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HomeMy WebLinkAboutResolution - 98-23 RESOLUTION NO. = 3- 2 V A RESOLUTION OF THE CITY OF SAN JACINTO APPROVING AND ADOPTING A REVISED DEFERRED COMPENSATION PLAN WHEREAS, by Resolution No. 1931 adopted on February 19, 1991, the City of San Jacinto established a deferred compensation plan for it's employees and authorized execution of relevant Agreements with Lincoln Life; and ICMA Retirement Corporation. WHEREAS, federal legislation effective January 1, 1997, has necessitated changes to the City of San Jacinto deferred compensation plan which changes are included in the revised Deferred Compensation Plan and Trust document (the "Plan") attached hereto as Exhibit A. NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCILICITY MANAGER OF THE CITY OF SAN JACINTO AS HEREBY RESOLVED AS FOLLOWS: SECTION 1. The CITY COUNCILICITY MANAGER hereby amend and restates the Plan as set forth in Exhibit A. SECTION 2. The assets of the Plan shall be held in trust, with the Finance Director serving as trustee, for the exclusive benefit of the Plan participants and their beneficiaries, and the assets shall not be diverted to any other purpose. The CITY OF SAN JACINTO beneficial ownership of Plan assets held in the Lincoln Life and ICMA Retirement Corporation trusts shall be held for the further exclusive benefit of the Plan participants and their beneficiaries. Notwithstanding the foregoing, all Plan provisions creating trusts to hold all the assets of the pian for the cxclusive benefit of the Plan participants and Beneficiaries shall become effective once the appropriate body makes the necessary amendments permitting the establishment and maintenance of such trusts. SECTION 3. The Finance Director agrees to serve as trustee under the Plan. SECTION d. The Finance Director is authorized to execute all agreements necessary to effectuate the Resolution. SECTION 5. The City Councii/City Manager shall certify to the passage and adoption of this resolution; shall cause the same to be entered in the book of Resolutions of said City and shall make a record of the passage and adoption thereof in the records of the same was passed and adopted. Passed, approved and adopted on the 7 t h day of M a_L_ , 1998. AYES : Conner , Cornett , Good , Nilliams and Mayor Smedley CITY OF SAN, CiNTQ,4. n i �� ;` CA ' I Mayor City Manager r ATTEST: City Clerk Chapter 01 PLAN ESTABLISHED 01 Plan Established. As provided in Section 457 of the Internal Revenue Code of 1986, as amended (hereinafter referred to as the "Code"), City of San Jacinto (hereinafter referred to as the "Plan Sponsor") hereby establishes the City of San Jacinto Deferred Compensation Plan (hereinafter referred to as the "Plan") for the employees of r i t v if San Jacinto . Nothing contained in this Plan shall be deemed to constitute an employment agreement between the participant and the Plan Sponsor and nothing contained herein shall be deemed to give a participant any right to be retained in the emp'oy of the Plan Sponsor. Chapter 02 DEFINITIONS 02-1 Plan Sponsor. "Plan Sponsor' means City Of San Jacinto-, a governmentaf entity in the State of California as described in Section 1.457-2(c)(2) of the Treasury Regulations. 02-2 Compensation. "Compensation" means ali payments inside to a public employee by the Plan Sponsor as remuneration for services rendered. 02-3 Deferred Compensation. "Deferred Compensation" means the amount of the Participant's Compensation which the Participant and the Plan Sponsor shall mutually agree (prior to the date for which such Compensation is earned) will be deferred. 02-4 Accumulated Deferrals. "Accumulated Deferrals" mean Compensation deferred under the Plan, adjusted until the date of payment by income received increases or decreases in investment value, fees, and any prior distributions made. 02-5 Participant Agreement. "Participant Agreement" means the agreement executed and filed by an Eligible Employee with the Plan Sponsor pursuant to Chapter 04 of this Plan, in which the Eligible Employee elects to become a Participant in the Plan. 02-6 Separation from Service. "Separation (or Separates) from Service" means "separation from service" as a term interpreted for purposes of Section 402(e)(4)(A)(iii) of the Code and refers to the severance of the Participant's employment with the Plan Sponsor. A Participant will be deemed to have severed his or her employment as the daEe of Iiis or her last payroll. 02-7 Participant. "Participant" means any Eligible Employee of the Plan Sponsor who executes a Participant Agreement with the Plan Sponsor assenting to the provisions of this Plan, once the Participant Agreement has been approved. 02-8 Beneficiary. "beneficiary' means a beneficiary of a Participant, a Participant's estate, or any other person whose interest in the Plan is derived from the Participant. 02-9 Committee. 'Committee' means the Committee for the Deferred Compensation appointed by the Plan Sponsor. 02-10 Eligible Employee. "Eligible Employee" means any person who is employed by and receives any type of Compensation from the Plan Sponsor for whom services are rendered, and who is a full-time, regular part-time working half-time, or more, or career seasonal employee of.he Plan Sponsor. 02-11 "Normal Retirement Age" as used in the Plan, means the range of ages: (1) Ending not later than age seventy and one half (70 %). and (2) Beginning not earlier than the earliest age at which the Participant has the right to retire under a Plan Sponsor's pension plan for which the Participant is eligible with out consent of the Plan Sponsor and under which the Participant will receive immediate retirement benefits without actuarial adjustment due to retirement prior to some iater specified age in the Plan Sponsor's pension plan. Chapter 03 ADMINISTRATION 03-1 Administration By Committee. This Plan shail be administered by the Committee which s:iall represent the Plan Sponsor in all matters concerning the administration of the Plan_ 03-2 Committee To Adopt Rules & Regulations. The Committee shall have full power and authority to adopt rules and regulations for the administration of the Plan, and to interpret, alter, amend. or revoke any rules and regulations so adopted. 03-3 Committee Action Fair & Reasonable. Every action taken by the Committee shall be presumed to be fair and reasonable exercise of the authority vested in or the duties imposed upon it. The Committee and its individual members shall be deemed to have exercised reasonable care, diligence, and prudence and to have acted impartially as to all persons interested, unless the contrary be proven by affirmative evidence \r. 2 03-4 Committee to Maintain Records of Accounts. To facilitate an orderly administration of the Plan, the Committee shall maintain or cause to be maintained a deferred compensation ledger account with respect to each Participant. 