HomeMy WebLinkAboutCC RES 99-070I RESOLUTION NO. 99-70
2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN,
3 CALIFORNIA, ADOPTING THE DEFERRED COMPENSATION PLAN
FOR PUBLIC EMPLOYEES RESTATED PLAN DOCUMENT AS
l= ADOPTED BY THE UNITED STATES CONFERENCE OF MAYORS
5
6 WHEREAS, the City Council of the City of Tustin established a Deferred
Compensation Plan in compliance with Section 457 of the Internal Revenue Code' for the
7 employees of the City on March 1, 1976; and
8
WHEREAS, in October 1984 the City Council appointed Public Employees
9 Benefit Services Corporation as Third Party Administrator to the City's Deferred
Compensation Plan and adopted the United States Conference of Mayors' model
10 Plan Document; and
11
WHEREAS, the Deferred Compensation Plan as adopted was written to comply
]2 with the then current Internal Revenue Code and Rules and Regulations promulgated
thereunder; and
13
14: WHEREAS, over time the Internal Revenue Service and Congress have made
several changes in the Rules and Regulations governing Deferred Compensation Plans;
15 and
16 WHEREAS, the City Council has from time to time adopted various amendments
17 to the City's Deferred Compensation Plan to maintain compliance with the most current
Internal Revenue Rules and Regulations; and
18
WHEREAS, on November 16, 1998 the City Council amended the City's
19
Deferred Compensation Plan to designate the City as Trustee for the Plan and other
20 amendments in compliance with changes to Section 457 of the Internal Revenue Code
as incorporated within the Small Business Job Protection Act of 1996; and
21
22 WHEREAS, the City wishes to incorporate all prior amendments to the original
Plan Document into a single, Restated Plan Document;
23
NOW, THEREFORE, be it resolved that the Deferred Compensation Plan of the
24 City of Tustin is hereby amended by amending it in its entirety and adopting. and
25 accepting the United States Conference of Mayors' Restated Plan Document, a copy of
which is attached as Exhibit A and incorporated herein by this reference as though set
26 forth in full hereat, which contains the appropriate amendments for compliance with
current Rules and Regulations of Section 457 of the Internal Revenue Code.
27
28
APPROVED AND ADOPTED by the City Council of the City of Tustin on
September 7, 1999.
Mayor ley
ATTEST:
Pamela Stoker
~ity ~ie~k
UNITED STATES CONFERENCE OF MAYORS
DEFERRED COMPENSATION PROGRAM
THE DEFERRED COMPENSATION PLAN FOR PUBLIC EMPLOYEES
RESTATED PLAN DOCUMENT
FOR THE
CITY OF TUSTIN
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 "PARTICIPANT" by signing and filing with the
Administrator the Participation Agreement referred to herein.
ARTICLE I
Definitions
1.01. The following terms shall, for purposes of this PLAN, have the meaning set forth below.
(a) ADMINISTRATOR means the organization selected by the EMPLOYER to administer the PLAN.
(b) BENEFICIARY means the person propedy designated by a PARTICIPANT to
receive the PARTICI PANT'S benefit under this PLAN.
(c) COMPENSATION means all payments made by the EMPLOYER as
remuneration for services rendered, including salaries, fees, etc.
(d) EMPLOYER means the above referenced city or any of its .agencies,
departments, subdivisions or instrumentalities for which .services are performed
by a PARTICIPANT.
(e) INCLUDIBLE COMPENSATION means, for the purposes of the limitations on
deferrals, compensation for services performed for the EMPLOYER which is
currently includible. in gross income after giving effect to all provisions of the IRC.
The amount of INCLUDIBLE COMPENSATION shall be determined without
regard to any community property laws.
(f) INDEPENDENT CONTRACTOR means any person receiving any type of
compensation from the EMPLOYER or any of its agencies, department
subdivisions or instrumentalities for which services are rendered pursuant to one
or more written or oral contracts, if such person is not an employee.
(g) IRC means the Internal Revenue Code of 1986, as now in effect or as hereafter
amended.
(h) NORMAL RETIREMENT AGE means the age specified in writing by the
PARTICIPANT. If the EMPLOYER has an EMPLO~ER'S Retirement System,
the NORMAL RETIREMENT AGE specified by the PARTICIPANT must be an
age at Which the PARTICIPANT is eligible to retire pursuant to the EMPLOYER'S
basic pension PLAN, 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 reduction because of retirement before some later
specified age..If the EMPLOYER has no EMPLOYER'S Retirement System, the
NORMAL RETIREMENT AGE specified by the PARTICIPANT must be at least
60 years. In no event shall NORMAL RETIREMENT AGE be later than age 70
1/2.
