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HomeMy WebLinkAboutOrdinance - 2007-O0109 - Amending Ordinance No. 2005-O0064 Deferred Compensation Plan; City Employees - 10/25/2007First Reading October 25, 2007 Item No. 5.2 ORDINANCE NO. 2007-00109 Second Reading November 8, 2007 Item No. 5.1 AN ORDINANCE AMENDING ORDINANCE NO. 2005-00064 OF THE CITY OF LUBBOCK, WHICH ORDINANCE PROVIDED PARTICULARS OF A DEFERRED COMPENSATION PLAN FOR CITY EMPLOYEES, AND MODIFYING SAID ORDINANCE TO CONFORM TO FEDERAL LAW. WHEREAS, the City Council heretofore established a Deferred Compensation Plan for City employees by enacting Ordinance No. 7809 as amended by Ordinance 8904, 9781, and 10121, 2001-00109, 2004-00099, and 2005-00064; and WHEREAS, it is the desire of the City Council to amend the City's Deferred Compensation Plan to conform to new Treasury Regulations; NOW THEREFORE: BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT Ordinance No. 2005-00064 of the City of Lubbock, BE and is hereby amended effective immediately, to read as follows: DEFERRED COMPENSATION PLAN I. INTRODUCTION The City of Lubbock, Texas, by virtue of the authority granted by V.T.C.A., Government Code §§690.001 et ~ and 26 U.S.C. §457, hereby establishes the City of Lubbock Employees Deferred Compensation Plan, hereinafter referred to as the "Plan", the purpose of which is to attract and retain certain individuals as Employees by pennitting them to enter into agreements with the City which will provide for monthly payments of deferred compensation on retirement, as well as death benefits in the event of death before or after retirement. The effective date of the start of this Plan shall be July 1, 1978, or as soon as practical thereafter. Nothing contained in this Plan shall be deemed to constitute an employment contract or agreement for services between the Participating Deferred Compensation Plan -2007 1 Employees and the City and nothing contained herein shall be deemed to give any such Employee a right to be retained in the employ of the City. Nothing herein shall be construed to modify the terms of the employment relationship between Participating Employees and the City, this Plan being intended as part of each Participant's Compensation and as a Retirement supplement. This Plan shall, unless otherwise determined as provided by State and Federal Laws governing Deferred Compensation Plans, be implemented and serviced by Qualified Vendors selected by the Plan Administrator or with whom the Plan Administrator has contracted for participation in the Plan subject to approval of the governing body of the City. II. DEFINITIONS 2.01. Automatic Distribution Date: Prior to January 1, 2002, "Automatic Distribution Date means the 60th day of the calendar year after the Plan Year of the Participant's Retirement or any other date permitted under the regulations promulgated under Code section 457. On and after January I, 2002, "Automatic Distribution Date" means April 1 of the calendar year after the Plan Year the Participant attains age 70 ½ or if later, April I of the calendar year following the year in which he retires or has a Severance Event. 2.02 Beneficiary: The person whom the Plan or a Participant designates and who is or may become entitled to a Participant's Account upon the Participant's death. Nothing herein shall prevent the Participant from designating more than one Beneficiary or primary and secondary Beneficiaries or changing the designation of a Beneficiary. If two or more or less than all designated Beneficiaries survive the Participant, payments shall be made equally to all such Beneficiaries, unless otherwise provided in the Beneficiary designation. Elections made by a Participant in the Participation Agreement shall be binding on any such Beneficiary or Beneficiaries except for the right of a Beneficiary as provided in Section 6.05. A beneficiary's right to (and the Plan Administrator's or Trustee's duty to provide to the Beneficiary) information or data concerning the Plan does not arise until the Beneficiary first becomes entitled to receive a benefit under the Plan. If no beneficiary is designated in the Participation Agreement, if the designated beneficiary predeceases the participant, or if the designated beneficiary does not survive the Participant for a period of fifteen (15) days, then the estate of the Participant shall be the beneficiary. If a married Participant resides in a community or marital property state, the Deferred Compensation Plan -2007 2 Participant shall be responsible for obtaining appropriate consent of his or her spouse in the event the Participant designates someone other than his or her spouse as beneficiary. 2.03 Code: The Internal Revenue Code of 1986, as amended. 2.04 Deferral: The amount of Compensation the receipt of which a Participating Employee has agreed to defer under the Plan. 2.05 Deferred Compensation: The amount of Compensation not yet earned, as designated in the Participation Agreement, which the Participant and the City mutually agree shall be deferred in accordance with the provisions of this Plan, subject to the following limitations: (a) Normal Limitation: Except as provided in 2.05(b), the maximum amount of Deferred Compensation for a Participant's taxable year, shall not exceed the lesser of the Dollar Limitation or the Percentage Limitation. Any excess deferrals, plus allocable net earnings, shall be distributed to the Participant as soon as administratively practicable after determination by the Plan Administrator that the amount is an excess deferral. Excess deferrals distributed shall be reported on Form I 099-R as required by the Internal Revenue Service. (b) Catch-up Limitation: (I) Catch up Contributions for Participants Age 50 and Over: A Participant who has attained the age of 50 before the close of the Plan Year, and with respect to whom no other elective deferrals may be made to the Plan for the Plan Year by reason of the Normal Limitation of Section 2.0S(a), may enter into a Participation Agreement to make elective deferrals in addition to those permitted by the Normal Limitation in accordance with, and subject to the limitations of Section 414(v) of the Code. This Section 2.05(b)(l) shall not apply in any year to which Section 2.05(b)(2) applies. A catch-up eligible Participant in each Taxable Year is entitled to the greater of the amount determined under Section 2.05(b)(l) or Section 2.05(b)(2) plus the Normal Limitation. eferred Compensation Plan -2007 3 (2) Last Three Years Catch-up Contribution: For each of the last three (3) taxable years for a Participant ending before his or her attainment of Normal Retirement Age, the maximum amount of Deferred Compensation shall be the lesser of: (1) Twice the dollar amount of the Normal Limitation, or (2) the Underutilized Limitation. (c) Other Plans: Not withstanding any