03-5 Deferred Compensation Revolving Fund. All deferred compensation hereunder may be paid into a special fund created and maintained in accordance with Chapter 12 in the treasury of the Plan Sponsor called the"deferred compensation revolving fund". All costs of administration and staffing of the Plan, expenses of the Committee, and such other amounts determined of the Committee, as permitted by law, may be paid as necessary out of the deferred compensation revolving fund. Amounts in the deferred compensation revolving fund may be invested as directed by the Committee. All Accumulated Deferrals payable to Participants or their respective Beneficiary or Beneficiaries shall be paid from the deferred compensation revolving fund unless otherwise paid. Chapter 04 PARTICIPATION IN THE PLAN 04-1 Enrollment. Enrollment in the Plan. (1) An Eligible Employee may become a Participant by executing a Participant Agreement. Compensation will be deferred for any calendar month only if a Participant Agreement providing for such deferral is executed by the Participant and approved by the Committee or its designee before the beginning of the month. (2) In signing the Participation Agreement, the Participant elects to participate in this Plan and consents to the Plan Sponsor deferring the amount specified in the Participation Agreement from the Participant's gross Compensation for each pay period. The amount specified must equal to at least ten dollars ($10) per pay period and shall continue until changed cr revoked pursuant to Chapter 04-6 or 04-7 of this Plan 04-2 Plan to Plan Transfer. (1) Transfer To The Pfan: If a Participant was formerly a participant in an eligible state deferred compensation plan ( within the meaning of Section 457 of the Code and the regulations thereunder), and if such plan permits the direct transfer of the Participant's interest therein to the Plan, then the Plan shall accept assets representing the value of such interest provided, however, the Committee may require in its sole discretion that some or all of such interest be transferred in cash or its equivalent. Such amount shall be held, accounted for, administered, and otherwise treated in that same manner as compensation deferred by the Participant under the Plan except that: 3 (a) Only the amount, if any, transferred to the Plan which was deferred under the transferor plan in the taxable year when transfer occurs shall be treated as Compensation deferred under the Plan in such year. (b) No amount may be transferred to the Plan as of the time when such amount is paid or made available under the Section 457 plan of the Participant's prior employer. (2) Transfers From the Plan: The amounts credited to the account of a former Participant in the Plan may be transferred to another eligible deferred compensation plan (within the meaning of Section 457 of the Code and the regulations thereunder) and in which the former Participant currently participates, and if such plan provides for the acceptance of such amounts. The only rollovers or transfers allowable under Section 457 plan. If a Participant, prior to pay-out beginning, accepts employment with an entity who offers an eligible Section 457 plan, and the Participant becomes a participant in that plan, then Accumulated Deferrals may, at the election of the Participant and after written notice to the Committee, be transferred to the other plan, provided that plan provides for tha acceptance of such transfers, (3) Application for Transfer: If the conditions in subchapters f1) and (2) of this chapter are met and the Participant wishes to transfer his/her account, he/she shall complete any application form and/or other documents as may be required by the Committee (4) Administrative Rules: The Committee shall prescribe such rules consistent with the provisions of subchapters (1) and (2) of the Chanter concerning plan-to-plan transfers as in its sole judgment it deems desirable for the administration of the Plan. 04-3 Deferral Limitation. (1) Except as provided in Chapter 04-4, relating to catch-up, the maximum that may be deferred under the Plan for any taxable year of a Participant shall not exceed the lesser of seven thousand five hundred dollars ($7,500), as such amount is adjusted from time to time by the Secretary of Treasury pursuant to Code Section 457 (e)(15), or thirty-three and one-third percent (33 1/3 %) of -he Participant's includible compensation, each reduced, (a) By any amount excludable from the Participant's gross income for that taxable year under Section 403(b) of the Code. and 4 (b) Effective for taxable years beginning after December 31, 1988, by any l amount: (i) Excluded from gross income under Section 402(a)(8) or 402(h)(1)(8) of the Code (relating to a Participant's elective deferrals to simplified employee pensions) for that taxable year; (ii) For which a deduction is allowable for that taxable year by reason of a contribution to an organization described in Section 501( c)(18) of the Code (relating to pension trusts created before June 25, 1959, forming part of a plan for payment of benefits under a pension plan funded only by contributions of employees); or (iii) Which is deferred by a Participant under Section 401(k) of the Code (relating to qualified cash or deferred arrangement) during that taxable year; and (c } By any amount the Participant contributes to any other plan covered by Section 457 of the Code (relating to deferred compensation plan{s}) during the taxable year. (2) "Includible compensation" for purposes of the Chapter means includible compensation as defined in Section 457(e)(5) of the Code and as further defined by Treasury Regulation 1.457-2(e)(2) interpreting that section, and is determined ( without regard to community property laws. Includible compensation for a taxable 1. year includes only compensation from the Plan Sponsor that is attributable to services performed for the Plan Sponsor and that is includible in the Participant's gross income for the taxable year for federal income tax purposes. Accordingly, a Participant's includible compensation for a taxable year does not include an amount payable by the Plan Sponsor that is excludable from the Participant's gross income under: (a) Section 457 of the Code; (b) Section 403(b) of the Code (relating to annuity contracts purchase by non- profit organizations described in Section 501(c)(3) of the Code or public schools); (c) Section 105(d) of the Code (relating to wage continuation plans); (d) Section 911 of the Code (relating to citizens or residents of the United States living abroad); 5 (e) Section 402(a)(8) or 402(1 of the Code (relating to simplified employee pensions); (f) Section 501(c )(18) of the Code (relating to certain pension trusts), (g) Section 401(k) of the Code (relating to qualified cash or deferred arrangements): or (h) Section 408(p) of the Code (relating to SIMPLE Retirement Accounts). (3) In computing includible compensation, total gross compensation as shown on the entity's earnings statements must be reduced by: (a) Pre-tax contributions to retirement plans under Section 414(h) of the Cade; and (b) Any contributions to cafeteria plans under Section 125 of the Code (including those associated with such items as dependent care salary reduction plans), before excluding the items listed in subchapters (2)(a) through (h) of this Chapter. 