Loading...
1984-064-Approving Revised Deferred Compensation Plan; Approving A Change In Custodian Services For The Assessor Of Said Plan; And The Authorizing Town Manager To Execute The Appointment Of Successor CustodianRESOLUTION NO. 1984 -64 A RESOLUTION APPROVING REVISED DEFERRED COMPENSATION PLAN; APPROVING A CHANGE IN CUSTODIAN SERVICES FOR THE ASSESSOR OF SAID PLAN; AND AUTHORIZING TOWN MANAGER TO EXECUTE THE APPOINTMENT OF SUCCESSOR CUSTODIAN BE IT RESOLVED, and it is hereby resolved that the Town Council of the Town of Los Gatos does hereby approve the revised Town Deferred Compensation Plan (a copy of which is attached hereto); further approves the participation of Management employees in said plan; and further approves the Appointment of Suc- cessor Custodian for the assets of said plan from Central Bank to Hibernia Bank; and BE IT FURTHER RESOLVED that the Town Manager is hereby authorized and directed to execute the Appointment of Successor Custodian on behalf of the Town of Los Gatos. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los Gatos held on the 7th day of May 1984 by the following vote: AYES: COUNCILMEMBERS Joanne Benjamin, Eric D. Carlson, Terrence J. Daily, Brent N. Ventura and Mayor s J. Ferrito NOES: COUNCILMEMBERS None ABSTAIN: COUNCILMEMBERS None ABSENT: COUNCIILLMEMBERS None SIGNED: MAYOR OF THE OF LOS GA TO v ATTEST: CL K OF HE i OOF ( 0A ler DEFERRED COMPENSATION PLAN Section 1. Name: The name of this Plan is the Town of Los Gatos Deferred Compensation Plan, hereinafter referred to as the "Plan ". Section 2. Purpose: The primary purpose of the Plan is to attract and retain personnel by nermittin2 them to enter into agreements with the Employer which will provide for deferral of nayment of a Portion of their current Compensation until death, disahility, retirement, termination of employment, or other event as Provided herein, in accordance with the provisions of sections 53212 - 53214 of the Government Code of the State of California, and section 457 and other anolicable sections of the Internal Revenue Code. This amended Plan becomes effective Section 3. Definitions: For the Durposes of this Plan when used and capitalized herein the following words and phrases shall have the meaning set forth below. 3.1 "Employer" shall be the Town of Los Gatos. 3.2 "Eligible Emplovee," hereinafter referred to as "Employee" means anv officer or full -time employee of the Town of Los Gatos. Employee also means anv permanent Part -time employee working half -time or more. 3.3 "Participant" shall mean any Employee who fulfills the requirements under Section 4. 3.4 "Participation Agreement" shall mean the agreement executed and filed by an Employee with the Employer pursuant to Section 4, by which the Emplovee elects to become a Participant in the Plan. 3.5 "Compensation" shall mean the total of all amounts which would he Paid by the Employer to or for the benefit of an Employee (if he were not a Participant in the Plan) for services Performed during the Period that the Employee is a Participant including anv amounts that may be credited to the Participant's account in accordance with Section 8 of the Plan. Compensation shall be taken into account at its present value and its amount shall be determined without regard to any community property laws. 3.6 "Employment Period" means a Period from January 1 through December 31 of the same year, except that the first Employment Period of an Employee hired on any date other than January 1 shall he the period beginninq with the date of employment and ending on December 31 Of the same year. 3.7 "Custodian" means the bank or trust company.anpointed by the -1- ..Mn, .over tc 'ave c::st o° its assets held nur" nt to the terms oP the Pian. 3.8 "Normal Retirement Acre" means the date a Participant attains age 70 -1/2 or, at the election of the Participant, any earlier date that is no earlier than the earliest age at which the Participant has the right to retire under the Employer's basic pension plan. 3.9 "Includable Compensation" means Compensation for service performed for the Employer which (taking into account the provisions of section 403 (b) and section 457 of the Ineernal Revenue Code of 1954, as amended) is currently includahle in gross income for federal income tax purposes. 3.10 "Committee" means the Deferred Compensation Plan Committee. Section 4. Participation in the Plan: 4.1 (a) Each Emplovee may elect to become a Participant in the Plan and defer payment of Compensation not yet earned by executing a written Participation Agreement and filing it with the Emnloyer not later than sixty (50) days from the date of employment with the Town. Thereafter, 4.1 (h) Each eligible Employee may elect to become a Participant in the Plan and defer payment of Compensation not yet earned by executing a written Participation Agreement and filing it with the Employer nrior to the beginning of the month for which the deferral is to be applied during open enrollment periods. 