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HomeMy WebLinkAboutCC RES 88-107RE50�iTi'IQd I�. 88-107 • • • i •� «� • � « � •• i � a. �• v ��•� �• • r� � ,. � y� w a. •• i�• a � • ,. � •�. . • � � �• • a� •• �• y , • • • •,� r.• • • i w • ��.�• �� �••�� •• �•� .• • • �EAS, the City has established a Deferr�ed �rLsatian Plan available to all eligible city e�layees, elected officials, and ir�dependent vocitractors puxsuant to Fedexal legislation permitting such Plans; and Wf�ftEAS, certain substantial tax benefits could accrue to emplayees, elected officials, and indeper�dent contractors participating in said Deferred Ca�er�.sati� Plans; arxi `d-�2EA.S, such benefits act as incentives to City emplaye�s to wluntarily set aside and irn�st portiorc�s of the currerit inoane to meet their future finarLcial requi�zts and supplemexit their City retire��ent and Social Sect�rity (if applicable), at rb cost to the City; and Hh�tE'�15, The U.S. Conference of Mayors has established a master prototype defe.rred aa�ensation program for cities and political subdivisians permitting its member cities and their e�lay�s to enj oy the advantages of this program; 1�h�tEAS, The U.S. Conference of Mayr�rs, as Plan Ac�nin.istrator, agi�s to hold harmless and indermLify the City, its appointed and elected officers and �r+-; cipatirig ec�layees fr�an any loss resultirx� fran The U. S. Canference of Mayc�rs or its Agent's failure to perform its duties and services pursuant to The U.S. Confer�zce of May�rs Program; I�7W, �4��iE, Tf� CrI'Y Q�I� OF 'IHE QTY OF PAIM DF�F�T DOFS i�t�Y RESOLVE AS PC7L�I�GN1S : l. The City Caulcil hex�by adopts The U.S. Conference of Mayr�rs Deferred Ca�ensatiori Program and its attendant investine.nt aptians and adds it to the City of Palm Desert Deferred Compensation Plan for v�luntary participation of all eligible �layees. 2. The Director of Finance i.s hereby authorized to execute for the City, individual participatian agreements with each said employee requesting same, and to act as the "Administrator" of the Plan representing the City, and t� execute such agre�ients and c�ontracts as are necessary to implement the Program. It is implicitly underst.00d that other t-han the incidental experLses of collecting and disburs3.ng the employee's deferrals and other mirnr administrative matters, that there is to be rn cost or contribution by the City to the Program. . RESOLUTION NO 88-107 RFS�VI'IQd PU. PASSID. APF�VID a�d AD�'PID by the City Cauncil of the City of Palm Desext oa� this �h day of August , 1988, by the follaaing vote, to wit: AYES: I�]UE5 : AHSF�fr: ABSTAINID: AZTEST : /fr Snyder, Wilson & Benson None Crites & Kelly None � RESOLUTION v0. 88-107 U. S. CONFERENCE OF MAYORS DEFERRED COMPENSATION PROGRAM THE DEFERRED COMPENSATION PLAN FOR PUBLIC EMPLOYEES PIAN DOCUMENT The �ITY QF PALM DESERT CALIFORNIA hereby accepts the U. S. Conference of Mayors Oeferred Compensation Program and adopts and estab- lishesthe CiTY OF PALM DESERT CALiFORNZA Deferred Compensation Plan for Public Employees, (hereinafter called the Plan). The Plan consists of the provisions set forth in this document, and is applicable to each public employee who elects to participate in the Plan. The Plan is effective as to each such public employee upon the date he becomes a"PARTICI- PANT" by signing and filing the Participation Agreement referred to herein with the Administrator. ARTICLE I Definitions 1.01. A definition of words and terms used in this plan is attached, entitled Exhibit "A", and by this reference is made a part of the Plan. � ARTICLE If Election to Defer Compensation 2.01. Compensation will be deferred fo� any calendar month only if an agreement providing for such defer- ral is entered into before the beginning of such month. 2.02. Upon signing the Pa�ticipation Agreement, the PARTICIPANT elects to participate in this Plan and consents to the EMPLOYER deferring the amount specified in the Participation Agreement from the PAR- TICIPANT's gross compensation for each pay period. The dollar amount deferred ("deferred amount") must equal at least $20 per month. 2.03. The PARTICIPANT may revoke his election to participate and may amend the amount of compensa- tion to be deferred or his investment specification by signing and fiting with the Administrator a written revocation or amendment on a form and in the procedural manner approved by the Administrator. Any such revocation or amendment of the amount of compensation to be deferred shall be effective prospectively only. Any amendment of the PARTICIPANT'S investment specification shall be effective prospectively on- ly. Any change in the PARTICIPANT'S investment spe¢i�ication shall be effective on a date consistent with the rules and specifications of the investment carrier. Changes in investment specifications may be made for both p�ior and future amounts deferred. 