04-4 Catch-up Provision. For one or more of the Participant's last three (3) taxable years ending before attaining Normal Retirement Age under the Plan, the maximum deferral shall be the lesser of: (1) Fifteen thousand dollars ($15,000) for the taxable year, reduced in the same manner as the seven thousand five hundred dollars ($7.500) limitation is reduced in Chapter 04-3, or (2) the sum of: (a) The limitations established for purposes of Chapter 04-3 of the Plan for the taxable year (determined without regard to this Chapter), plus (b) So much of the limitation established under Chapter 04-3 for taxable years before the taxable years has not theretofore been used under Chapter 04-3 or Chapter 04-4. A prior taxable year shall be taken into account only if: (i) It begins after December 31, 1978; 4 6 (ii) The Participant was eligible to participate in the Plan during all or any portion of the taxable year; and, r 4 (iii) Compensation deferred (if any) under the Plan during the taxable year was subject to a maximum limitation (as established under Chapter 04-3). A prior taxable year included a taxable year in which the Participant was eligible to participate in an eligible plan sponsored by another employer. In no event can the Participant elect to have the catch-up provision apply more than once whether or not the full catch-up had been utilized. This catch-up provision may not be used in the year in which the Participant attains age seventy and one-half, and may not be used in any year thereafter. 04-5 Committee May Disallow Deferral. The Participant acknowledges the right of the Committee to disallow deferral of Compensation under the Plan in excess of the limitations in Chapter 04-3 and 04-4. However, the Committee shall have no duty to assure that amounts deferred are in compliance with such limitations. 04-6 Modification Of Deferral Or Funding Option(s). A Participant may change his/her deferral or funding option(s) during an open enrollment period. Funding option(s) may not be changed more than four (4) times in any calendar year, or a fee may be charged. Changes in the amount of deferral must equal at least ten dollars (W) or more per funding option per month. (Beneficiaries entitled to receive Accumulated Deferrals may also change funding options not more than four (4) times per year.) Any combination of a decrease, a transfer, or a change in funding cption(s) effective the same date, shall be considered one change. A change (whether counted as such or not) shall be effective for any calendar month only if the Participant signs a new Participant Agreement and it is approved by the Committee or its designee before the beginning of that calendar month. All Participation Agreements indicating changes in funding option(s) must be filed with the Committee no later than fifteen (15) days prior to the established pay date for which the change will occur. The Committee reserves the right to defer the effective date of any change. 04-7 Suspension And Reinstatement Of Deferral. SUSPENSION. A Participant may at any time direct that deferrals under the Participant's Participation Agreement cease by completing the proper form and filing it with the Committee no later than the last day of the payroll period prior to the payroll period during which the deferrals are to cease; however, Accumulated Deferrals shall only be paid as provided in Chapter 04-9 through 04-14. REINSTATEMENT. .A Participant who has directed the cessation of deferrals may resume deferrals for any calendar month commencing no sooner than the month following the close of the next enrollment period by executing a new Participation Agreement to defer Compensation. The waiting period shall not apply to Participants who are on leave without pay as discussed in Chapter 07. 7 04-8 Investment Options Election. Each Participant shall designate on his/her Participation Agreement the investment options) in which he/she wishes to have deferrals �. invested. Such designation shall continue unless changed pursuant to Chapter 04-6 The investment option(s) shall be selected from those options made available for this purpose from time to time by the Plan Administrator, in its sole discretion The Plan Administrator may make available as investment options: (1) A fixed rate investment or pool of investments including deposits with a credit union savings and loan association, mutual savings bank and fixed annuities; (2) Specified mutual fund shares, shares of an investment company, or variable annuities, or, (3) Fixed cr variable life insurance, or other options permitted by law and selected by the Plan Administrator In the event that a selected option experiences a loss, the Participant's Accumulated Deferrals payable hereunder shall likewise reflect a loss for the period. 04-9 Designation Of Beneficiaries. Each Participant shall have the right to designate a Beneficiary cr Beneficiaries to receive Accumulated Deferrals in the event of Participant's death. If no such designation is in effect upon the death of a Participant, the Beneficiary shall be the surviving spouse, or if none, then the Beneficiary shall be the Participant's estate- A Participant may change his/her Beneficiary designation at any time by filing a change of beneficiary form with the Committee. A Participant may also change his/her Beneficiary designation by completing the beneficiary portion of a Participant Agreement form. The w.. Participant may name: (1) A designated organization or person (including without limitation his/her unborn or later adopted children.) If unborn or later adopted children are to be included, the designation must so indicate. The date of birth must be furnished for any living person who is named and who is under the age of eighteen. (2) His or her estate. (3) A trust which is in existence, or which is to be established under the Participant's last will. For an existing trust, the Participant must provide the name of the trust and the date it was established The Participant may name contingent Beneficiaries in addition to primary Beneficiaries Any named Beneficiary must have a tax LD. number or a social security number. � R 04-10 Distribution To Participate After Separation From Service. After Separation from Service, Accumulated Deferrals shall be paid to the Participant in one or more installments as / elected by the Participant pursuant to Chapter 04-12 through 04-14, 04-11 Distribution In The Event Of Death Of Participant Or Beneficiary. (1) Should the Participant die at any time, Accumulated Deferrals shall be paid to the Beneficiary or Beneficiaries designated by the Participant pursuant to Chapter 04-9 The Accumulated Deferrals shall be paid out as provided in Chapter 04-9 through 04-15. If no Beneficiary is designated as provided in the Participation Agreement, or if the Designated Beneficiary does not survive by a period of thirty (30) days, then a lump sum or series of payments shall be paid, in accordance with Chapter 04-9 through 04-13, to the surviving spouse, or if none, a lump sum shall be paid to the estate of the Participant. (2) In the event a Beneficiary becomes entitled to receive Accumulated Deferrals but dies prior to the distribution of the total Accumulated Deferrals, Accumulated Deferrals shall become payable to the Beneficiary's estate on the first day of the third month following the Beneficiary's death, unless Accumulated Deferrals are being paid in the form of an annuity, in which case the disposition of the remaining amount shall be determined by the annuity contract. Such annuity contracts shalt be issued pursuant to the rules set forth in Chapter 04-14. 