HomeMy WebLinkAboutOrdinance - 2004-O0099 - Amending Ordinance 2001-000109; Deferred Compensation Plan For Employees - 09/16/2004I
First Reading
September 16,2004
ItemNo.16
Second Reading l
September 28, 2004
Item No. 24
ORDINANCE NO. 2004-ooo99
AN ORDINANCE AMENDING ORDINANCE NO. 2001-00109 OF THE CITY
OF LUBBOCK, WHICH ORDINANCE PROVIDED PARTICULARS OF A
i DEFERRED COMPENSATION PLAN FOR CITY EMPLOYEES, AND MODIFYING l SAID ORDINANCE TO CONFORM TO FEDERAL LAW.
I WHEREAS, the City Council heretofore established a Deferred Compensation
I Plan for City employees by enacting Ordinance No. 7809 as amended by Ordinance
18904, 9781, and 10121, and 2001-00109; and
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1 WHEREAS, final Treasury Regulations effective January 1, 2004, and recent
' Revenue Rulings require changes to the stmcture of and allow enhancements of the
benefits of the Deferred Compensation Plan; and
I WHEREAS, it is the desire of the City Council to amend the City's Defen·ed
I Compensation Plan to conform with changes in Federal Law; NOW THEREFORE:
I BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
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THAT Ordinance No. 2001-00109 of the City of Lubbock, BE and is hereby
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amended effective January 1, 2004, to read as fol1ows:
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DEFERRED COMPENSATION PLAN
I. INTRODUCTION
I The City of Lubbock, Texas, by virtue of the authority granted by V .T.C.A.,
Government Code §§690.001 et seq. 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
I permitting 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
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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.
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I Nothing contained in this Plan shall be deemed to constitute an employment
I contract or agreement for services between the Participating Employees and the City and
I 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 I of the employment relationship between Participating Employees and the City, this Plan
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being intended as part of each Participant's Compensation and as a Retirement
supplement.
This Plan shall, unless othenvise determined as provided by State and Federal
La\vs 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.
2.01.
2.02
DEFINITIONS
Automatic Distribution Date: Prior to January 1, 2002, "Automatic
Distribution Date means the 601h 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 1,
2002, ''Automatic Distribution Date" means April 1 of the calendar year
after the Plan Year the Participant attains age 70 ~ or if later, has a
Severance Event.
Beneficiary: The Beneficiary or Beneficiaries of certain benefits of the
Plan designated by the Participant in the Participation Agreement.
Nothing herein shall prevent the Participant from designating more than
one Beneficiary or primary and secondary Benefi.ciaries 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.
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
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.
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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) Nonnal Limitation: Except as provided in 2.05(b), the maximum
an10unt 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
eamings, 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 Fom1 1099-R as required
by the Internal Revenue Service.
(b) Catch-up Limitation:
( l) Catch up Contributions for Participants Age 50 and Over:
(2)
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
2.05(a), may enter into a Participation Agreement to make
elective deferrals in addition to those permitted by the
Normal Limitation in an amount not to exceed the lesser of
(1) the applicable dollar amount as defined in Section
414(v)(2)(B) of the Code, as adjusted for the cost of living
in accordance with Section 414(v)(2)(C) of the Code, or (2)
the excess (if any) of (I) the Participant's compensation a
(as defined in Section 415 (c)(3) of the Code) for the year,
over (ii) any other elective deferrals of the Participant for
such year which are made without regard to this Section
2.05(b) shall not, with respect to the year in which the
contribution is made, be subject to any otherwise applicable
limitation contained in Section 2.05(a) above, or be taken
into account in applying such limitation to other
contributions or benefits under the Plan or any other plan.
This Section 2.05(b)(l) shall not apply in any year to which
Section 2.05(b )(2) applies.
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 Deterred Compensation shall be the
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lesser of: (1) the 457 Catch-Up Dollar Limitation, or (2) the
sum of (i) the Nom1al Limitation for the taxable year, and
(ii) the Normal Limitation for each prior taxable year of the
Participant commencing after 1978 less the amount of the
Participant's DefeiTed Compensation for such prior taxable
years. A prior taxable year shall be taken into account
under the preceding sentence only if (x) the Participant was
eligible to participate in the Plan for such year (or in any
other eligible deferred compensation plan established under
Section 457(b) of the Code which is properly taken into
account pursuant to regulations under Section 457), and (y)
compensation (if any) defeiTed under the Plan (or such
other plan) was subject to the Normal 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 45 7(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)(1)(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)(l8) of
the Code.