(i) PARTICIPANT means any PUBLIC EMPLOYEE who is eligible to defer
Compensation under the PLAN and who participates under this PLAN by signing
the PARTICIPATION AGREEMENT.
(j) PARTICIPATION AGREEMENT means the application to the ADMINISTRATOR
to participate in the PLAN.
(k) 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.-
(I) PLAN YEAR means the calendar year in which. the PLAN becomes effective,
and each succeeding calendar year during the existence of this PLAN.
(m) PUBLIC EMPLOYEE means any person who receives any type of compensation
from the EMPLOYER for which services are rendered (including, but not limited
to, elected or appointed officials, salaried employees, and independent
contractors).
(n). SEPARATION FROM SERVICE means SEPARATION FROM SERVICE as
used in IRC Section 402(d)(4)(A)(iii), and on account of the PARTICIPANT'S
death or retirement. An Independent Contractor shall not be considered
Separated From Service with the EMPLOYER and shall not receive any benefits
hereunder unless (1) at least 12 months have expired since the date on which
the last contract, pursuant to which the Independent Contractor provided any
services to the EMPLOYER, was terminated, and (2) 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.
(o) 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 Section 152(a)) of the
PARTICIPANT, loss of the PARTICIPANT'S property due to casualty, or other
similar extraordinary and unforeseeable circumstances arising as a result of
events. beyond the control of the PARTICI PANT.
1.02. Whenever used herein, the masculine gender shall include the feminine and the
singular shall include the plural unless the provisions 'of the !PLAN specifically require a
different construction.-
ARTICLE II
Election to. Defer Compensation
2.01. The PARTICIPANT may elect to participate by signing the PARTICIPATION
AGREEMENT and consenting to a reduction of salary by the deferral amount specified in the
PARTICIPATION AGREEMENT. The amount of the reduction ("deferred amount") must equal
at least $20 per month.
2.02. The EMPLOYER shall commence the reduction no earlier than the first pay period
commencing during the first month after the date on which the PARTICIPATION
AGREEMENT is filed with the ADMINISTRATOR.
2.03 (a) The PARTICIPANT may revoke his election to participate and may amend the
amount of Compensation to be deferred by signing and filing with the ADMINISTRATOR a
written revocation or amendment on a form and in the procedural manner approved by the
ADMINISTRATOR. In addition, the PARTICIPANT may amend his investment specification in
the procedural manner approved by the ADMINISTRATOR. Any amendment which increases
the amount deferred for any pay period shall be effective only if an agreement providing for
such additional deferred amount is entered into before the beginning of the month in which the
pay period commences. Any revocation or amendment of the amount deferred shall be
effective prospectively only. Any change in the PARTICIPANT'S investment specification by
the PARTICIPANT, whether it applies to amounts previously deferred or amounts to be
deferred in the future, shall be effective prospectively only and shall be effective on a date
consistent with the rules and specifications of the investment carrier.
(b) After the death of the PARTICIPANT, his BENEFICIARY shall have the right to
amend the PARTICIPANT'S, or the BENEFICIARY's own, investment specification by signing
and filing with the ADMINISTRATOR a written amendment on a form and in the procedural
manner approved by the ADMINISTRATOR. Any change in an investment specification by a
BENEFICIARY shall be effective on a date consistent with the rules and specifications of the
investment carrier. The right of a BENEFICIARY to amend an investment specification shall
terminate on the last day available for an election concerning the mode of payment pursuant
to Section 8.03 below.
Notice to ALL PARTICIPANTS to'Read These Provisions Providing Deferral Limitations
and "Catch-up" Deferrals Under the PLAN.
2.04. Except as provided in Section 2,05, the maximum deferred amount under the PLAN for
the PARTICIPANT'S taxable year shall not exceed the lesser of (a) $7,500 (as adjusted by the
Secretary of the Treasury) or (b) 33 1/3% of the PARTICIPANT'S INCLUDIBLE
COMPENSATION as provided in IRC Section 457.