04-12 Elections Regarding Distribution. Each Participant (or in the event of death, each Beneficiary other than an organization, estate, or trust) shall elect when his/her pay-out will begin and the pay-out period. { (1) Election Regarding Time of Payment. The election regarding the time when payment will begin shaJI be made when a Participant Separates from Service (or dies having Separated from Service and having previously elected when payment will begin.) Once made, the election regarding when pay-out will begin is irrevocable as to the Participant or Beneficiary making the election; provided, however, that after payments under the Plan have been made available to a Participant, but prior to any actual distribution to the Participant, the Participant may make a one-time only election to defer the commencement of payments. (2) Election Regarding When Payment Will Begin: (a) By a Participant who Separates from Service other than by reason of death, must be made not later than sixty (fi0) days after Separation from Service. Payment may begin on the date nearest the first day of the month in which an election is filed with the Committee on form(s) provided for that purpose, and payment must begin within the time prescribed by Chapter 04-13. 9 (b) By a Beneficiary, other than an organization estate. or trust where the Participant was not already receiving payments, payments must be made not later than sixty (60) days after the Participant's death_ Payment may begin on the dale nearest the first day of the month in which the election is filed with the Committee on forms provided for that purpose, and payment must begin within within the time prescribed by Chapter 04-13. (3) Election Regarding Method of Payment. The Participant (or Beneficiary other than an organization, estate, or trust) who makes an election regarding the date payment will begin, may also elect the period over which payments will be made. The pay-out period election may be made either at the time he,'she elects a beginning date for pay-out or at any time not later than sixty (60) days prior to the date pay-out is to begin. Once having made this election, the Participant (or Beneficiary, other than an organization, estate, or trust) may change the pay-out period election not later than sixty (60) days prior to the date pay-out is to begin. Such a Beneficiary may also make this election where the Participant was already receiving payments but, as provided in Chapter 04-13(3)(a), must receive distribution at least as rapidly as it was being distributed to the Participant. Such a Beneficiary must make the pay-out period election not later than sixty (60) days after the death of the Participant and pay-out will be suspended following the Participant's death until the Beneficiary either makes a pay-out period election or begins receiving payment as provided in subchapter (4) of this chapter. Provided, if the Participant was receiving pay-out in the form of an annuity contract, then the successor's right shall be limited by the terms of that contract (4) How Elections Are Made. A Participant or Beneficiary make elections allowed under this Chapter by completing and filing applicable payment request forms with the Committee. (5) Consequences In The Absence Of A Timely Election Regarding Time Of Payment. ,Absent a timely election regarding when pay-out is to begin, pay-out will begin on the fifteenth day of the month following the month in which the election period ends. and will be made, in a lump sum if the Accumulated Deferrals as of the end of the election period are less than twenty-five thousand dollars ($25,000) or, if the Accumulated Deferrals are twenty-five thousand dollars (525,000) or more, in the form of a lifetime annuity within a fifteen (15) year period or: (a) As may be necessary under the minimum pay-out requirements of Section 457 (d)(2)(B)( ) (1) of the Code, requiring amounts to be paid not later than as determined under Section 401(a)(9)(G) of the Code: or (b) As may be necessary under Section 457(d)(2)(B)( )(II) of the Code. requiring amounts not distributed to the Participant during his/her life to be distributed 1%W 10 at least as rapidly as they were being distributed as of the Participant's death. / (6) Effects Of Certain Employment Changes. Transfers from the Plan are allowed in the circumstances described in Chapter 04-2 (2). (7) Consequences In Absence Of A Timely Election Regarding Method Of Payment. In the absence of a timely election regarding the period of time over which payment will be made, payment will be made in the manner described in subchapter(5) of this Chapter. (8) Payment To An Organization, Estate, Or Trust. Any amount payable to an organization, estate, or trust shall be paid in a lump sum as prescribed in Chapter 04-13 (3) 04-13 Distribution Of Deferrals. (1) General Rule, Payment of Accumulated Deferrals will be made in at feast annual, substantially nonincreasing amounts. Payments are also sub}ect to the limitations in subchapters (2) through (5) of this Chapter. (2) Distribution To Participant. A Participant must either: (a) Receive his/her entire interest prior to the latest of: (i) The April I" immediately following the close of the Plan year in which the Participant attains age seventy and one-half; or (ii) The April 15' immediately following the close of the Plan year in which the Participant Separates from Service with the Plan Sponsor; or (b) Begin receiving his/her interest not later than the time specified in (a) of the Subchapter and receive it over a period not longer then either (i) The life of the Participant; (ii) The life of the Participant and a Beneficiary designated by the Participant; (iii) The life expectancy of the Participant; or (iv) The life expectancy of the Participant and a designated Beneficiary. 