2.06 Deferred Compensation Trust Fund: The fund in which Deferrals and
Investment Income of Participants are 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 employee's or fonner employee's surviving spouse and the
employee's or fonner employee's spouse or fom1er spouse who is the
alternate payee under a qualified domestic relations order, as defined in
Section 414(p) of the Code, are distributees with regard to the interest of
the spouse or fom1er spouse.
2.09 Dollar Limitation: The applicable dollar amount within the meaning of
Section 457(b)(2)(A) of the Code, as adjusted for the cost-of-living in
accordance with Section 457(e)(15) ofthe Code.
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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 4.01.
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 tmst
desc1ibed 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 govemmental 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 the balance to the credit of the
distributee, except that an eligible rollover distribution does not include:
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; any distribution to the extent such
distribution is required under Sections 401 (a) {9) and 457(d) (2) of the
Code; and 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 secmities)
2.13 Employee: An individual who is an employee of the City.
2.14 Family Member: A dependent as that tem1 is defined in Section 152(a) of
the Code.
2.15 Includible Compensation: That amount of a Participant's compensation
from the Employer for a taxable year that is attributable to services
perf01med for the Employer and that is includible in a Participant's federal
gross income as defined in Section 457( e)( 5) of the Code, reduced both by
amounts of Compensation deferred under this Plan or any other Plan or
atTangement pursuant to Section 457(b) of the Code or any other amount
excludable from gross income for federal income tax purposes. Includible
Compensation shall be determined without regard to any community
property laws.
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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: Nom1al Retirement Age determines the period
dming which a Participant may utilize the 457 Catch-Up Dollar Limitation
of Section 5.02(b) hereunder. Once a Participant has to any extent utilized
the catch-up limitation of Section 5.02(b), his Normal Retirement Age
may not be changed.
2.20
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 Employer's basic retirement plan covering
the Participant but in any case no earlier than age 65, and may
not be later than the date the Participant will attain age 70-l/2.
If a Participant continues employment after attaining age 70-
1/2, not having previously elected alternate Nonnal 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 Nonnal
Retirement Age may not be earlier than age 65 and may not be
later than age 70-l/2.
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 1/z.
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 detem1ined may participate in the Plan
and who has executed a Participation Agreement.
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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 severence pay may not be deferred.
2.22 Percentage Limitation: Prior to January 1, 2002, the Percentage
Limitation means 33 l/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 100 percent of the participant's
Includible Compensation for the taxable year, which will ordinarily be
equivalent to the lesser of the Dollar Limitation in effect for the taxable
year or 50 percent of the Participant's Normal Compensation.
2.23 Plan Administrator: The person responsible for administering the Plan,
who shall be the Benefits Coordinator of Human Resources 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 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.
2.27 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 Y2 , or the
calendar year in which Participant retires.
2.28 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.
2.29 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) ofthe Code. After
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December 31, 2001, 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 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
City Attorney. 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.
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(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 conceming 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)
(7)
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;
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 criteri.a 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.
( 1 0) Determine whether an excess deferral by a patiicipant 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
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(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 ofthe 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 QuaHfied Investment
Products, which document or documents 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 Jaw 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
DefetTals; and (2) such Employee's Deferrals must be transfe1Ted 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.
3.09. Administration Rules: The Committee may adopt rules and regulations
for the administration of this Plan; provided, however, no such rule or
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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 perfom1s services for the City for
which Compensation is paid and who executes a Pa1ticipation 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 eamed 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 A1ticle 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 defer Compensation with respect to Compensation not yet
earned. The revocation is effective and the Participant's full
Compensation wi11 be restored in the next applicable pay period
subsequent to the month such revocation is approved by the Plan
Administrator.
(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 retums to perform
services for the City alter a Separation from Service, may again
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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 Severence Event:
(a)
(b)
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. Notw·ithstanding 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 12,
whichever is later). Prior to January 1, 2002, an election made
pursuant to the preceding sentence shall not be valid unless such
election is made not less than 30 days prior to the date that the
distribution of a Participant's Account would otherwise
commence.