provision of the Plan to the contrary, the amount excludible from a Participant's gross income under this Plan or any other eligible deferred compensation plan under Section 457(b) of the Code shall not exceed the limits set forth in Sections 457(b) and 414(v) of the Code. Prior to January 1, 2002, the limits under Section 457(b) of the Code described in the first sentence of this section shall be further reduced by any amount excluded from gross income under Sections 401 (k), 402(e)(3), 402(h)(l)(B), and 403(b) of the Code, or any amount with respect to which a deduction is allowable by reason of a contribution to an organization described in Section 501 ( c )(18) of the Code. 2.06 Deferred Compensation Trust Fund: The fund in which Deferrals and Investment Income of each Participant is temporarily held. 2.07 Direct Rollover: A direct rollover is a payment by the plan to the eligible retirement plan specified by the distributee 2.08 Distributee: A distributee includes an employee or former employee. In addition, the employee1s or former employee's surviving spouse and the employee's or former employee's spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in Section 4 I 4(p) of the Code, are distributees with regard to the interest of the spouse or former spouse. 2.09 Dollar Limitation: The applicable dollar amount within the meaning of Section 457(e)(l 5) of the Code, or (beginning January 1, 2006) such larger amount as the Commissioner of the Internal Revenue may prescribe. 2.10 Eligible Individual: Any individual Employee of the City who performs services for the City for which Compensation is paid and who meets the criteria set forth in Section 4.0 I. eferred Compensation Plan -2007 4 2.11 Eligible Retirement Plan: An eligible retirement plan is an individual retirement account described in Section 408(a) of the Code, an individual retirement annuity described in Section 408(b) of the Code, an annuity plan described in Sections 403(a) or 403(b) of the Code, a qualified trust described in Section 401 (a) of the Code, or an eligible deferred compensation plan described in Section 457(b) of the Code which is maintained by an eligible governmental employer described in Section 457(e)(l)(A) of the Code, that accepts the Distributee's eligible rollover distribution. 2.12 Eligible Rollover Distribution: An eligible rollover distribution is any distribution of all or any portion of a Participant's benefit under another eligible retirement plan, except that an eligible rollover distribution does not include: (i) any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life ( or life expectancy) of the distributee or the joint lives (or joint life expectancies) of the distributee and the distributee's designated beneficiary, or for a specified period of ten years or more; (ii) any distribution to the extent such distribution is required under Sections 401 (a) (9) and 457(d) (2) of the Code; or (iii) any distribution made as a result of an unforeseeable emergency of the employee. For purposes of distributions from other eligible retirement plans rolled over into this Plan, the term eligible rollover distribution shall not include the portion of any distribution that is not includible in gross income ( determined without regard to the exclusion for net unrealized appreciation with respect to employer securities). 2 .13 Employee: An individual who is an employee of the City. 2.14 Family Member: A dependent as that term is defined in Section l 52(a) of the Code. 2.15 Includible Compensation: That amount of a Participant's total compensation within the meaning of Code §415(c)(3) from the Employer for a taxable year that is attributable to services performed for the Employer. Includible Compensation includes Deferral Contributions under the Plan, compensation deferred under any other plan described in Code §457, and any amount excludible from the Employee's gross income under Code §§40l(k), 403(b), 125 or 132(f)(4) or any other amount excludable from gross income for federal income tax purposes. Includible Deferred Compensation Plan -2007 5 Compensation shall be determined without regard to any community property laws. 2.16 Investment Income: The amount earned from investment in a Qualified Investment Product of Compensation deferred under the Plan. 2.17 Investment Product: Includes life insurance policies, fixed or variable rate annuities, mutual funds, certificates of deposit, money market accounts and passbook savings accounts. 2.18 Normal Compensation: The total annual remuneration for employment or contracted services payable by the City that would be included in the federal gross income of the Participant but for the Participant's election to participate in the Plan. 2.19 Normal Retirement Age: Normal Retirement Age determines the period during which a Participant may utilize the 457 Catch-Up Dollar Limitation of Section 2.05(b) hereunder. In order to utilize the 457 Catch-Up Dollar Limitation of Section 2.05(b), Participant must specify the actual Normal Retirement Age which will apply to the Participant personally, when they are in range of the three years prior to Normal Retirement Age. Once a Participant has to any extent utilized the catch-up limitation of Section 2.05(b), his Normal Retirement Age may not be changed. a) General Rule: A Participant's alternate Normal Retirement Age may not be earlier than the earliest date that the Participant will become eligible to retire and receive unreduced retirement benefits under the rules and regulations of the Texas Municipal Retirement System, Employer's basic retirement plan covering the Participant, and may not be later than the date the Participant will attain age 70-1/2. If a Participant continues employment after attaining age 70-1/2, not having previously elected alternate Normal Retirement Age, the Participant's alternate Normal Retirement Age shall not be later than the mandatory retirement age, if any, established by the Employer, or the age at which the Participant actually has a Severance Event if the Employer has no mandatory retirement age. If the Participant will not become eligible to receive benefits under a basic retirement plan maintained by the Employer, the Participant's alternate Normal Retirement Age may not be earlier than age 65 and may not be later than age 70-1/2. Deferred Compensation Plan -2007 6 b) Special Rule for Qualified Police or Firefighters: Qualified police an firefighters as defined under Section 415(b)(2)(H)(ii)(I) may designate a Normal Retirement Age that is between age 40 and age 70 ½. 2.20 Participant or Participating Employee: An employee who has executed a Participation Agreement to participate in the Plan or an Eligible Individual who the Plan Administrator has determined may participate in the Plan and who has executed a Participation Agreement. 