2.05. For one or more of the PARTICIPANT'S last 3 taxable years ending before the
attainment of NORMAL RETIREMENT AGE under the PLAN, the maximum deferral shall be
the lesser of: (a)$15,000 or (b) the limitation established for the taxable year under Section
2.04, plus the limitation established for purposes of Section 2.04 for each of the prior taxable
years beginning after December 31,1978, during which the PARTICIPANT was eligible to
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participate less the amount of COMPENSATION deferred under the PLAN for each of such
prior taxable years.
2.06. In applying the deferral limitations of Sections 2.04 and 2.05, any amounts excluded
from the PARTICIPANT'S gross income for the taxable year under IRC Sections 403(b),
402(e)(3), 402(h)(1 )(B) or (k) and deductible contributions to an organization described in IRC
Section 501 (c)(18), shall be treated as amounts deferred as provided in IRC Section 457(c).
2.07. Notwithstanding the preceding provisions of Article 11, a PARTICIPANT who is entitled
to reemployment pursuant to the terms of the Uniformed Services Employment and
Reemployment Act of 1994 (USERRA) may defer-an additional amount under the PLAN as
provided in that act for the years of his or her service in the uniformed services (as defined in
USERRA). Any such deferrals will not be subject to the limits set forth above in the year in
which deferred, but will be subject to the limits for the year to which such deferrals relate.
ARTICLE I!1
EMPLOYER Contributions
The EMPLOYER' may contribute to the PLAN for PARTICIPANTS. EMPLOYER contributions
shall vest at the time such contributions are made, For purposes of PLANS administering
Sections 2,04 and 2,05, EMPLOYER contributions shall apply toward the maximum deferral
limits in the PLAN YEAR that such contributions are made.
ARTICLE IV
Plan Transfers
4.01. If a PARTICIPANT terminates employment with the EMPLOYER and accepts
employment with another EMPLOYER which maintains an eligible deferred COMPENSATION
PLAN (as defined in IRC Section 457) and 'the new EMPLOYER's PLAN accepts transfers, the
PARTICIPANT may transfer his account balance from the PLAN to the PLAN maintained by
the new EMPLOYER.
4.02. Transfers from other eligible deferred COMPENSATION PLANS (as defined in IRC
Section 457) to the PLAN will be accepted at the PARTICIPANT'S request if such transfers
are in cash or non-annuity products currently offered under the PLAN. Any such transferred
amount shall not be subject to the limitations of Section 2.04, provided, however, that the
actual amount deferred during the calendar year under both PLANS shall be taken into
account in calculating the deferral limitation for that year. For purposes of determining the
limitation set forth in Section 2.05, years of eligibility to participate in the prior PLAN and
deferrals under that PLAN shall be taken into account.
ARTICLE V
Designation of Beneficiary
The PARTICIPANT shall have the right to file, with the ADMINISTRATOR, a written
BENEFICIARY or change of BENEFICIARY form designating the person or persons who shall
receive the benefits payable under this PLAN in the event of the PARTICIPANT'S death. The
form for this purpose shall be provided by the ADMINISTRATOR and will have no effect until it
is signed, filed with the ADMINISTRATOR by the PARTICIPANT, and accepted by the
ADMINISTRATOR. If the PARTICIPANT dies without having' a BENEFICIARY form on file, the
benefits will be paid to the PARTICIPANT'S estate. The PARTICIPANT accepts and
acknowledges that he has the burden for executing and filing with the ADMINISTRATOR a
proper BENEFICIARY designation form.
ARTICLE VI
Accounts and Reports
6.01. THE EMPLOYER shall remit the amounts deferred 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.
6.02. For convenience and to facilitate an orderly administration of the PLAN, the
ADMINISTRATOR shall maintain a deferred account with respect to each PARTICIPANT. A
written report of the status of the PARTICIPANT'S deferred account shall be furnished at least
annually and within thirty (30) days after the end of each calendar year to the PARTICIPANT,
6.03. Within thirty (30) days after the end of the calendar year, the ADMINISTRATOR shall file
with the EMPLOYER 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.
6.04. The ADMINISTRATOR's records shall be open to inspection during normal business
hours by the EMPLOYER or its designated representatives.
6.05. All reports to the PARTICIPANT shall be based on fair market value as of the reporting
date.
ARTICLE Vii
Investment of Deferred Amount
7.01. The deferred amounts shall be delivered by the EMPLOYER to the ADMINISTRATOR or
his designated agent for investment as designated by the EMPLOYER.
7.02. The EMPLOYER shall use the PARTICIPANT'S or BENEFICIARY'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; provided, however, that only upon approval from EMPLOYER and
ADMINISTRATOR may a PARTICIPANT allocate an amount greater than 25% of the total
deferrals of the PARTICIPANT to a life insurance option.