Additional Delay in Distribution: Prior to January l, 2002, the
Participant may elect to defer the commencement of distribution of
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5.02
(c)
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 1 of the year following the year of the Participant's
retirement or attainment of age 70 12, 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 1, 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 ofbenefits shall not be allowed.
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.
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.
(b) Subject to the restrictions 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:
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1)
2)
3)
4)
5)
6)
7)
Equal monthly, quarterly, semi-annual payments in an
amount chosen by the Participant, continuing until his or
her Account is exhausted;
One lump-sum payment;
Approximately equal monthly, quarterly, semi-annual or
annual payments, calculated to continue for a period certain
chosen by the Participant;
Annual Payments equal to the minimum distributions
required under Section 40 I ( 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;
Payments equal to payments made by the issuer of a
retirement annuity policy acquired by the Employer.
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;
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
(d)
Jru1uary.
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
65 or the date specified by the Participant until the Participant
reaches age 70-l/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.
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(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 $100. 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 restnctwns on choice of benefit contained in
Sections 5.01(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 tor 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)
(b)
(c)
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.
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.
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
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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
5.05
(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
Account shall be payable to the 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)
(c)
Tf 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, quruterly, 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.
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.
De Minimis Accounts: Notwithstanding the foregoing provisions of this
Article, prior to Jrumary I, 2002, if the value of a Participant's Account
does not exceed the dollar limit under Section 411 (a)( 11 )(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 distlibution 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.
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On or after January 1, 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 4ll(a)(ll)(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.
Vl. \VlTHDR~ W AI~S
6.01. Application 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 an1otmt
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, insumnce or other reimbursement, or liquidation of other assets to
the extent such liquidation would not itself cause severe financial
hardship. The approved amount shaH 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 determined by the C01mnittee.
6.02. Unforeseeable emergency defined: For purposes of this Plan, the term
11Unforeseeable 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 152(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
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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 detem1ination 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.
VII. LEAVE OF ABSENCE
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
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payments and 1ights thereto are expressly declared to be unassignable and
nontransferable.
8.02 Domestic Relations Orders:
(a)
(b)
Allowance of Transfers: To the extent required under a final
judgment, decree, or order (including approval of a property
settlement agreement) that (i) relates to the provision of child
support, alimony payments, or marital property rights and (ii) is
made pursuant to a state domestic relations law, any portion of a
Participant1s Account may be paid or set aside for payment to a
spouse, former spouse, child, or other dependent of the Participant.
Where necessary to carry out the terms of such an order, a separate
Account shall be established with respect to the spouse, former
spouse, or child who shall be entitled to make investment
selections with respect thereto in the same manner as the
Participant; any amount so set aside for a spouse, former spouse, or
child shall be paid out in a lump sum at the earliest date that
benefits may be paid to the Participant, unless the order directs a
different time or form of payment. 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 under 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.
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
d~emed 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
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Administrator from the obligation to comply with the judgment,
decree or order.
(c) 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 sha11 be
authorized to disclose infon:nation relating to the Participant's
Account to the Participant's spouse, former spouse, dependent or
child (including the legal representatives of the spouse, fonner
spouse, or child), or to a court.
TX. 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 nondeferred 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 tenns 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 pian 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
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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) ofthe Code.
10.03 Outgoing Rollovers: Notwithstanding any provision of the Plan to the
contrary that would otherwise limit a distributee's election tmder 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.
10.04 Treatment of Distributions of Amounts Previously Rolled Over From 401
(a) and 403(b) Plans and lRAs: 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 12, 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. II ,,
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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
compensation paid by the transferor employer shall be treated as if
it had been paid by the City.
(b) 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.
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 defmed in Section 415(n)(3)(A) ofthe 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)(l7) of the Code.
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XII. APPLICABLE LAW
This Plan shall be construed under the laws of the State ofTexas.
AND IT IS SO ORDERED.
Passed by City Council on first reading this 16th day of September
I 2004.
jl Passed by City Council on second reading this 28th day of September
I 2004.
I ATTEST:
Rcl1<f~ity Secretary
Scott Snider, Director of Human Resources
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I APPROVED AS TO FORM:
I ~~ ~ , ~ .c:;:;:::;:;.-c~~-. ~-
Linda Chamales, Senior Attorney
1 Office Practice Section
j I .JcityaUJiindaidcfcrr comp ord amend 2004 i 8/10104
Deferred Compensation Plan -2004 23