2.21. Participation Agreement: A written agreement between an Approved Vendor on behalf of the City and a Participant for the deferment of a portion of the Participant's Compensation through automatic payroll deductions. Said Agreement may be amended to allow for a deferral election for sick pay, vacation pay, or back pay that is not yet payable (subject to the maximum deferral limitations of Section 457 in the year of deferral) if the election is made during employment and before the beginning of the month when the compensation would have been payable. Amounts paid in the form of severance pay may not be deferred. 2.22 Percentage Limitation: Prior to January 1, 2002, the Percentage Limitation means 33 1/3 percent of the participant's Includible Compensation for the taxable year, which will ordinarily by equivalent to the lesser of the Dollar Limitation in effect for the taxable year or 25 percent of the Participant's Normal Compensation. After December 31, 2001, the Percentage Limitation means I 00 percent of the participant's Includible Compensation for the taxable year. 2.23 Plan Administrator: The person responsible for administering the Plan, who shall be the Risk Manager for the City. 2.24. Plan Year: The calendar year. 2.25 Qualified Investment Product: An Investment Product that a Plan Administrator has in writing approved to receive Deferrals and Investment Income. 2.26 Qualified Military Service: Service includes any qualified military service the Plan must credit for contributions and benefits in order to satisfy the crediting of Service requirements of Code §414(u). A Participant whose employment is interrupted by qualified military service under Code Deferred Compensation Plan -2007 7 §414(u) or who is on leave of absence for qualified military service under Code §414(u) may elect to make additional Salary Reduction Contributions upon resumption of employment with the Employer equal to the maximum Deferral Contributions that the Participant could have elected during that period if the Participant's employment with the Employer had continued (at the same level of Compensation) without the interruption of leave, reduced by the Deferral Contributions, if any, actually made for the Participant during the period of the interruption or leave. This right applies for five years following the resumption of employment (or if sooner, for a period equal to three times the period of the interruption or leave). The Plan shall apply limitations to all Deferral Contributions under this paragraph with respect to the year to which the Deferral Contribution relates. 2.27 Qualified Vendor: A Vendor recommended by the Oversight Committee and approved by the City Council or a vendor with whom the City has a current contract for participation in the Plan. 2.28 Required Beginning Date. Participant payments received from qualified retirement plans must begin no later than April 1 of the year that follows the later of the calendar year in which Participant reaches age 70 ½ , the calendar year in which Participant retires, or such other date under Code §40l(a)(9) by which minimum distributions must commence. 2.29 Retirement: The first date upon which both of the following shall have occurred with respect to a participant: Severance Event and attainment of age 65. 2.30 Severance Event: Prior to January 1,2002, severance of the Participant's employment with the City that constitutes a "separation from service" within the meaning of Section 402(e)(4)(D)(iii) of the Code. After December 31, 200 I , a Severance Event means a severance of the Participant's employment with the Employer within the meaning of Section 457(d)(I)(A)(ii) of the Code. In general, a Participant shall be deemed to have experienced a Severance Event for purposes of this Plan when, in accordance with the established practices of the City, the employment relationship is considered to have actually terminated. 2.30 Underutilized Limitation: A Participant's underutilized limitation is equal to the sum of: (i) the normal limitation for the Taxable Year, and (ii) the eferred Compensation Plan -2007 8 nonnal limitation for each of the prior Taxable Years of the Participant commencing after 1978 during which the Participant was eligible to participate in the Plan and the Participant's Deferral Contributions were subject to the normal limitation or any other Code §457(b) limit, less the amount of Deferral Contributions for each such prior Taxable Year excluding age SO catch-up contributions. 2.31 Vendor: A private entity that sells Investment Products. III. ADMINISTRATION 3.01. Administrator: This Plan shall be administered by a Plan Administrator subject to the supervision of an Oversight Committee as hereinafter provided. 3.02. Oversight Committee: The Oversight Committee shall consist of the City's Chief Financial Officer, the Director of Human Resources and the Risk Manager. The Committee shall meet as often as necessary to transact business but not less than quarterly. A quorum must be present to conduct business. The agenda for such meetings shall be prepared by the Plan Administrator and shall include all matters concerning the Plan which Plan Participants desire to submit for the Committee's consideration, including, but not limited to, requests from Participants for withdrawals due to unforeseeable emergencies. In addition, the Committee shall review all criteria and procedures developed by the Plan Administrator under Section 3.03 of this Plan and may also promulgate rules and regulations for the administration of the Plan provided they are not inconsistent with the provisions of this Plan or State and Federal Laws governing this Plan. 3.03. Responsibilities of Plan Administrator: Subject to the direction and supervision of the Oversight Committee, the Plan Administrator shall: (1) Submit a Participating Employee's Deferrals and Investment Income in the Qualified Investment Products designated by such Employee to a qualified vendor for investment; (2) Determine the minimum and maximum number of Vendors that may be Qualified Vendors for the Plan at any given time; (3) Execute necessary documents for the administration of Plan, subject to prior approval of the governing body of the City, if necessary. eferred Compensation Plan -2007 9 ( 4) Develop and implement criteria and procedures for evaluating a Vendor's application to become a Qualified Vendor, including developing and implementing criteria and procedures for evaluating a Qualified Vendor's Investment Products to determine whether those products are acceptable as Qualified Investment Products; (5) Develop and implement requirements for Qualified Vendors and their employees concerning disclosure, reporting, standards of conduct, solicitation, advertising, relationships with Participating Employees, the nature and quality of services provided to those Employees, and other matters; ( 6) Develop and implement procedures that allow a Participating Employee to designate a Beneficiary to receive such Employee's Deferrals and Investment Income if the Employee dies; (7) Develop and implement procedures for distributing Deferrals and Investment Income to a Participating Employee or such Employee's Beneficiary, as appropriate, because of the Employee's death, termination of employment, financial hardship, or other reason permissible under federal law; (8) Develop and implement criteria and procedures on any other matter the Plan Administrator considers appropriate for the operation of the Plan. (9) Change the amount of a Participant's Deferrals upon written notification from the Participant. (10) Determine whether an excess deferral by a participant has occurred and arrange for distribution to Participant. 