7.03. 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.
7.04. All assets of the PLAN, including all deferred amounts, property and rights purchased
with deferred amounts, and all income attributable to such deferred amounts, property or
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rights, shall (until made available to the PARTICIPANT or BENEFICIARY) be held in-a trust,
custodial account or annuity contract described in IRC Section 457(g) for the exclusive benefit
of the PARTICIPANTS and their BENEFICIARIES.
ARTICLE VIII
Benefits
8.01, Commencement of Distributions: The PARTICIPANT may elect the time at which
distributions under the PLAN are to commence by designating the month and year during
which the first distribution is to be made. The earliest distribution commencement date that
may be elected by the PARTICIPANT shall be the eadier of:
(a) thirty-one (31) days after ADMINISTRATOR is notified of PARTICIPANT'S
SEPARATION FROM SERVICE or the date the PARTICIPANT separates from
service; whichever is later; or
(b) . the date on which the PARTICIPANT attains age 70 1/2 or terminates deferrals
under this PLAN, whichever is later,
At least thirty (30) days prior to the date on which a PARTICIPANT is eligible for benefits to
commence under the PLAN, the EMPLOYER shall notify the
ADMINISTRATOR in writing, mailed to tfie ADMINISTRATOR'S Home Office, of the
PARTICI PANT'S eligibility,
The PARTICIPANT shall make such election no later than the earlier of:
(a) thirty (30) days following the date the ADMINISTRATOR is notified of
PARTICIPANT'S SEPARATION FROM SERVICE, or
(b) thirty (30) days following attainment of age 70.
Benefits payable to the PARTICIPANT will be the equivalent of the total benefits that would
have been created had the deferred amounts been invested as specified by the
PARTICIPANT.
The date elected for commencement of distributions ("the Elected Commencement Date")
shall be not later than the Mandatory Commencement Date, which shall be the later of:
(a) April 1 of the calendar year following the calendar year in which the
PARTICIPANT attains age 70 1/2; or
(b) April 1 of the calendar year following the calendar year in which the
PARTICIPANT separates from service with the EMPLOYER.
The Elected Commencement Date may be postponed, once, following the PARTICIPANT'S
SEPARATION FROM SERVICE, if the PARTICI PANT files an election designating a new date
for benefits to begin, prior to the original Elected Commencement Date, Failure to file an
election with the ADMINISTRATOR within the appropriate time period will result in the
ADMINISTRATOR beginning distributions one hundred and eighty (180) days following the
date the PARTICIPANT separated from service or the date the ADMINISTRATOR is notified of
PARTICIPANT'S SEPARATION FROM SERVICE, whichever is later.
8.02. Mode of Payment: Benefits shall be paid in accordance with the payment option elected
by the PARTICIPANT, Payment, method of payment, and settlement options are available as
provided by each of the available investment specifications. At least thirty (30) days prior to
the Elected or Mandatory Commencement Date, the PARTICIPANT shall elect the mode of
payment based upon the options then available. Such election shall be irrevocable after the
thirtieth (30th) day preceding the date on which benefits will commence, Failure to file an
election with the ADMINISTRATOR will result in:
a) If the PARTICIPANT'S account value is $10,000 or less, the ADMINISTRATOR
shall make a lump sum distribution to the PARTICIPANT.
b) If the PARTICIPANT'S account value is greater than $10,000, the
ADMINISTRATOR shall elect an annuity payout for the PARTICIPANT which
provides for monthly payments to the PARTICIPANT in the form of a life annuity
with a ten (10) year certain period,
8.03. Payments to BENEFICIARY: If the PARTICIPANT dies while employed with the
EMPLOYER, or the PARTICIPANT dies before the benefits to which he is entitled under this
PLAN have been exhausted, the benefit payable under this PLAN shall be paid to his
designated BENEFICIARY.