2.04. The origina{ election to participate shall be effective for pay periods commencing during the first month after the date on which the Participation Agreement is filed with the Administrator. Notice to ALL PARTICIPANTS to Read These Provisions Providing Defe�ral Limitations and "Catch•up" Deferrals U�der the Plan 2.05. Except as provided in section 2.06, the maximum amount that may be deferred under the Plan for the PARTICIPANT's taxabfe year shall not exceed the lesser of (a) $7,500 or (b) 33Ya% of the PARTICI- PANT'S includible compensatlon as provided in IRC of 1954 § 457. 2.06. For one or more of the PARTICIPANT'S last 3 taxable years ending before he attains normal retire- ment age under the Plan, the maximum deferraf shafl be the lesser of: (a) $15,000, reduced by any amount exciudabie under the PARTICIPANT'S gross income for the taxable year under IRC Section 403(b) on ac- APO-549 (4/86) � count of contributions ma� / the EMPLOYER; or (b) the sum of �e limitation established for pur- poses of § 2.05 of the Plan for the taxable year (determined without ��ard to this section), plus (ii) the limitation established for purposes of Section 2.05, beginning after December 31, 1978, during which the PARTICIPANT was e(igible to participate, less the amount of compensation deferred under the Pian for such prior taxable years, as provided in IRC Section 457. 2.07. In applying Section 2.05, an amount excluded on behalf of the PARTICIPANT during a taxable year under IRC § 403(b), including a custodial account described in § 403(b) (7), shall be treated as an amount deferred. ARTICLE III Accounts and Reports 3.01. THE EMPLOYER shall remit the deferred amounts to the Administrator or his designated agent. The Administrator shall have no duty to determine whether the funds paid to him by the EMPLOYER are correct, nor to collect or enforce such payment. 3.02. For convenience and to facilitate an orderly administration of the Plan, the Administrator shall main- tain a defer�ed account with respect to each PARTICIPANT. All assets of the Plan, including all deferred amounts, property and rights purchased with deferred amounts, and all income attributable to such de- ferred amounts, property or rights, shall be the exclusive property of the EMPLOYER and shall be subject to all the claims of creditors of the EMPLOYER, without protection or preference. 3.03. Upon receipt of deferred amounts by the underwriter of the designated investment option made pursuant to this Plan, the PARTICIPANT's deferred account shall be credited with the amount received. A written report of the status of the PARTICIPANT'S deferred account shall be furnished at least a�nually and within ninety (90) days after the end of each calendar year. 3.04. Within ninety (90) days after the end of the calendar year, the Administrator shall file with the EM- PLOYER a written report of the assets of the Plan, a schedule of all receipts and disbursements, and a report of all material transactions of the Plan during the preceding year. 3.05. The Administrator's records shall be open to inspection during the normai business hours by the EMPLOYER or any PARTICIPANT, or their designated representatives. 3.06. The rights of the PARTICIPANT created by this Plan shall be those of a general creditor of the EMPLOYER, and in an amount equal to fair market value of the deferred account maintained with respect to the PARTICIPANT. The PARTICIPANT acknowledges that his rights are no greater than those of a general creditor of the EMPLOYER and that in any suit for an accounting, to impose a constructive trust, or to recover any sum under this Plan, the PARTICIPANT'S rights are limited to those of a general creditor of the EMPLOYER. The EMPLOYER acknowledges that the Administrator is the agent of the EMPLOYER. . ARTICLE IV Investment of Deferred Amount 4.01. The deferred amount shall be delivered by the EMPLOYER to the Administrator or his designated agent for investment as designated by the Employer. 