3.04. Vendor Qualifications: A Plan Administrator may not approve a Vendor's participation, in the Plan if the Vendor is: (1) a state or national bank or savings and loan association, the deposits of which are not insured by the Federal Deposit Insurance Corporation; (2) a credit union whose deposits are not insured by the National Credit Union Administration Board or the Texas Share Guaranty Credit Union; or eferred Compensation Plan -2007 10 (3) an insurance company that: (a) is not a member of the Life, Accident, Health and Hospital Services Insurance Guaranty Association; or (b) is an impaired or insolvent insurer under V.A.T.S. Insurance Code. art. 21.28-D. 3.05. Certification by the Texas Department of Insurance: The Plan Administrator may request the Texas Department of Insurance to certify in writing whether an insurance company is prohibited from being approved as a Qualified Vendor under Section 3.03(3) of this Plan and the Plan Administrator may rely on the certification. 3.06. Approval of Vendor; Contract: After the Oversight Committee, with the concurrence of the City Council, approves a Vendor's request to become a Qualified Vendor, the Plan Administrator shall execute a written contract with the Vendor to participate in the Deferred Compensation Plan. Each Vendor may offer only Qualified Investment Products to Participating Employees, and each Qualified Vendor shall file with the Plan Administrator a form, statement or report setting forth the calculations of benefits peculiar to said Vendor's Qualified Investment Products, which document or docwnents above referred to are hereby incorporated as if fully set out herein. 3.07. Failure of Vendor to Satisfy Requirements: A Vendor may become and remain a Qualified Vendor only if the Vendor satisfies the requirements of state and federal law governing Deferred Compensation Plans and the Plan Administrator for participation in the Plan. If any Vendor fails to satisfy either of these requirements, the Plan Administrator shall immediately give to each Participating Employee affected a notice which states that: (1) the Vendor's Investment Products are ineligible to receive additional Deferrals; and (2) such Employee's Deferrals must be transferred from said Vendor to a Qualified Vendor. 3.08. Eligibility of Committee members; voting: Each member of the Committee shall be eligible to participate in the Plan but may not vote or otherwise participate in discretionary decisions relating to such member's own participation in the Plan. eferred Compensation Plan -2007 11 3.09. Administration Rules: The Committee may adopt rules and regulations for the administration of this Plan; provided, however, no such rule or regulation shall be contrary to State or Federal Law or any regulation adopted pursuant thereto. 3.10. Procedural Rules: The Committee may adopt rules and procedures for conducting business. IV. PARTICIPATION IN THE PLAN 4.01. Eligibility: Any Eligible Individual who performs services for the City for which Compensation is paid and who executes a Participation Agreement is eligible to participate in the Plan. 4.02. Enrollment in the Plan: (a) An Eligible Individual may become a Participant and agree to defer Compensation not yet earned by entering into a Participation Agreement prior to the first day of the following pay period in which it is to become effective after execution of the Participation Agreement. (b) At the time of entering into or modifying the Participation Agreement hereunder to defer Compensation or at the time of re- entry following a withdrawal under Article VII, a Participant must agree to defer a minimum amount of$260.00 annually. ( c) A Participant who defers Compensation may not modify such agreement to change the amount deferred except with respect to Compensation to be earned in a subsequent calendar month or except as provided in Article VII hereof with respect to withdrawals. Notice of such modification must be given prior to the biweekly payroll deadline for which such modification is to be effective. ( d) A Participant may at any time revoke the Participation Agreement to def er Compensation with respect to Compensation not yet earned. The revocation is effective and the Participant's full Compensation will be restored in the next applicable pay period subsequent to the month such revocation is approved by the Plan Administrator. eferred Compensation Plan -2007 12 ( e) A Participant who has withdrawn from the Plan, as set forth in Article VII, or who has revoked the Participation Agreement, as set forth in paragraph ( d) of this section, or who returns to perform services for the City after a Separation from Service, may again become a Participant in the Plan and agree to defer Compensation not yet earned by entering into a new Participation Agreement as provided in paragraph (a) of this section. ( f) Effective for Plan Years beginning after December 31, 2002, the City may elect to allow Participants to make voluntary employee contributions to a separate account or annuity established under the Plan that complies with the requirements of Code section 408( q) and any regulations promulgated thereunder. Such accounts or annuities shall meet the applicable requirements of Code sections 408 or 408A and shall be treated as an individual retirement plan that is not part of the Plan. (g) A Participant may amend the Participation Agreement to allow for a deferral election for sick pay, vacation pay, or back pay that is not yet payable (subject to the maximum deferral limitations of Section 457 in the year of deferral) if the election is made during employment and prior to the beginning of the month when the compensation would have been payable. Amounts paid in the form of severance pay may not be deferred. V. BENEFITS 5.01. Benefits and Election on Severance Event: (a) General rule: Except as otherwise provided in this Article VI, the distribution of a Participant's Account shall commence as of a Participant's Automatic Distribution Date, and the distribution of