11 Payment must be sufficiently rapid to satisfy the requirements of Section 457 (d)(2)(B)(I)(I) and Section 401 (a)(9;(G) of the Code. Provided, that until tables are issued by the Secretary of the Treasury, if provision is made for the payment of a portion of the Accumulated Deferrals to low a Beneficiary, tre amount payable to the Participant actuarially must exceed two-thirds (213) of the maximum amount payable to the Participant had no provision been made for payments to the Beneficiary (determined as of the commencement of the distribution). Once payments to a Participant begin, the Participant may accelerate the payment schedule only in the event of an unforeseeable emergency (and subject to the provisions of Chapter 05 regarding such emergencies). (3) Distribution To Beneficiaries. (a) When distribution begins prior to the Participant's death, then pay-out must be made at least as rapidly as it was being made to the Participant. When the Beneficiary is an organization, estate, or trust, then payment will be payable in a lump sum. (b) When distribution does not begin prior to the Participant's death, and is to be made: (i) To an organization, estate, or trust, then payment will be payable in a lump sum on the first day of the third month following the Participant's death; (ii) To a iiving Beneficiary designated be the Participant other than the Participant's surviving spouse, and, by election, not to begin within rr. one (1) year of the Participant's death, then the payment must be made withiri five (5) years of the Participant's death, (iii) To a living Beneficiary designated by the Participant other than the Participant's surviving spouse, and, by election, beginning within one year of the Participant's death, then payment must be made within fifteen (15) years of the Participant's death; (iv) To the Participant's surviving spouse, whether as designated Beneficiary, or by default, then payment must begin prior to the April 15' immediately following the later of the close of the Plan year in which the Participant would have attained age seventy and one-half or, if later, the year in which the Participant Separated from Services and payment may be made over the lifetime of the surviving spouse or over a period not longer than the life expectancy of the surviving spouse. 12 (4) For purposes of this chapter, life expectancies will be computed by use of the expected return multiples in Treasury Regulation 1.72-9. When payment is being i made over the joint lives of the Participant and the Participant's surviving spouse, the life expectancy of the Participant and the Participant's surviving spouse may be calculated annually. (5) Notwithstanding anything in this Plan to the contrary, distributions from the Plan will be made in compliance with the minimum distribution rules of Section 457(d)(2) of the Code, and in compliance with Treasury Regulations issued under Section 401(a)(9) and 457 (d)(2) of the Code as applicable. 04-14 De Minimis Accounts (In-Service Distribution). Notwithstanding any other provision in the Plan, if (a) the total amount payable to a Participant under the Plan does not exceed $5,000, and (b) such Participant has not made any deferrals under the Plan during the preceding two-year period, such Participant's Accumulated Deferrals may be distributed to him, provided that no amounts have been previously distributed to him under this Chapter 04- 14. Chapter 05 UNFORESEEABLE EMERGENCY 05-1 Unforeseeable Emergency. Notwithstanding any other provisions in the Plan, in the event of ar. unforeseeable emergency, a Participant or a Beneficiary entitled to Accumulated Deferrals may request the Committee to pay out a portion of Accumulated Deferrals. If the Application for payment is approved by the Committee, payment will be made within sixty (60) days following such an approval. The amount paid shall be limited strictly to that amount reasonably necessary to satisfy the emergency need. For purposes of this Plan, an unforeseeable emergency shall be severe Lnanciai hardship to the Participant resulting from: (1) A sudden and unexpected illness or accident of the Participant or of a dependent (as defined in Section 152 (a) of the Code) of the Participant, (2) Loss of the Paribpant's property due to casualty, or (3) Other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant. The circumstance that will constitute as unforeseeable emergency will depend upon the facts of each case, but in any case, payment shall not be made to the extent that such hardship is or may be relieved (a) through reimbursement or compensation by insurance or otherwise; (b) by liquidation of the Participant's assets, to the extent liquidation of such assets would not itself cause severe financial hardship; or(c )by cessation of deferrals under the Plan Examples of what shall not be considered to the unforeseeable emergencies include the need to send a Participant's child to college or the desire to purchase a home. 13 Chapter 06 PARTICIPANT LOANS 06-1 Authorization of Loans. To the extent allowed by applicable law, the Plan Sponsor may authorize the Committee to make loans to Participants pursuant to the terms of this Chapter. Such loans shall be made on the written application of the Participant and on such terms and conditions as are set forth in this Chapter or by the Committee. In making such loans, the Committee shall follow uniform policies and shall not discriminate in favor of or against any Participant or group of Participants. 06-2 Maximum Loan Amount. In no event shall any loan made to a Participant pursuant to this Chapter be in an amount which shall cause the outstanding aggregate balance of all loans made to such Participant under this Plan exceed the lesser of: (1) $50,000, reduced by the excess (if any) of: (1) highest outstanding balance of loans from the Plan to the Participant during the one-year period ending on the day before the date on which the loan is made; over (J) the outstanding balance of loans frorn the Plan to the Participant or the Beneficiary on the dale on which the loan is made; or (2) One-half of the Participant's Accumulated Deferrals 06-3 Repayment of Loan. Each loan made under this Chapter shall mature and be payable, in full and with interest, within five years from the date such loan is made, unless the loan is used to acquire any dwelling unit that within a reasonable time (determined at the time the loan is made) will be used as the principal residence of the Participant. 06-4 Loan terms and Conditions. In addition to such rules and regulations as the Committee may adopt, all loans to Participants shall comply with the following terms and conditions: (1) Loans shall be available to all Participants on a reasonable equivalent basis (2) Loans shall bear interest at a reasonable rate to be fixed by the Committee based on interes, rates currently being charged by commercial lenders for similar loans. Tne Committee shall not discriminate among Participants in the manner of interest rates, but loans granted at different times may bear different interest rates based on prevailing rates at the time (3) Each loan shall be made against collateral, including the assignment of no more than one-half of the present value of the Participant's Accumulated Deferrals as security for the aggregate amount of all loans made to such Participal supported by the Participant's collateral promissory note for the amount of the loan, including interest. 