4.02. The EMPLOYER may use the Participant's investment specifications so as to determine the value of the deferred account maintained with respect to the PARTICIPANT as if the deferred amounts had been invested according to such specifications. The EMPLOYER shall be under no obligation to invest the de- ferred amount in such investment specification. All contracts and other evidences of the investments of all assets under this Plan shall be registered in the name of the EMPLOYER which shall be the owner thereof. 4.03. All interest, dividends, charges for premiums and administrative expenses, and changes in value due to market fluctuations applicable to each PARTICIPANT'S deferred account shall be credited or debited to the account as they occur. All reports to the PARTICIPANT shall be based on fair market value as of the reporiing date. ARTICLE V Benefits 5.01. Benefits shafl be paid in accordance with this Article. Benefits payabfe to the PARTICIPANT will be the equivalent of the total benefits that would have been created had the deferred amounts been in- vested as specified by the PARTICIPANT from time to time. Notwithstanding subsections (a) through (h) below, the payment of amounts deferred will commence not later than the later of: (i) 60 days after the close of the Plan Year in which the PARTICIPANT or former PARTICIPANT attains (or would have attained) normal retirement age; or (ii) 60 days after the close of the Plan Year in which the PARTICIPANT separates from service with the state. (a) Normal Retirement. Upon the PARTICIPANT, other than an INDEPENDENT CONTRACTOR, attain- ing normal retirement age, he may retire and receive the benefits provided under this Plan. Such benefits shall be paid in accordance with the payment option selected by the PARTICIPANT. (b) Early Retirement. The PARTICIPANT, other than an INDEPENDENT CONTRACTOR. may select early retirement in accordance with the Employer's Retirement System and receive the benefits provided under the Plan. Such benefits shall be paid in accordance with the payment option selected by the PARTICIPANT. (c) Late Retirement. If the PARTICIPANT, other than an INDEPENDENT CONTRACTOR, continues his employment with the EMPLOYER after attaining normal retirement age, all benefits payable under this Plan will be deferred (whether or not the PARTICIPANT continues to defer additional sums under this Plan) until the PARTICIPANT retires. At such time, such benefits shall be paid in accordance with the . payment option selected by the PARTICIPANT. No deferral or additional credits under this Plan may be made by the PARTICIPANT after the month in which he attains age seventy (70). (d) Separation from Service. If the PARTICIPANT separates from service with the EMPLOYER, benefits shall be paid in accordance with the payment options elected by the PARTICIPANT. An INDEPENDENT CONTRACTOR shall not be considered separated from service with the Employer and shall not receive any benefits hereunder unless (i) at least 12 months have expired since the date on which the last con- tract, pursuant to which the INDEPENDENT CONTRACTOR provided any services to the Employer, was terminated; and (ii) the INDEPENDENT CONTRACTOR has performed no services for the Employer during the 12-month period referred to herein either as an INDEPENDENT CONTRACTOR or employee. (e) Death. If the PARTICIPANT dies while employed with the Employer, or the PARTICIPANT dies before the benefits to which he is entitled under this Pian have been exhausted, the benefits payable under this Plan shall be paid to his designated Beneficiary. (f) Designated Beneficiary. The PARTICIPANT shall have the right to file with the Administrator a writ- ten Beneficiary or change of Beneficiary form designating the person or persons who shall receive the benefits payabte under this Plan in the event of the PARTICIPANT'S death. The form for this pur- pose shall be provided by the Administrator aad will have no effect until it is signed. filed with the Administrator by the PARTICIPANT, and accepted by th� Administrator. If the PARTICIPANT dies without having a Beneficiary form on file, the estate of the PARTICIPANT will be the presumed Beneficiary. The PARTICIPANT accepts and acknowledges that he has the burden for executing and filing with the Administrator a proper Beneficiary designation form. The Beneficiary shall have the right to elect the time and mode of payment of such benefits, subject to the limitations set forth in subsec- tion (h) hereof. Such election as to the time of payment shall be filed by the Beneficiary not later than thirty (30) days following the end of the Plan Year during which the PARTICIPANT died and shall