4.1 (c) Modifications to existing Participation Agreements must he filed with the Employer prior to the beginning of the month for which the deferral is to be applied during open enrollment periods. 4.2 The amount of Comnensation which may be deferred hy_ a Participant is subject to the following limitations: 4.2 (a) At the time of entering into an agreement hereunder to defer Compensation or at the time of re -entry following a withdrawal or at the time a change in the amount to be deferred is elected, the maximum amount a Participant may defer during an Employment Period shall not exceed the lesser of $7,500 or 33 -1/3 percent of the Participant's Includable Compensation. The minimum amount a Participant may defer is $25.00 monthly. 4.2 (b) For one (1) or more of a Participant's last three (3) Employment Periods ending before the Participant attains Normal Retirement Age the maximum amount a Participant may defer during_ the Employment Period shall not exceed the lesser of $15,000 or the sum of the maximum amount which could be deferred for the Employment Period established in Section 4.2 (a) above, plus so much of such maximum amounts determined under Section 4.2 (a) for Employment Periods after the effective date of the Plan (only if it begins after December 31, 1978) but before the current employment year and in which the Participant was eligible to parzicinate in the Plan, less the amount -2- of Compensation as ha neretofore been used unn Section 4.2 (a), Provisions of this paragranh shall not apply more than once. 4.2 (c) In applying paragraphs 4.2 (a) and 4.2 (b), an amount deferred for a Participant during an Employment Period by an exempt organization under a tax sheltered annuity program shall be treated as an amount deferred for limitation purposes. Any Employee who is or becomes a Participant in this Plan and any other similar plan shall be solely responsible for any violation of this Section 4.2. 4.3 A Participation Agreement shall remain in effect until it is terminated, amended, superseded or modified. During each Employment Period, an existing Participation Agreement may be amended to effect subsequent deferrals in accordance with rules established by the Committee. The modification must be filed with the Employer prior to the beginning of the month for which the deferral is to be applied. 4.4 A Participant may terminate further deferral of Compensation under the Plan by filing with the Employer an executed notice of termination at least thirty (30) days prior to the effective date of termination. Once further deferral of Compensation is terminated, a Participant may rejoin the Plan in accordance with rules established by the Committee. No previously deferred amounts shall be payable to an Employee upon terminating further deferral of Compensation under the Plan unless otherwise due pursuant to Section 7 hereof. 4.5 A Participant may select, pursuant to Section 6, one or more investment objectives provided that the amount deferred for each objective equals or exceeds the minimum of not less than $25.00 monthly. Section 5. Period in which Employer shall Compensation as Agreement which Employer. Section 6. Deferral of Compensation: the Employee is a Particinant defer payment of such part of is specified by the Employee the Participant has executed Administration of the Plan: During each Employment in the Plan, the the Participant's in the Participation and filed with the 6.1 The Plan shall be administered by the Committee, which shall have the sole authority to enforce the Plan and shall be responsible for the operation of the Plan in accordance with its terms, and shall determine all questions arising out of the administration, interpretation and application of the Plan, such determinations shall be conclusive and binding on all persons. 6.2 The Employer shall establish a deferred compensation book account for each Participant to which shall be credited such Participant's deferred compensation at such times as it would have been payable but for the Participant's election to participate in the Plan. On executing a Participation Agreement, the Employee shall designate one or more investment objectives. The investment objective shall be used to measure the increase or decrease in value of the Participant's deferred compensation book account. A Participant may -3- chance his investmer:. �" ^_rive by filing a mod > - cation, and such investment objective 11 apply to (i) all amo _s credited to the Participant's deferrer compensation hook account after the date of filing the modification or (ii) any or all amounts credited to the Participant's deferred compensation hook account before and after the date of filing the modification but in such case only with respect to periods after the date the modification is filed. As used herein, "investment objective" means any investment specified from time to time by the Employer solely for the purpose of measuring the value of the Participant's deferred compensation book account and may include the following: mutual fund shares, interest deposits with a savings and loan association or banking institution, investments in debt and /or equity instruments, an annuity contract with an insurance company, or trust deeds. 