provision had never been inserted herein.
Notwithstanding anything contained herein to the contrary, no party to this
Agreement will be required to perform or render any services hereunder, the
performance or rendition of which would be in violation of any laws relating
thereto.
Section 18. Modification. This writing is intended both as the final expression of the
Agreement between the parties and as a complete statement of the terms of
the Agreement, pursuant to California Code of Civil Procedure Section 1856
or its successor(s). No modification of this Agreement shall be effective
unless and until such modification is evidenced by a writing signed by both
parties.
Section 19. No Waiver. The failure of either party to enforce any provision of this
Agreement shall not be construed as a waiver of that provision or of any
other provision in the Agreement and either party may, at any time, enforce
the provision previously waived, unless a modification to this Agreement has
been executed.
Section 20. Severability. The provisions of this Contract are severable, and, if for any
reason a clause, sentence, paragraph, or other part of this Contract shall be
Page 16 of 17
(A)MIS
determined to be invalid by a court or federal or state agency, board, or
commission having jurisdiction over the subject matter thereof, such invalidity
shall not affect other provisions of this Contract which can be given effect
without the invalid provision.
Section 21. Notices. All notices and demand to be given under this Agreement by one
party to another shall be given by certified or United States mail, addressed
to the party to be notified or upon whom a demand is being made, at the
respective addresses set forth in this Agreement or such other place as
either party may, from time to time, designate in writing to the other party.
Notice shall be deemed received on the earlier of, three days from the date
of mailing, or the day the notice is actually received by the party to whom the
notice was sent.
If to Fund Select Advisors, Inc.
If to Employer
Fund Select Advisors, Inc.
P O Box 20629
Columbus, Ohio 43220
Assistant City Manager
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective on
the date first written above.
EMPLOYER
By Assistant City Manager
DATE SIGNED:
FUND SELECT ADVISORS, INC.
DATE SIGNED:
Page 17 of 17
00021.5