be irrevocable. The Beneficiary may elect a distribution commencement date which is not earlier than 60 days following the PARTICIPANT'S death and not later than 60 days following the end of the Plan Year during which the PARTICIPANT would have attained Normal Retirement Age (or the Plan year in which the PARTICIPANT died, if later). An election concerning the mode of payment shall be filed by the Beneficiary at least thirty (30) days prior to the date elected for the commencement of benefits. Failure to file an election as to the time or manner of payment will result in the Administrator making a lump sum cash distribution to the Beneficiary within sixty (60) days following the close of the Plan Year in which the PARTICIPANT died. (g) Benefit elections. The PARTICIPANT shall, within thirty (30) days following the occurrence of an event described in subsections (a) to (d), choose the time at which distributions under the Plan are to com- mence by designating the mo��,.. and year during which the first payme � to be made. The PARTICI- PANT may elect a date not earlier than 60 days following the occurrence of the event described in subsections (a) to (d) and not later than 60 days following the end of the Plan year in which he attains Normal Retirement Age (or separates from service, if later). Such election shall be irrevocable. Failure to file an election with the administrator within the appropriate time period will result in the.administrator beginning distributions sixty (60) days after the end of the Plan year in which the PARTICIPANT at- tains Normal Retirement Age or separates from service, whichever is later. Not later than thirty (30� days prior to the date selected for commencement of benefits pursuant to the preceding paragraph, the PARTICIPANT shall elect the mode of payment based upon the options then available. Such election shall be irrevocable after the thirtieth day preceding the date of com- mencement of benefits. Failure to file an election with the administrator will result in the administrator electing an annuity payout for the PARTICIPANT providing for equal payments to the PARTICIPANT on a monthly basis for the remainder of the PARTICIPANT's life. (h) Payment and Settlement Options. Payment, method of payment, and settlement options are available as provided by each of the investment index options, provided, however, that benefits payable to a Beneficiary in the event of the death of a PARTICIPANT prior to the complete distribution of benefits to him shall, in all events, be completed during a period not in excess of (i) the life of the Beneficiary, if such Beneficiary is the surviving spouse of the PARTICIPANT, or (ii) 15 years, in all other circum- stances. In addition, no settlement option available to the PARTICIPANT shall provide benefits to Beneficiaries which are equal to or greater than one-half of the maximum benefit that would have been payable to the PARTICIPANT if no provision had been made for payment to a beneficiary (as determin- ed by the use of the expected return multiples in Treasury Regulation Section 1.72-9, or, in the case of payments under a contract issued by an insurance company, by the use of the rnortality tables of such company). 5.02. Notwithstanding any other provisions herein, in the event of an Unforeseeable Emergency, a PAR- TICIPANT may request the Administrator to pay benefits to him immediately. If the application for pay- ment is approved by the Administrator, payments shall be effected as of the first day of the month next following such approval. Benefits to be paid shall be limited strictly to that amount necessary to meet the Unforeseeable Emergency constituting financial hardship to the extent such Unforeseeable Emergen- cy is not relieved: (a) through reimbursement or compensation by insurance or otherwise; (b) by liquidation of the PARTICIPANT'S assets, to the extent the liquidation of such assets would not itself cause financial hardship; or (c) by cessation of deferrals under the Plan. Any remaining benefits shall be paid in accordance with Section 5.01 of this Plan. Foreseeable personal expenditures normally budgetable, such as a down payment for a home, the purchase of an automobile, college or other education expenses, etc., will not constitute an Unforeseeable Emergency. The decision of the Administrator concerning the payment of benefits under this section sha(I be final. ARTICLE VI Administration of Plan 6.01. The EMPLOYER may at any time amend, modify, or terminate this Plan with