6.3 Each Participant's deferred compensation book account shall he revalued monthly to reflect the earnings, gains and losses which would have been earned had the Particinant's account been invested in the medium specified in his designated investment objective. 6.4 The Employer may, but is not required to, set aside funds which may be held by the Custodian to meet the Employer's liabilities hereunder. All such 'unds shall at all times he a general asset of the Employer. 6.5 Neither this Plan nor any Participation Agreement nor any hook account shall he deemed to create a trust or custodial account on behalf of or for the benefit of any Participant of the Plan or such Participant's beneficiaries. No Participant in the Plan nor his beneficiaries shall have, by reason of the Plan, Participation Agreement or book account, any secured or preferred interest in or to any assets of the Employer and in the event of default of any payment due under the Plan, the Participant or his beneficiaries shall have the status of a general creditor of the Employer. The Employer shall have only a contractual obligation to pay the benefits due the Participant under the Plan. Section 7. Distribution of Benefits: 7.1 Commencement of Distribution: Distributions under the Plan shall commence no earlier than the date the Participant separates from service with the Employer (within the meaning of Internal Revenue Code section 1.457- 2(h)(2) and (3)) and no later that the later of (i) 60 days after the close of the Employment Period in which the Participant (or former Participant) attains his Normal Retirement Age or (ii) 60 days after the close of the Employment Period in which the Participant separates from service with the Employer. Subject to the approval of the Employer, a Participant shall, prior to his Normal Retirement Age, elect a time of commencement of his distribution from the Plan. If no such election or approval is made or obtained, rilyments shall be made in accordance with the instructions of the Employer. 7.2 Form and Duration of Distribution: Commencing with the date determined pursuant to Section 7.1, the full amount credited to a CIM Participant's book ac int (re�lectinq investme earnings, gains or losses), less any Federal or Sate income tax required to be withheld, shall be distributed provided, however, that the amounts payable during the Participant's remaining life expectancy (determined as of the date of the initial distribution payment) shall be greater than one -half of the full amount credited to the Participant's book account: 7.2 (a) In a lump sum; or 7.2 (b) In monthly, quarterly, semiannual or annual installments. Installment distributions shall be made in substantially equal payments, but no payment shall have a value of less than (the smaller of) One Hundred Dollars ($100.00) or the balance credited to the Participant's book account. A Participant's book account balance may continue to be invested until, in the Employer's sole judgement, cash is to be withdrawn for payment of benefits. 7.2 (c) In the form of an annuity under any settlement option offered in the annuity contract. 7.3 Distribution Eligibility: (a) Retirement - In the event of retirement of the Employee from the Employer, form and duration of distribution shall be as provided in Section 7.2. (b) Termination of Emplovment - In the event of separation from service of the Employee from the Employer, form and duration of distribution shall be as provided in Section 7.2. (c) Disability - In event of termination of employment by reason of disability, form and duration of distribution shall be as provided in Section 7.2. (d) Death - In the event of the death of any Participant, either before or after separation from service, the full amounts credited to the Participant's book account, less any Federal or State income tax required to be withheld, shall be distributed to the Participant's heneficiary(ies) (as determined under Section 10.4) at the time and in the manner designated in the Participant's Participation Agreement. Choices of form of distribution of benefits shall be as provided in Section 7.2. Notwithstanding the foregoing, such distribution shall commence no later than the latest date determined pursuant to Section 7.1 as if the Participant had survived to such date, and the manner of distribution must be such that the payments are made: (i) if the beneficiary is the Participant's surviving spouse, over the spouse's remaining life expectancy (determined as of the date of the initial distribution payment to the spouse) or any shorter period; or (ii) if the beneficiary is not the Participant's surviving spouse, over a period not in excess of 15 years. (e) Unforeseeable