14 (4) Payments of principal and interest must be made at least quarterly and such payments shall be sufficient to amortize the principal and interest payable pursuant to the loan on a substantially level basis. The Committee will require that loan repayments be made by payroll deduction. (5) A loan to a Participant or Beneficiary shall be considered an earmarked funding option for such Participant's Accumulated Deferrals. (6) No distribution shall be made to any Participant, or to a Beneficiary of any such Participant, unless and until all unpaid loans, including accrued interest thereon, have been satisfied. If a Participant terminates employment with the Plan Sponsor for any reason, the outstanding balance of all loans made to him shall become fully payable and, if not paid within thirty days, any unpaid balance shall be deducted from any benefit payable to the Participant of his Beneficiary. In the event of default in repayment of a loan or the bankruptcy of a Participant who has received a loan, the note will become immediately due and payable, foreclosure on the note and attachment of security will occur, the amount of the outstanding balance of the loan will be treated as a distribution to the Participant, and the defaulting Participant's Accumulated Deferrals will be reduced by the amount of the outstanding balance of the loan (or so much thereof as may be treated as may be treated as a distribution without violating the requirements of the Code). (7) The loan program under the Plan shall be administered by the Committee in a uniform and nondiscriminatory manner. The Committee shall establish procedures for loans, including procedures for applying for loans, guidelines governing the basis on which loans shall be approved, procedures for determining the appropriate interest rate, the types of collateral which will be accepted as security, any limitations on the types and amount of loans offered, and the events which will constitute and actions to be taken to collect loans in default. Chapter 47 LEAVE OF ABSENCE 07 Leave of Absence. If a Participant is on an approved leave of absence from the Plan Sponsor, participation in this Plan shall continue. Chapter08 AMENDMENT OR TERMINATION OF PLAN 08-1 Termination Of Plan. The Plan Sponsor or the Committee may at any time terminate the Plan. Upon such termination, Accumulated Deferrals will be paid pursuant to Chapter 04 of the Plan. All Participant's deferrals will cease. 15 �_ 08-2 Amendment Of Plan. The Committee may also amend the p•ovisions of this Plan at any time, provided, however, that no amendment shalt affect the rights of Participants or their Beneficiaries regarding Accumulated Deferrals at the time of the amendment, 08-3 Reasons For Amendment. The Plan Sponsor, as may be caused by treasury Regulations, Federal statue, State law or regulations, or operational experience, may from time to time find it necessary to change or amend this Plan. 08-4 Procedure For Amendment. If and when an amendment to the Plan is proposed, the Committee shall notify all Participants, in writing prior to any actual amendment to the Plan, that an amendment will be made, what the proposed amendment will be, why It is being done, and what the likely impact, if any, there will be on the Participants as a result of the proposed amendment. If the proposed Plan amendment will have any adverse affect or impact on any or all Participants, each Participant adversely affected shall have the right to modify hislher Participation Agreement as necessary to reduce or eliminate any foreseen adverse impact on his/her Accumulated Deferrals. No amendments to the Plan shall affect the amount of Accumulated Deferrals which at the time of such amendment shall have accrued for Participants or Beneficiaries. to the extent of any Compensation deferred before the time of amendment and net income thereon accrued to the date of amendment. Chapter 09 RELATIONSHIP TO OTHER PLANS 09 Retirement And Social Security Not Reduced. It is intended that, pursuant to Section 457 of the Code, the amount of Deferred Compensation will not be considered as current compensation for purposes of federal income taxation. Such amounts will, however, be included as compensation in determining benefits or rights under the Plan Sponsor's group insurance, other retirement plans and FICA. Payments under this Plan will supplement retirement and death benefits payable under the Plan Sponsor's groilp insurance and other retirement plans Chapter 10 TRANSFER IN LIEU OF CASH 10 Assets In Lieu Of Cash. Upon the occurrence of any event requiring the payment of Accumulated Deferrals under this plan, the Committee may, in its sole discretion, elect to honor a request from the Participant to substitute the transfer in kind and assignment of any asset which the Plan Sponsor has acquired, at fair market value. 116 Chapter 11 NON-ASSIGNABLITY CLAUSE 11 Accumulated Deferrals Not Assignable. It is agreed that neither the Participant, nor the Participant's Beneficiary or Beneficiaries, 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; and in the event of attempt to assign or transfer, the Plan Sponsor shall have no further liability hereunder, nor shall any unpaid Accumulated Deferrals be subject to attachment, garnishment or execution, or be transferable by operation of law in event of bankruptcy, dissolution of marriage, or insolvency, except to the extent otherwise required by law, Chapter 12 ASSETS 12 Plan Assets. All amounts of Compensation deferred under the Plan, all property and rights to property (including rights as a Beneficiary of a contract providing life insurance protection) purchased with such amounts, and all income attributed to such amounts, property or rights to property, including the deferred compensation revolving fund provided for in Chapter 03-5, shall be held in one or more trusts, and/or custodial accounts or insurance contracts described in section 401(f) of the Code, for exclusive benefit of Participants and their Beneficiaries. Chapter 13 PARTICIPATION BY COMMITTEE MEMBERS 13 Participation By Committee Members. Members of the Committee, who are otherwise eligible, may participate in the Plan under the same terms and conditions as apply to other Participants but an individual member shall not participate in any Committee action taken with respect to that members participation. Chapter 14 PLAN SPONSOR PARTICIPATION 14 Plan Sponsor Contributions. The Plan Sponsor may, pursuant to a changed or new Participation Agreement filed by a Participant as specified in