such benefits shall be made in accordance with one of the payment options described in Section 5.02. Notwithstanding the foregoing, but subject to the following paragraphs of this Section 5.01, the Participant may elect following a Severance Event to have the distribution of benefits commence on a fixed determinable date other than that described in the preceding sentence, but not later than the Required Beginning Date (April 1 of the year following the year of the Participant's Retirement or attainment of age 70 ½, whichever is later). Prior to January 1, 2002, an election made pursuant to the preceding sentence shall not be valid unless such Deferred Compensation Plan -2007 13 election is made not less than 30 days prior to the date that the distribution of a Participant's Account would otherwise commence. (b) Additional Delay in Distribution: Prior to January 1, 2002, the Participant may elect to defer the commencement of distribution of benefits to a fixed determinable date later than the date provided in Section 5.03(a), but not later than the Required Beginning Date (April I of the year following the year of the Participant's retirement or attainment of age 70 ½, whichever is later), provided however, that (a) such election is made after the 61 st day following the Participant's Severance Event and before commencement of distributions, (b) the Participant may make only one such election, and ( c) such election is made not less than 30 days prior to the date the distribution of a Participant's Account would otherwise commence. On or after January I, 2002, the Participant's right to change his or her election with respect to commencement of the distribution of benefits shall not be restrained by this Section 5.03. Notwithstanding the foregoing, the Administrator, in order to ensure the orderly administration of this provision, may establish a deadline after which such election to defer the commencement of distribution of benefits shall not be allowed. ( c) Required Distributions: By the Required Beginning Date, the Participant must either receive the entire interest in the plan, or begin receiving periodic distributions in annual amounts calculated to distribute Participant's entire interest 1) over Participant's life or life expectancy, 2) over the joint lives or joint life expectancies of Participant and a designated beneficiary, or 3) over a shorter period. After the starting year for periodic distributions, Participant must receive the minimum required distribution for each year by December 31 of that year. All distributions required under this section will be determined and made in accordance with the Treasury regulations under Code §401(a)(9). 5.02 General Benefit Terms: (a) Benefit payments to a Participant or Beneficiary shall be made according to the manner and method of payment as elected in the Participation Agreement, which election may be changed by a Participant or a Beneficiary, as appropriate, and as allowed by the Plan, at any time more than thirty (30) days prior to the commencement of such benefit payments pursuant to the Participation Agreement. eferred Compensation Plan -2007 14 (b) Subject to the restnct.J.ons on choice of benefit contained in Sections 5.02(c), 5.02(d), 5.04 and 5.05, the options available for selection by the Participant or Beneficiary as to the manner and method of distribution of the value of the Participant's Account are: 1) Equal monthly, quarterly, semi-annual payments in an amount chosen by the Participant, continuing until his or her Account is exhausted; 2) One lump-sum payment; 3) Approximately equal monthly, quarterly, semi-annual or annual payments, calculated to continue for a period certain chosen by the Participant; 4) Annual Payments equal to the minimum distributions required under Section 40l(a)(9) of the Code, including the incidental death benefit requirements of Section 40l(a)(9)(G), over the life expectancy of the Participant or over the life expectancies of the Participant and his or her Beneficiary; 5) Payments equal to payments made by the issuer of a retirement annuity policy acquired by the Employer. 6) A split distribution under which payments under options (1 ). (2). (3) or (5) commence or are made at the same time, as elected by the Participant under Section 5.03, provided that all payments commence ( or are made) by the latest benefit commencement date under Section 5.03; 7) Any other payment option elected by the Participant and agreed to by the City and Administrator. ( c) A Participant's selection of a payment option made after December 31, 1995, under Subsections (b)(l), (b)(3), or (b)(7) above may include the selection of an automatic annual cost-of-living increase. Such increase will be based on the rise in the Consumer Price Index for All Urban Consumers (CPI-U) from the third quarter of the last year in which a cost-of-living increase was provided to the third quarter of the current year. Any increase will be made in periodic payment checks beginning the following January. ( d) If, prior to January 1, 2002, a Participant made a timely election of a payment date but failed to specify a payment option or failed to make a timely election of both payment date and option, and as a result, was defaulted to benefit commencement at age 65, or such other date as the Participant may have specified, benefits shall be paid annually in the amount of $100 per year commencing at age eferred Compensation Plan -2007 15 65 or the date specified by the Participant until the Participant reaches age 70-1/2. When the Participant reaches age 70-1/2, payments shall be made in accordance with Code section 401(a)(9) and the regulations thereunder. ( e) Limitation on Options: No payment option may be selected by a Participant under subsections 5.0l(a)(l) or (3) unless the amount of any installment is not less than $ I 00. No payment option may be selected by a Participant unless it satisfies the requirements of Sections 401(a)(9) and 457(d)(2) of the Code, including that payments commencing before the death of the Participant shall satisfy the incidental death benefit requirements under Section 401(a)(9) (G). (f) Subject to the restrictions on choice of benefit contained in Sections 5.0l(d), 5.01 (e), 5.04 and 5.05, the options available for selection by the Participant or Beneficiary as to the manner and method of payment for Investment Products other than fixed or variable rate annuities shall be determined by Qualified Vendors; provided, however, such options shall not be contrary to State and Federal Laws governing this Plan. 5.03. Post-Retirement Death Benefits: (a) Should the Participant die after he/she has begun to receive benefits under a payment option, the remaining payments, if any, under the payment option shall continue until the Administrator receives notice of the Participant's death. Upon