Emergency - In the event of an unforeseeable emergency affecting a Participant, the Participant may apply to the committee for withdrawal of such amount from the Plan. "Unforeseeable emergency" means a severe financial hardship to the Participant resulting from a sudden and unexpected illness or accident of the -5- Participant or of a d, ,ndent (as def i, in se .on 152(a) o` the Internal Revenue Code. of the Participant °s, 10. of the Participant's property due to casualty, or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant. Examples of events which may involve an "unforeseeable emergency" are catastrophic illness, flood, fire, earthquake, death in the family or disabling injury. Withdrawals will not be permitted for expenditures normally budqetable, such as down payment on a home, purchase of an automobile, or college expenses. Withdrawal will not be allowed to the extent that the hardship may be relieved: (i) through reimbursement or compensation by insurance or otherwise, (ii) by liquidation of the Participant's assets (to the extent such liquidation would not itself cause severe financial hardship), or (iii) by cessation of deferrals under the Plan. Withdrawals of amounts because of an unforeseeable emergency will he permitted only to the extent reasonably needed to satisfy the emergency need. Any amount so approved hereunder for withdrawal shall be paid to the Participant in a lump sum. The withdrawal shall be effective at the later of the dates specified in the Participant's application or the date approved by the Committee. Section B. Employer Participation: Notwithstanding any other Provision of this Plan, the Employer may, subject to the limitations of Section 4, make additional deposits to a Participant's deferred compensation book account as additional Compensation for the services rendered by the Employee to the Employer during any Employment Period, Provided the Employee has elected to have such additional Compensation deferred, invested, and distributed, pursuant to this Plan, prior to the period in which the Compensation will be earned. The Employer may make such further deposits to the Plan as the Employer may deem advisable, subject, however, to the limitations set forth in Section 4. Section 9. Nonassianability: The interest of a Participant in the contractual obligation of the Employer, established by the Plan, shall not be assignable in whole or in part, directly or by operation of law or otherwise, in any manner and no right or interest of a Participant in the Employer's contractual obligation shall be liable for or subject to any obligation or liability of such Participant. Section 10. Miscellaneous: 10.1 Status of Participants - Neither the establishment of the Plan nor any modification thereof, nor the establishment of any book account, nor the agreement between the Employer and the Custodian, nor the payment of any benefits, shall be construed as giving to any Participant or other person any legal or equitable right against the Employer except as herein provided: and, in no event, shall the terms of employment of any Employee or Participant be modified or in any way affected hereby. 10.2 Condition of the Plan - It is a condition of this Plan, and each Employee by participating herein expressly agrees, that he shall look solely to the general assets of the Employer for the payment of any benefit to which he is entitled under the Plan. ME 10.3 Governina Law - This Plan shall he construed, administered and enforced according to the constitution and laws of the State of California. 10.4 Designation of Beneficiaries - Each Participant shall have the right, by written notice to the Employer, to designate one or more beneficiaries to receive any benefit to which said Participant may be entitled in the event of his death prior to the complete distribution of benefits under the Plan. Each Participant shall also have the right, by written notice to the Employer, to change or revoke their beneficiary designation without notice to any beneficiary. If no such designation is in effect on a Participant's death, or if no designated beneficiary survives the Participant, his beneficiary shall be his estate. If no executor or administrator is appointed within six (6) months after the Participant's death, the Employer shall direct said benefits to be nail to the beneficiary or beneficiaries designated in his last will, or if no will, then to the heirs at law of the Participant. 