Chapters 04-6 or 04-7, add additional Deferred Compensation for services to be rendered by the Participant to the Plan Sponsor during any calendar month, provided: (1) The Participant has elected to have such additional Compensation deferred, invested, and distributed, pursuant to this Plan, prior to the calendar month in which the Compensation is earned; and 17 (2) Such aad.tionai Deferred Compensation, when added to all ether Deferred Compensation under the Plan, does not exceed the maximum deferral permitted by ' Chapter 04 Chapter 15 INVESTMENT RESPONSIBILITY 15 Investment Responsibility. The Plan Sponsor may , but is not required to; invest funds held pursuant to Participation Agreements between Participant and the Plan Sponsor in accordance with requests made by each Participant. The Committee shall retain the right to approve or disapprove such investment requests. Any action by the Committee in investing funds, or approving of any such investment of funds, shall not be considered to be either an endorsement or guarantee of any investment, nor shall it be considered to attest to the financial soundness or the suitability of any funding option for the purpose of meeting future obligations. Chapter 16 COMMITTEE POWERS 16-1 Plan Prevails. In the event any form or other document used in administering this Plan, including but not limited to enrollment forms and marketing materials, conflict with the terms of the Plan, the terms of the Plan shall prevail. 16-2 Decision Binding. The Committee is authorized t determine any matters concerning the rights of any Participant or any other person under this Plan and such determination shall +ow be binding on all interested persons. 16-3 Committee To Interpret. The Committee is authorized to construe this Plan and resolve any ambiguity in the Plan. The Plan and any form or other document used in administering the Plan shall be interpreted, and this Plan shall be administered, so as to comply with Sections 457 of the Code and the Treasury Regulations promulgated thereunder. 16-4 Tax Status Not Guaranteed. The Committee does not represent or guarantee that any particular federal or state income, payroll, personal property, or other tax consequences will occur because of the Participant's participation in this Plan. The Participation should consul*.with the Participant's own representative regarding all questions of federal or state income, payroll. personal property or other tax consequences arising from participation in this Plan. 16-5 Committee May Require Court Order. The Committee or the Plan Sponsor, if in doubt concerning tine correctness of their action in making a payment of Accumulated Deferrals, may suspend payment until satisfied as to the correction of the payment or the person to receive the payment or to allow the filing in any state court of competent jurisdiction of a civil action seeking a determination of the amounts to be paid and the person to receive them. The Committee and 14 fir. the Plan Sponsor shall comply with the final orders in any such suit and the Participant, for the Participant and the Participant's Beneficiary or Beneficiaries, consents to be bound thereby Whenever payment of Accumulated Deferrals is suspended pursuant to this chapter, the time for a Participant or Beneficiary making any election under Chapter 04-12 shall not begin until amount(s) and person(s) entitled are determined either by written agreement of all parties concerned or by a court judgement that has become final. 16-6 Delegation of Authority. The Committee may delegate its functions to be performed under this Plan to any designee with legal authority to perform such functions. Chapter 17 APPLICABLE LAW 17 Plan to Conform to Federal and State Laws. The Plan is intended to be an eligible state deferred compensation plan within the meaning of Section 457 of the Code, and Treasury Regulation 1.457-2(a), and to comply with applicable state law, and shall be interpreted accordingly. Chapter 18 TRUST AGREEMENT 18-01 Acceptance. The F i n a n c e D i re c t o r, (the "Trustee"), or any successor or successors which accept appointment under this Chapter 18, accepts the Trust hereby created under the Plan and agrees to perform the obligations imposed. The Trustee's duties and r responsibilities stated hereunder shalt be performed in accordance with, and as necessary t limited to comply with, applicable law. 18-02 Receipt of Contributions. The Trustee shall be accountable to the Plan Sponsor for the funds contributed to it by the Plan Sponsor, but shall have no duty to see that the contributions received comply with provisions of the Plan. The trustee shall be neither obliged to collect any contributions from the Plan Sponsor, nor to see funds deposited with it are deposited according to the provisions of the Pfan. 18-03 Full Investment Powers. The Trustee shall have full discretion and authority with regard to the investment of any portion of the Trust fund that is not subject to direction of investment by the Plan Sponsor, Committee, or a Participant. The Trustee is authorized and empowered, but not by way of imitation, with following powers, rights, and dut es. (1) To invest any part or all of the Trust fund in any common or preferred stocks, open- end, or closed-end mutual funds, shares of an investment company, variable annuities, put and call options traded on a national exchange, United States retirement bonds, corporate bonds, debentures, convertible debentures, commercial paper, U.S. Treasury bills, U.S. Treasury notes, and other direct or indirect obligations of the United States Government or its agencies, improved or unimproved real estate situates in the 19 �- United States, limited partnerships, insurance contracts, mortgages, notes or other property of any kind, real or personal, and to buy or sell options on common stock on a nationally recognized options exchange with or without holding the underlying common stock, as a prudent man would do under like circumstances with due regard for the purposes of this Plan. (2) To retain in cash so much of the Trust fund as it may deem advisable to satisfy I liquidity needs of the Plan and to deposit any cash held in the Trust Fund in a bank account at reasonable interest; (3) To manage, sell, contract to sell, grant options to purchase, convey, exchange, transfer, abandon, improve, repair, insure, lease for any term even though commencing in the future or extending beyond the term of the Trust, and otherwise deal with all property, real or personal, in such manner, for such considerations and on such terms and conditions as the Trustee shall decide; (4) To credit and distribute the Trust as directed by the Committee. The Trustee shall not be obliged to inquire as to whether any payee or distributee is entitled to any payment or whether the distribution is proper or within the terms of the Plan, or as to the manner of making any payment or distribution The Trustee shall