notification of the Participant's death, benefits shall be payable to the Participant's Beneficiary commencing not later than December 31 of the year following the year of the Participant's death, provided that the Beneficiary may elect to begin benefits earlier than that date. (b) If the Beneficiary has not attained age 80 at the time payments commence, he or she may elect to receive payments in a single lump-sum payment or in equal or approximately equal monthly, quarterly, semi-annual or annual payments continuing over a period not to exceed ten years from the first payment. The Beneficiary also may elect to receive a partial lump-sum payment followed by monthly, quarterly, semi-annual or annual installments, provided that all payments are made within a period of ten years from the initial payment. In the event that the Beneficiary is age 80 or over, the remaining balance in the Participant's account will be paid to the Beneficiary in a single lump sum. eferred Compensation Plan -2007 16 ( c) In the event that the Beneficiary dies before the payment of death benefits has commenced or been completed, the remaining value of the Participant's Account shall be paid to the estate of the Beneficiary in a lump sum. In the event that the Participant's estate is the Beneficiary, payment shall be made to the estate in a lump sum. 5.04 Pre-Retirement Death Benefits (a) Should the Participant die before he or she has begun to receive the benefits provided by Section 6.01, the value of the Participant's Accowtt shall be payable to the Beneficiary commencing not later than as follows, provided that the Beneficiary may elect to begin benefits earlier than that date. (1) If the Participant's surviving spouse is the Participant's sole designated Beneficiary, then, distributions to the surviving spouse shall begin by December 31 of the calendar year in which the Participant dies, or by December 31 of the calendar year in which the Participant would have attained age 70 ½, if later. (2) If the Participant's surviving spouse is not the Participant's sole designated Beneficiary, then distributions to the designated Beneficiary will begin by December 31 of the calendar year in which the Participant died. (b) If the Beneficiary has not attained age 80 at the time payments commence, he or she may elect to receive payments in a single lump-sum payment or in equal or approximately equal monthly, quarterly, semi-annual or annual payments continuing over a period not to exceed ten years from the first payment. The Beneficiary also may elect to receive a partial lump-sum payment followed by monthly, quarterly, semi-annual or annual installments, provided that all payments are made within a period of ten years from the initial payment. In the event that the Beneficiary is age 80 or over, the remaining balance in the participant's account will be paid to the Beneficiary in a single lump sum. ( c) In the event that the Beneficiary dies before the payment of death benefits has commenced or been completed, the remaining value of the Participant's Account shall be paid to the estate of the Beneficiary in a lump sum. In the event that the Participant's estate is the Beneficiary, payment shall be made to the estate in a lump sum. ef erred Compensation Plan -2007 17 estate is the Beneficiary, payment shall be made to the estate in a lump sum. 5.05 De Minimis Accounts: Notwithstanding the foregoing provisions of this Article, prior to January 1, 2002, if the value of a Participant's Account does not exceed the dollar limit under Section 4 ll(a)(ll)(A) of the Code as described in Section 457(e)(9)(A) of the Code and (a) no amount has been deferred under the Plan with respect to the Participant during the 2- year period ending on the date of the distribution and (b) there has been no prior distribution under the Plan to the Participant pursuant to this Section 6.05, the Participant may elect to receive or the Employer may involuntarily distribute the Participant's entire Account without the consent of the Participant. Such distribution shall be made in a lump sum. On or after January I, 2002, if the value of a Participant's Account is less than $1,000, the Participant's Account shall be paid to the Participant in a single lump sum distribution, provided that (a) no amount has been deferred under the Plan with respect to the Participant during the 2-year period ending on the date of the distribution and (b) there has been no prior distribution under the Plan to the Participant pursuant to this Section 6.05. If the value of the Participant's Account is at least $1,000 but not more than the dollar limit under Code Section 41 l(a)(l l)(A) and (a) no amount has been deferred under the Plan with respect to the Participant during the 2-year period ending on the date of the distribution and (b) there has been no prior distribution under the Plan to the Participant pursuant to this Section 7.07, the Participant may elect to receive his or her entire Account. Such distribution shall be made in a lump sum. VI. WITHDRAWALS 6.01. Aiwlication for Withdrawal: In the case of an unforeseeable emergency prior or subsequent to the commencement of benefit payments, a Participant may apply to the Committee for withdrawal of an amount reasonably necessary to satisfy the emergency need. If such application for withdrawal is approved by the Committee, the Participant shall be paid only such amount as the Committee deems necessary to meet the emergency need, but payment shall not be made to the extent that the financial hardship may be relieved through cessation of deferral under the Plan, insurance or other reimbursement, or liquidation of other assets to the extent such liquidation would not itself cause severe financial hardship. The approved amount shall be payable in a lump sum within thirty (30) days of such effective date or in some other manner consistent with the emergency need as detennined by the Committee. referred Compensation Plan -2007 18 6.02. Unforeseeable emergency defined: For purposes of this Plan, the term "unforeseeable emergency" means a severe financial hardship of the Participant or beneficiary resulting from an illness or accident of the Participant or beneficiary, the Participant or beneficiary's spouse, or the Participant or beneficiary's dependant (as defined in Section l 52(a) of the Code); loss of the Participant's or beneficiary's property due to casualty (including the need to rebuild a home following damage to a home not otherwise covered by homeowner's insurance, e.g., as a result of a natural disaster); or similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant or the beneficiary. For example, the imminent foreclosure of or eviction from the Participant's or beneficiary's primary residence may constitute an unforeseeable emergency. In addition, the need to pay for medical