10.5 Plan -to -Plan Transfers: (a) A Participant who is no longer an Employee and who subsequently becomes a participant in another plan qualified under section 457 of the Internal Revenue Code which is maintained by an employer located in California may elect, if the Participant is employed in California, to have the amount credited to his deferred compensation book account transferred to his account in the plan of his new employer, provided that the plan of the new employer provides for the receipt of such transferred amounts. If a Participant's deferred compensation hook account has been transferred to such plan, the Participant shall not be entitled to receive any benefit under this Plan, anvthinq in Section 7 to the contrary notwithstanding. (b) If prior to becoming an Employee an Employee participated in a plan qualified under section 457 of the Internal Revenue Code which was maintained by an employer located in California and who employed such Employee in California, such Employee may elect to have any amount credited to his deferred compensation account under such predecessor plan transferred to the Employer, in which case the Employer shall establish for the Employee a deferred compensation book account under the Plan to which an amount shall be credited equal to the amount so transferred. In all respects such amount shall be treated as an amount deferred under and subject to the terms of the Plan, except that the limitation set forth in Section 4.2 shall not apply. Section 11. Amendment and Termination: 11.1 The Employer may at any time and from time to time by action of its appropriate body as evidenced by an instrument in writing duly executed by the Employer modify, amend, suspend, or terminate the Plan in whole or in part (including retroactive amendments) or cease deferring Compensation pursuant to the Plan, by delivering to each Participant a written copy of such modification, amendment, or termination or of a notice that it ceases deferring Compensation, -7- provided, however, th mplover shall not have affect the value of ar., Participant's book acccu..c orCanytriahzsce or accrued under the Plan prior to such modification, amendment, termination or cessation. 11.2 In the event of the complete termination of the Plan by the Employer under Section 11.1, the value of all Participant's book accounts shall be distributed to the Participants or their beneficiaries in lump sum by the ninetieth (90th) day after termination of the Plan. Section 12. Emplover Not Responsible: The Employer may, but is not required to, invest amounts equal to the deferred compensation credited to a Participant's hook account nursuant to the Plan in accordance with the requests made by each Participant at the time of enrollment or change in enrollment. The Employer shall retain the right to approve, disapprove, amend or revise such investment requests. Any action by the Employer in investing funds, or approving of any such investment of funds, shall not be considered to be either an endorsement of guarantee of anv investment, nor shall it he considered to attest to the financial soundness or the suitability of any investment for the nurpose of meeting future obligations as provided in Section 7 of this Plan. Section 13. Deferred Compensation Plan Committee: 13.1 The Deferred Compensation Plan Committee, hereinafter referred referred to as the "Committee," shall consist of individuals who are desiqnated by the Employer. The Committee Chairman shall certify to the Administrator the names and specimen signatures of the members of the Committee. As members are replaced and appointed, such changes shall be certified to the Administrator in the same manner. The Administrator may rely in good faith on any directions signed by a majority of the members, or any Person(s) designated to represent them. 13.2 The Committee may adopt rules and regulations for the administration of the Plan consistent with the terms of the Plan. The Committee may take action at a meeting or by written resolution. The action of the Committee shall be final and conclusive regarding the exercise of its authority under the terms of the Plan. 13.3 The Committee shall have all powers to perform all duties necessary to exercise its functions includinq, but not limited to, the: (a) Determination of Employees' eligibility, participation and benefits under the Plan; (b) Establishment and maintenance of written records showinq at any time the interest of a Participant in his deferred compensation book account; (c) Interpretation and construction of the provisions of the �� Plan; (d) Direction of the Employer (or the Custodian on behalf of the Employer) to make disbursement of benefits under the Plan; (e) Selection and review of any investment currently offered or under consideration to be offered as an investment objective under the Plan, (f) Appointment of such agents, advisors, counsel and delegates as may be necessary and appronriate for the administration and operation of this Plan and the delegation to such agent, advisors, counsel and delegates of any of its discretionary and ministerial powers and duties in accordance with this Section; and (q) Composition of and provision to Participants of all forms as described in this Plan. Section 14. Gender and Plurals: The masculine Gender shall include the feminine and neuter gender, the masculine pronoun shall include feminine and neuter, the singular number the plural, and conversely, whenever appropriate. /dep201.losaatos 101283 CM