or without the consent of the PARTICIPANT (or any Beneficiary thereof) provided: (a) That all amendments shall become effective on the first day of the month following the giving of not less than forty-five (45) days prior notice of the amendment. Notice shall be deemed given when the amendment is posted in the office of the Administrator and the EMPLOYER. To the extent it is possi- ble to do so, the Administrator shall mait a copy of all amendments that become effective during the year to the PARTICIPANT with his annual report. No amendments shall deprive the PARTICIPANT of any of the benefits to which he is entitled under his Plan with respect to deferred amounts credited to his account prior to the effective date of the amendment; and (b) If the Plan is curtailed, terminated, or the acceptance of additional deferred amounts suspended per- manently, the Administrator shall nonetheless be responsible for the supervision of the payment of benefits resufting from amounts deferred prior to the amendment, modification, or termination in ac- cordance with Article V hereof. 6.02. Any companies that may issue any policies, contracts, or other investn�Gnt media used by the EM- PLOYER or specified by the PARTICIPANT, are not parties to this Plan and such companies shall have no responsibility or accountability to the PARTICIPANT or his Beneficiary with regard to the operation of this Plan. 6.03. Participation in this Plan by a public employee shall not be construed to give a contract of employ- ment to the PARTICIPANT or to alter or amend an existing employment contract of the PARTICIPANT, nor shall participation in this Plan be construed as affording to the PARTICIPANT any representation or guarantee regarding his continued employment. 6.04. The EMPl.OYER and the Administrator do not represent or guarantee that any particufar Federal or State income, payroll, personal property, or other tax consequence will occur because of the PARTICI- PANT'S participation in this Plan. The PARTICIPANT shall consult with his own representative regarding all questions of Federal or State income, payroll, personal property, or other tax consequences arising from participation in this Plan. 6.05. The Administrator shall have the power to appoint agents to act for and in the administration of this Plan and to select depositories for the assets of this Plan. 6.06. Whenever used herein, the masculine gender shall include the feminine and the singular and shafl include the plural unless the provisions of the contract specifically require a different construction. 6.07. The law of the State of the Employer shall apply in determining the construction and validity of this Plan. 6.Q8. The �ights of the PARTICIPANT under this Plan shall not be subject to the rights of creditors of the PARTICIPANT or any Beneficiary, and shall be exempt from execution, attachment, prior assignment, or any other judicial relief or order for the benefit of creditors or other third persons. 6.09. It is agreed that neither the PARTICIPANT nor his Beneficiary nor any other designee shall have any right to commute, sell, assign, transfer, or otherwise convey the right to receive any payments hereunder which payments and right thereto are expressly declared to be nonassignable and nontransferable. 6.10. This Plan, and any properly adopted amendment, 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. 6.11. This Plan and any properly adopted amendment shall be binding on the parties hereto and their respective heirs, administrators, trustees, successors, and assignees and on all designated Beneficiaries of the PAR7ICIPANT. * ARTICLE VII ' Notice to AlL PARTICIPANTS to Read These Provisions Providing Broad Powers and Absolute Safeguards to the Employer 7.01. The EMPLOYER, or its authorized agent, the Administrator, shalf be authorized to resolve any ques- tions of fact necessary to decide the PARTICIPANT'S right under this Plan and such decision shall be binding on the PARTICIPANT and any Beneficiary thereof. 7.02. The EMPtOYER, or its authorized agent, the Administrator, shall be authorized to construe the Plan and to resolve any ambiguity in the Plan. 7.03. The PARTICIPANT specifically agrees not to seek recovery against the EMPLOYER, the Ad- ministrator, or any other employee, contractee, or agent of the EMPLOYER or Administrator for any loss sustained by the PARTICIPANT or his Beneficiary for the non-performance of their duties, negfigence. or any other misconduct of the above named persons except that this paragraph shall not excuse fraud or a wrongful taking by any person. 