expenses, including nonrefundable deductibles, as well as for the cost of prescription drug medication, may constitute an unforeseeable emergency. Finally, the need to pay for the funeral expenses of a spouse or a dependent (as defined in section 152(a)) may also constitute an unforeseeable emergency. Except as otherwise specifically provided in this paragraph, the purchase of a home and the payment of college tuition shall not be considered unforeseeable emergencies. The determination as to whether such an unforeseeable emergency exists shall be based on relevant facts and circumstances of each individual case. In any case, a distribution on account of unforeseeable emergency may not be made to the extent that such emergency is or may be relieved through reimbursement or compensation from insurance or otherwise, by liquidation of the Participant's assets (to the extent the liquidation of such assets would not itself cause severe financial hardship), or by cessation of deferrals under the Plan. 6.03. Withdrawal amount: Distributions because of an unforeseeable emergency must be limited to the amount reasonably necessary to satisfy the emergency need (which may include any amounts necessary to pay any federal, state, or local income taxes or penalties reasonably anticipated to result from the distribution. In no event shall the amount of a withdrawal for an unforeseeable emergency exceed the amount of benefits which would have been available to the Participant at the time of withdrawal. Notwithstanding any other provision of this Plan, if a Participant makes a withdrawal hereunder, the value of benefits under the Plan shall be appropriately reduced to reflect such withdrawal, and the remainder of any benefits shall be payable in accordance with otherwise applicable provisions of the Plan. eferred Compensation Plan -2007 19 A Participant on an approved leave of absence with Compensation may continue to participate in the Plan subject to all the terms and conditions of the Plan; provided, further, Compensation may be deferred for such Participant if such Compensation continues while the Participant is on an approved leave of absence. VIII. NON-ASSIGNABILITY 8.01 In General: Except as provided in Section 8.02, neither the Participant nor Beneficiary shall have any right to commute, sell, assign, pledge, transfer or otherwise convey or encumber the right to receive any payments hereunder, which payments and rights thereto are expressly declared to be unassignable and nontransferable. 8.02 Qualified Domestic Relations Orders: (a) Time and Method of Payment This Plan specifically permits distribution to an alternate payee under a QDRO, as defined in Code §4 l 4(p) at any time, notwithstanding any contrary Plan provision and irrespective of whether the Participant has attained his/her earliest retirement age under the Plan. A distribution to an alternate payee prior to the Participant's attainment of earliest retirement age is available only if the QDRO specifies distribution at that time or permits an agreement between the Plan and the alternate Payee to authorize an earlier distribution. Nothing in this Section shall be construed to authorize any amount to be distributed under the Plan at a time or in a form that is not permitted wider Section 457(b) of the Code. Any payment made to a person pursuant to this Section shall be reduced by any required income tax withholding. (b) QDRO Procedures. The Plan Administrator must establish reasonable procedures to determine the qualified status of a domestic relations order. Upon receiving a domestic relations order, the Plan Administrator promptly will notify the Participant and any alternate payee named in the order, in writing of the receipt of the order and the Plan's procedures for determining the qualified status of the order. Within a reasonable period of time after receiving the domestic relations order, the Plan Administrator must determine the qualified status of the order and must notify the Participant and each alternate payee, in writing of the Plan Deferred Compensation Plan -2007 20 Administrator's determination. The Plan Administrator must provide notice under this paragraph by mailing to the individual's address specified in the domestic relations order ( c) Segregation of Account. To the extent it is not inconsistent with the provisions of the QDRO, the Plan Administrator may segregate or may direct the Trustee to segregate the QDRO amount on a segregated investment account. The Plan Administrator or Trustee will make any payments or distributions required under this Section 8.02 by separate benefit checks or other separate distribution to the alternate payee(s). (d) Release from Liability to Participant: The City's liability to pay benefits to a Participant shall be reduced to the extent that amounts have been paid or set aside for payment to a spouse, fonner spouse, or child pursuant to paragraph (a) of this Section. No such transfer shall be effectuated unless the City or Administrator has been provided with satisfactory evidence that the City and the Administrator are released from any further claim by the Participant with respect to such amounts. The Participant shall be deemed to have released the City and the Administrator from any claim with respect to such amounts, in any case in which (i) the City or Administrator has been served with legal process or otherwise joined in a proceeding relating to such a transfer, (ii) the Participant has been notified of the pendency of such proceeding in the manner prescribed by the law of the jurisdiction in which the proceeding is pending for service of process in such action or by mail from the Employer or Administrator to the Participant's last known mailing address, and (iii) the Participant fails to obtain an order of the court in the proceeding relieving the Employer or Administrator from the obligation to comply with the judgment, decree or order. ( e) Participation in Legal Proceedings: The City and Administrator shall not be obligated to defend against or set aside any judgment, decree, or order described in paragraph (a) or any legal order relating to the garnishment of a Participant's benefits, unless the full expense of such legal action is borne by the Participant. In the event that the Participant's action (or inaction) nonetheless causes the City or Administrator to incur such expense, the amount of the expense may be charged against the Participant's Account and thereby reduce the City's obligation to pay benefits to the Participant. In the course of any proceeding relating to divorce, separation, or child support, the City and Administrator shall be authorized to disclose information relating to the Participant's Account to the Participant's spouse, former spouse, dependent or Deferred Compensation Plan -2007 21 separation, or child support, the City and Administrator shall be authorized to disclose information relating to the Participant's Account to the Participant's spouse, former spouse, dependent or child (including the legal representatives of the spouse, former spouse, or child), or to a court. IX. AMENDMENT OR TERMINATION OF PLAN 9.01. Termination or amendment: The City may terminate or amend the provisions of this Plan at any time; provided, however, no termination or amendment shall affect the rights of a Participant or a Beneficiary to the receipt of benefits with respect to any Compensation deferred before the time of the termination or amendment. 