be accountable only to the Committee for any payment or distribution. The trustee shall be accountable only to the Committee for any payment or distribution made by it in good faith on the order or direction of the Committee; (5) To borrow money, to assume indebtedness, extend mortgages and encumber by mortgage or pledge; to invest in loans to a Participant in accordance with the loan policy established by the Committee (if such loans are to be permitted), provided any loan is adequately secured, bears a reasonable rate of interest, and provides for repayment within a specified time; (6) To compromise, contest, arbitrate or abandon claims and demands, in its discretion, (7) To have with respect to the Trust all rights of an individual owner, including the power to give proxies, to participate in any voting Trusts, mergers, consolidations or liquidations, and to exercise or sell stock subscriptions or conversion rights, (8) To hold any securities or other property in the name of Trustee or nominee, or in another form as it may deem best, with or without disclosing the Trust relationship, (9) To perform any and all other acts in its judgment necessary or appropriate for the proper advantages management, investment, and distribution of the Trust; 20 (10) To retain any `unds or Property subject to any dispute without liability of the payment of interest, and to decline, when reasonable to do so, to make payment or delivery of the funds or property until final adjudication is made by a court of competent jurisdiction; (11) To furnish any tax returns or portions thereof required to the Trustee; (12) To furnish to the Plan Sponsor and the Committee statements of accounts at least annually showing the condition of the Trust fund and all investments, receipts, disbursements and other transactions effected by the Trustee during the Plan Year covered by the statement and also stating the assets of the Trust held at the end of the Plan Year, The Committee may approve an account by written notice of approval delivered to the Trustee in writing within ninety (90) days from the date upon which the account statement was mailed or otherwise delivered to the Committee. The Committee agrees to use its best efforts to review account statements provided by the Trustee within ninety (90) days from the date the account statement was mailed or delivered to the Committee. Any matters objected to by the Committee shall be communicated to the Trustee in a writing signed by a member of the Committee, and the Trustee shall be given a reasonable opportunity to explain or adjust such matters. In no event shall the Trustee be liable for losses to the extent that the same could have been prevented by a prompt review (within 90 days) of the Trustee's written account by the Committee; and (13)To begin, maintain, or defend any litigation necessary in connection with the administration of the Plan, except that the Trustee shall not be obliged or required to do so unless indemnified to its satisfaction. 18-04 Records and Statements. The records of the Trustee pertaining to the Plan shall be l open to the inspection of the Plan Sponsor and the Committee at all reasonable times and may be audited from time to time by any person or persons as the Plan Sponsor or Committee may specify in writing. The Trustee shall furnish the Committee or the Plan Sponsor with whatever information relating to the Trust fund the Committee or the Plan Sponsor considers necessary. 18-05 Fees and Expenses from Fund. The Trustee shall receive reasonable annual compensation as may be agreed upon from time to time between the Plan Sponsor and the Trustee. The Trustee shall pay all expenses reasonably incurred by it or by the Plan Sponsor, the Committee, or other professional advisors or administrators in the administration of the Plan from the Trust fund unless the Plan Sponsor pays the expenses. The Committee shall not treat any fee or expense paid, directly or indirectly, by the Plan Sponsor as a Plan Sponsor contribution. 18-06 Distribution of Cash or Property. The Trustee may make distribution under the Plan in cash or property, or partly in each, at its fair market value as determined by the Trustee. 21 18-07 Resignation. The trustee may resign at any time as Trustee of the Plan by giving thirty (30) days written notice in advance to the Plan Sponsor and to the Committee. 18-08 Removal. The Plan Si by giving thirty (30) days written notice in advance to the Trustee, may remove any Trustee. 18-09 Interim Duties and Successor Trustee. In the event of the resignation or removal of a Trustee, the Plan sponsor shall appoint a successor Trustee if it intends to continue the Plan. During any period of the selection of a Trustee is pending, or during any period a Trustee is unable to serve for any reason, the remaining Trustee or Trustee(s), if any shall act as the sole Trustee cr as the only Trustee(s) of the Trust created under this Agreement If no Trustee remains during any paid period the selection of a Trustee is pending, the Plan Sponsor shall act as Trustee until a successor Trustee is selected. Each successor Trustee shall succeed to the title to the Trust vested in his predecessor by accepting in writing 6ils appointment as successor Trustee and filing the acceptance with the former Trustee and the Committee without the signing or filing of any further statement. The resigning or removed Trustee, upon receipt of acceptance in writing of the Trust by the successor Trustee, shall execute all documents and do all acts necessary to vest the title of record in any successor Trustee. Each successor Trustee shall have and enjoy all of the powers. both discretionary and ministerial, conferred under this Agreement upon his predecessor. No successor Trustee shall be personally liable for any act or failure to act of any predecessor Trustee. With the approval of the Plan Sponsor and the Committee, a successor Trustee, with respect to the Plan, may accept the account rendered and the property delivered to it by a predecessor Trustee without incurring any liability or responsibility for so doing- 18-10 Valuation of Trust. The Trustee shall value the Trust Fund as of the last day of each calendar year and at such other times as the Committee may direct to determine the fair market value of each Participant's Accumulated Deferrals, and the Trustee shall value the Trust fund on such other date(s) as directed by the Committee. 12 18-11 Exclusive Benefit. The Trust fund will be held for the exclusive benefit of Participants and their Beneficiaries. Except as otherwise provided in the Plan, it shall be impossible under any circumstances at any time for any part of the corpus or income of the Trust fund to be used for, or diverted to, purposes other than for the exclusive benefit of Participants and their Beneficiaries San Jacinto , CA May 7 , 1998 SIGNED AT DATE Jim Smedley , Mayor r RUSTEE I ATTEST ; Pamela L . Lee , City Clerk C 23