The BENEFICIARY shall have the right to elect the time and mode of payment of such
benefits, subject to the limitations set forth in this PLAN. Such election as to the time of
payment (distribution commencement date) shall be filed by the BENEFICIARY not later than
ninety (90) days following the PARTICIPANT'S death and. shall not be changed once the
election is made. The distribution commencement date must be at least one hundred twenty
(120) days following the PARTICIPANT'S death (subject to the December 31 commencement
date for surviving spouses as described later in this Section), and distributions to a
BENEFICIARY shall be completed within the applicable time period specified in the remaining
paragraphs of this Section. An election concerning the mode of payment shall be filed by the
BENEFICIARY either (I) at least thirty (30) days prior to the elected commencement date, or
(ii) within ninety (90) days following the PARTICIPANT'S death, whichever is later,
Failure to file an election as to the time of payment will result in the ADMINISTRATOR
beginning distributions to the BENEFICIARY one hundred twenty (120) days following the
PARTICIPANT'S death (subject to the December 31 commencement date for surviving
spouses as described later in this Section). Failure to file an election as to the manner of
payment will result in the ADMINISTRATOR making a lump sum cash distribution.
If the PARTICIPANT dies after the commencement of distributions, then. any amount not
distributed to the PARTICIPANT during his life shall be distributed to the BENEFICIARY at
least as rapidly as under the' method of distribution used by the PARTICIPANT at the time of
the PARTICIPANT'S death. In addition, if the PARTICIPANT dies prior to the commencement
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of distributions then the PARTICIPANT'S accoufit shall be distributed to the BENEFICIARY
within 5 years (or over the life or life expectancy of the BENEFICIARY, but not to exceed 15
years, if distributions commence within 1 year); provided, however, that if such BENEFICIARY
is the surviving spouse of the PARTICIPANT, then (1) such distributions need not commence
prior to December 31 of the calendar year in which the PARTICIPANT would have attained
age 70 1/2 (or such other date as may be permitted under applicable Treasury Regulations),
and (li) benefits payable to such spouse shall be completed during a period not in excess of
such spouse's life expectancy.
No settlement option available to the PARTICIPANT shall provide benefits to BENEFICIARIES
which are equal to or greater than 33 1/3% of the maximum benefit (or such other amount as
may be permitted under applicable Law or Treasury Regulations) that would have been
payable to the PARTICIPANT if no provision had been made for payment to a BENEFICIARY
(as determined 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 mortality tables of such company). In addition, any settlement option payable over a
period of more than one (1) year shall be made only in substantially nonincreasing amounts
paid not less frequently than annually.
8.04. UNFORSEEABLE EMFERGENCY: Notwithstanding any other provisions herein, in the
event of an UNFORSEEABLE EMERGENCY, a PARTICIPANT may request that benefits be
paid to him immediately; provided, however, that payment of any such benefits after the
Elected or Mandatory Commencement Date shall be subject to any limitations specified by an
investment carrier. If the application for payment is approved by the EMPLOYER or its
designee, payments shall be effected within forty-five (45) days of such approval, Benefits to
be paid shall be limited strictly to the amount necessary to meet the UNFORSEEABLE
EMERGENCY constituting financial hardship to the extent such UNFORSEEABLE
EMERGENCY 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.
Foreseeable personal expenditures normally budgetable, such as a down payment on a home
the purchase of an automobile, college or other educational expenses, etc,, will not constitute
an UNFORSEEABLE EMERGENCY, The decision of the EMPLOYER or its designee
concerning the payment of benefits under this Section shall be final.
8.05. In-service distribution - $3,500 or less: If the total amount payable to a PARTICIPANT
under the PLAN does not exceed the dollar limit under Section 411 (a)(11 )(A) of the Code, the
PARTICIPANT may elect to receive such amount before separation of service (or the PLAN
may distribute such amount without the PARTICIPANT'S consent) if
(a) no amount has been deferred under the PLAN with respect to such PARTICIPANT
during the two year period ending on the date of distribution, and
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(b) there has been no prior distribution under the PLAN to such PARTICIPANT to which
this Section applied,
ARTICLE IX
Administration of Plan
9.01. The EMPLOYER may at any time amend, modify, or terminate the PLAN without the
consent of the PARTICIPANT (:or any BENEFICIARY thereof), provided, however, that assets
of the PLAN shall be held forthe exclusive benefit of PARTICIPANTS and BENEFICIARIES at
all times. All amendments shall become effective forty five (45) days after the issuance of
notice of the amendments by the ADMINISTRATOR to the EMPLOYER. No amendments
shall deprive the PARTICIPANT of any of the benefits to which he is entitled under this PLAN
with respect to deferred amounts credited to his account prior to the effective date of the
amendment.
if the PLAN is curtailed, terminated, or the acceptance of additional deferred amounts
suspended permanently, the ADMINISTRATOR shall nonetheless be responsible for the
supervision of the payment of benefits resulting from amounts deferred. prior to the
amendment, modification, or termination in accordance with Article ViII hereof.