9.02. Distribution upon termination: Upon termination of the Plan, the Participants in the Plan will be deemed to have withdrawn from the Plan as of the date of such termination. The full Compensation of all Participants will be thereupon restored on a non-deferred basis. The City shall not distribute Plan benefits at the time of such termination; the City shall rather retain all Deferrals and Investment Income and shall only pay or dispose of Plan benefits as otherwise provided in the Plan and according to the terms and conditions of the Plan. X. ELIGIBLE ROLLOVER DISTRIBUTIONS AND TRANSFERS 10.01 Effective Date: Sections 10.02 shall be effective January 1, 2004 10.02 Incoming Rollovers: An eligible rollover distribution may be accepted from an eligible retirement plan maintained by another employer and credited to a Participant's Account under the Plan. The City may require such documentation from the distributing plan as it deems necessary to effectuate the rollover in accordance with Section 402 of the Code and to confirm that such plan is an eligible retirement plan within the meaning of Section 402(c)(8)(B) of the Code. The Plan shall separately account for eligible rollover distributions from any eligible retirement plan that is not an eligible deferred compensation plan described in Section 457(b) of the Code maintained by an eligible governmental employer described in Section 457(e)(l)(A) of the Code. Deferred Compensation Plan -2007 22 10.03 Outgoing Rollovers: Notwithstanding any provision of the Plan to the contrary that would otherwise limit a Distributee's election under this Section, a Distributee may elect, at the time and in the manner prescribed by the Administrator, to have any portion of an eligible rollover distribution paid directly to an eligible retirement plan specified by the Distributee in a direct rollover. I 0.04 Treatment of Distributions of Amounts Previously Rolled Over From 401 (a) and 4O3(b) Plans and IRAs: For purposes of Section 72(t) of the Code, a distribution from this Plan shall be treated as a distribution from a qualified retirement plan described in Section 4974(c)(l) of the Code to the extent that such distribution is attributable to an amount transferred to an eligible deferred compensation plan from a qualified retirement plan (as defined in Section 4974(c) of the Code). Eligible rollover distributions separately accounted for in this Plan may be distributed at any time pursuant to the Participant's request. Any amounts rolled into a 457 plan from a qualified plan, 403(b) or IRA may be subject to the 10% premature distribution penalty if distributed from the Plan prior to age 59 ½, as determined by federal law. 10.05 Transfers: (a) Incoming Transfers: A transfer may be accepted from an eligible deferred compensation plan maintained by another employer and credited to a Participant's' Account under the Plan if (i) the Participant has had a Severance Event with that employer and become an Employee of the City, and (ii) the other employer's plan provides that such transfer will be made. The City may require such documentation from the predecessor plan as it deems necessary to effectuate the transfer in accordance with Section 457(e)(10) of the Code, to confirm that such plan is an eligible deferred compensation plan within the meaning of Section 457(b) of the Code, and to assure that transfers are provided for under such plan. The City may refuse to accept a transfer in the form of assets other than cash, unless the City and the Administrator agree to hold such other assets under the Plan. Any such transferred amount shall not be treated as a deferral subject to the limitations on deferrals above, except that for purposes of applying the limitations of Sections 2.05(a) and 2.05(b), and amount deferred during any taxable year under the plan from which the transfer is accepted shall be treated as if it has been deferred under this Plan during such taxable year and Deferred Compensation Plan -2007 23 (b) compensation paid by the transferor employer shall be treated as if it had been paid by the City. Outgoing Transfers: An amount may be transferred to an eligible deferred compensation plan maintained by another employer, and charged to a Participant's Account under this Plan, if (i) the Participant has a Severance Event with the City and becomes an employee of the other employer, (ii) the other employer's plan provides that such transfer will be accepted, and (iii) the Participant and the employers have signed such agreements as are necessary to assure that the City's liability to pay benefits to the Participant has been discharged and assumed by the other employer. The City may require such documentation from the other plan as it deems necessary to effectuate the transfer, to confirm that such plan is an eligible deferred compensation plan within the meaning of Section 457(b) of the Code, and to assure that transfers are provided for under such plan. Such transfers shall be made only under such circumstances as are permitted under Section 457 of the Code and the regulations thereunder, in particular Treas. Reg. §§1.457-I0(b)(2)-(6). 10.06 Trustee-to-Trustee Transfers to Purchase Permissive Service Credits: All or a portion of a Participant's Account may be transferred directly to the trustee of a defined benefit governmental plan (as defined in Section 414(d) of the Code) if such transfer is (A) for the purchase of permissive service credit (as defined in Section 415(n)(3)(A) of the Code) if permitted under such plan, or (B) a repayment to which Section 415 of the Code does not apply by reason of subsection (k)(3) thereof, within the meaning of Section 457(e)(l 7) of the Code. XII. APPLICABLE LAW This Plan shall be construed under the laws of the State of Texas. Deferred Compensation Plan -2007 24 AND IT IS SO ORDERED. Passed by City Council on first reading this 25th day of October , 2007. Passed by City Council on second reading this 8th day of November , 2007. ATTEST: :VEDAS TO CONTENT: ~ Leisa Hutcheson, Risk Manager APPROVED AS TO FORM: ~-c.., ~ ~~ ~----- Linda Chamales, Senior Attorney Office Practice Section L:/cityatt/linda/deferr comp ord amend-2007-redline Octo~r 16, 2007 Deferred Compensation Plan -2007 25 -