7.04. The EMPLOYER, or its agents including the Administrator, if in doubt concerning the correctness of their action in making a payment of a benefit, may suspend the payment until satisfied as to the cor- rectness of the payment or the person to receive the payment or allo �e filing in any State court of com- petent jurisdiction, a suit in such form as they consider appropriate for a legal determination of the benefits to be paid and the persons to receive them. The EMPLOYER shall comply with the fi�ai orders of the court in any such suit and the PARTICIPANT, for himself and his Beneficiary, consents to be bound thereby insofar as it affects ihe benefits payable under this Plan or the method or manner af payment. 7.05. The EMPLOYER and its agents, including the Administrator, are hereby held harmless from all court costs and all claims for the attorneys' fees arising from any action brought by the PARTICIPANT or any Beneficiary thereof under ihis Plan or to enforce his rights under this Plan, including any amendments hereof. - � 7.06. The Administrator shall not be required to participate in any litigation concerning the Plan except upon written demand from the Employer. The Administrator may compromise, adjust or effect settlement of litigation when specifically instructed to do so by the EMPLOYER. IN WITNESS, WHE EOF. the undersigned has executed this Plan this day of /'� � , 19 �$_ . By . . EXHIBIT "A" DEFINITIONS The following terms shall, for purposes of this Plan and all Exhibits thereto, have the meaning set forth herein. � 1. ADMINISTRATOR means the person, department, agency, or organization appointed by the Employer to administer the Plan. 2. BENEFICIARY means the person properly designated by a Participant to receive the Participant's benefit. 3. COMPENSATION means all payments made by the Employer as remuneration for services rendered, inctudi�g salaries, fees, etc. 4. EMPLOYER means the �ITY oF P1� DESERT, CALIFORNIA or any of its agencies, departments, subdivisions or instrumentalities, for whom services are performed by a Participant. 5. INCLUDIBLE COMPENSATION means for the purposes of the limitations on deferral, compensation for services performed for the Employer which (taking into account amounts deferred under IRC Sec- tions 457 and 403 (b)) is currently includible in gross income. The amount of includible compensation shatl be determined without regard to any community property laws. 6. INDEPENDENT CONTRACTOR means any person receiving any type of compensation from the Em- ployer or any of its agencies, departments, subdivisions or instrumentalities for whom services are rendered pursuant to one or more written or oral contracts, if such person is not an employee. 7. IRC means the Internal Revenue Code of 1954, as amended. 8. NORMAL RETIREMENT AGE means the age at which the Employee is eligible to retire pursuant to the Employer's Retirement System, by virtue of age, length of service or both, without consent of the Employer and with the right to receive immediate retirement benefits without actuarial or similar reduc- tion because of retirement before some later specified age, but in no event later than age 70'/z. In the absence of a formal Employer's Retirement System, normal �etirement age shall mean 65. 9. PARTICIPANT means any individual who is eligible to defer compensation under the Plan and who participates under this Plan by signing the Partic,j�ation Agreement. 10. PARTICIPATION AGREEMENT means the Application to the Administrator to participate in the Plan which is also entitled "Consent to Compensation Change." 11. PLAN means the Deferred Compensation Plan for Public Employees as set forth in this document and as it may be amended from time to time. 12. PLAN YEAR means the calendar year in which the Plan becomes effective, and each succeeding calen- dar year during, the existence of this Plan. 13. SEPARATION �ROM SERViCE means separation from service within the meaning of IRC § 402(e)(4)(A)(iii) and on account of the Participant's death or retirement. 14. UNFORESEEABLE EMERGENCY means severe financial hardship to the Participant resulting from a sudden and unexpected illness or accident of the Participant or a dependent (as defined in IRC § 152(a)) of the Participant, loss of the Participant's property due to casualty, or other similar or extraordinary and unforeseeabte circumstances arising as a result of events beyond the control of the Participant.