9.02. Any companies that may issue any policies, contracts, or other forms of investment
media used by the EMPLOYER 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,
9.03. Participation in this PLAN by a PUBLIC EMPLOYEE shall not be construed to give a
contract of employment to the PARTICIPANT or to alte.r 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.
9.04, The EMPLOYER and the ADMINISTRATOR do not represent or guarantee that any
particular Federal or State income, payroll, personal property, or other tax consequence will
occur because of the PARTICIPANT'S participation in this PLAN. The PARTICIPANT should
consult with his own representative regarding. all questions of Federal or State income, payroll,
personal. property, or other tax consequences adsing from participation in this PLAN.
9.05. 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.
9.06, The laws of the state of the EMPLOYER shall apply in determining the construction and
validity of this PLAN.
9.07, The rights 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,
9.08, Neither the PARTICIPANT nor his BENEFICIARY nor any other designee shall have any
right to commute, sell, assign, pledge, encumber, transfer, or otherwise convey the right to
receive any payments hereunder which payments and right thereto are expressly declared to'
be non-assignable and nontransferable.
9.09. This PLAN and any properly adopted amendment or modification 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.
9.10. This PLAN and any properly adopted amendment or modification shall be binding on the
parties hereto and their respective heirs, ADMINISTRATORs, trustees, successors; and
· assignees and on all BENEFICIARIES of the PARTICIPANT.
ARTICLE X
Notice to ALL PARTICIPANTS to Read These Provisions Providing Broad Powers and
Absolute Safeguards to the EMPLOYER
10.01. The EMPLOYER, the ADMINISTRATOR, or their respective agents shall be authorized
to resolve any questions of fact necessary to decide the PARTICIPANT'S ri~lht under this
PLAN and such decision shall be binding on the PARTICIPANT and any BENEFICIARY
thereof, provided, however, that assets of the PLAN shall be held for the exclusive:benefit of
PARTICIPANTS and BENEFICIARIES at all timeS,
10.02. The EMPLOYER, the ADMINISTRATOR, or their respective agents shall be authorized
to construe the PLAN and to resolve 'any ambiguity in the PLAN.
10.03. The PARTICIPANT'specifically agrees not to seek recovery against the EMPLOYER,
the ADMINISTRATOR 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, negligence, or any other misconduct of the above named
persons except that this paragraph shall not excuse fraud or wrongful taking by any person.
10.04. The EMPLOYER, the ADMINISTRATOR, or their respective agents, 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 correctness of the payment or the identity of the person to
receive the payment or allow the filing in any State court of competent 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 final 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 the benefits payable under this PLAN or the method or
manner of payment.
10.05, The EMPLOYER, the ADMINISTRATOR, and their respective agents 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 this PLAN or to enforce his
rights under this PLAN, including any amendments, modification or termination hereof.
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10.06, 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.
10.07, All assets of the PLAN, including all deferred amounts, property and rights purchased
with deferred amounts, and all income attributable to such deferred amounts, property or
rights, other than assets held in annuity contracts, will be held in a custodial account described
in IRC Section 457 (g). Such amounts will be held in a common fund with the assets of other
Section 457 PLANS, Such custodial account shall be held by the custodian thereof for the
exclusive benefit of the PARTICIPANTS and BENEFICIARIES of this and other Section 457
PLANS and the assets may not be diverted to any other use: The ADMINISTRATOR shall be
the agent of the EMPLOYER for purposes of providing direction to the custodian of the
custodial account from time to time as to the investment of the funds held in the account, the
transfer of assets to or from the account and all other matters, A copy of the Section 457
Custodial Account Agreement which describes the duties of the custodian is attached hereto
as Exhibit A and is incorporated herein by reference.
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RESOLUTION CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss
CITY OF TUSTIN )
RESOLUTION NO. 99-70
Pamela Stoker, City Clerk and ex-officio Clerk of the City Council of the City of Tustin,
California, does hereby certify that the whole number of the members of the City Council is
five; that the above and foregoing resolution was passed and adopted at a regular meeting of
the City Council held on the 7th day of September, 1999, by the following vote:
COUNCILMEMBER AYES: Worley, Thomas, Doyle, Potts, Saltarelli
COUNCILMEMBER NOES: None
COUNCILMEMBER ABSTAINED None
COUNCILMEMBER ABSENT: None
Pamela Stoker, City Clerk