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1e. Enroll Firefighters in Deferred Comp Program C I F CHANHASSEN 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 ' (612) 937-1900 • FAX (612) 937-5739 MEMORANDUM DATE: September 16, 1991 4- TO: Don Ashworth, City Manager FROM: Jean Meuwissen, Treasurerciad�• SUBJECT: Resolution, USCM Deferred Compensation Program According to new IRA regulations, effective July 1 , 1991, all City employees (part time, seasonal , firefighters) not contributing to a ' retirement plan, must have social security withheld from their wages with the City matching that amount . Social Security will not have to be paid or withheld if these ' employees choose to join a qualified retirement plan. The USCM program is a qualified plan. I am requesting approval of the attached sample resolution so that employees can take advantage of ' the USCM Deferred Compensation Program. Council Members may take advantage of this program if they choose. 1 I t I 1 1 I'! �4131 PRINTED ON RECYCLED PAPER THE UNITED STATES CONFERENCE OF MAYORS (USCM) DEFERRED COMPENSATION PROGRAM SAMPLE RESOLUTION OF THE COUNCIL OF THE CITY OF In the Matter of: ESTABLISHING A DEFERRED COMPENSATION PLAN FOR THE CITY OF: No. I, , City Clerk of the City of , State of , do hereby certify that the following resolution, proposed by Councilmember , seconded by Councilmember ' , was duly passed and adopted by the Council of the City of , at a regular meeting thereof assembled this day of , 19 , by the following vote, to wit: AYES: COUNCILMEMBERS: NOES: ABSENT: CLERK CITY OF ' WHEREAS, the City has considered the establishment of a Deferred Compensation Plan to be made available to all eligible city employees, elected officials, and independent contractors pursuant to Federal legislation permitting such Plans; and ' WHEREAS,certain substantial tax benefits could accrue to employees,elected officials,and independent contractors participating in said Deferred Compensation Plans; and WHEREAS, such benefits will act as incentives to City employees to voluntarily set aside and invest ' portions of the current income to meet their future financial requirements and supplement their City retirement and Social Security (if appliable), at no cost to the City; and WHEREAS, The U.S. Conference of Mayors has established a master prototype deferred compensation ' program for cities and political subdivisions permitting its member cities and their employees to enjoy the advantages of this program; WHEREAS,The U.S.Conference of Mayors,as Plan Administrator,agrees to hold harmless and indemnify ' the City,its appointed and elected officers and participating employees from any loss resulting from The U.S. Conference of Mayors or its Agent's failure to perform its duties and services pursuant to The U.S.Conference of Mayors Program; ' NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DOES HEREBY RESOLVE AS FOLLOWS: The City Council hereby adopts the U.S. Conference of Mayors Deferred Compensation Program and its ' attendant investment options and hereby establishes the City of Deferred Compensation Plan for the voluntary participation of all eligible city employees, elected officials and independent contractors. The is hereby authorized to execute for the City, individual participation agreements with each said employee requesting same,and to act as the"Administrator"of the Plan representing the City, and to execute such agreements and contracts as are necessary to implement the ' Program. It is implicitly understood that other than the incidental expenses of collecting and disbursing the employee's deferrals and other minor adminstrative matters, that there is to be no cost to the City for the Program. PASSED AND ADOPTED THIS DAY OF , 19 MAYOR CITY ATTEST: CITY COORDINATOR, CITY OF ' *This resolution contains the necessary technical language as to content and substance. If any change in form is necessary in order to comply with applicable city requirements, please make such changes. DC-390-A (12-89) White—Service Center,Canary—Entity, Pink—PEBSCO Field Representative UNITED STATES CONFERENCE OF MAYORS DEFERRED COMPENSATION PROGRAM THE DEFERRED COMPENSATION PLAN FOR PUBLIC EMPLOYEES PLAN DOCUMENT /ice' NAME OF CITY The Plan consists of the provisions set forth in this document, and is applicable to each Public Employee who elects to participate in the Plan.The Plan is effective as to each such Public Employee upon the date he becomes a"PARTICIPANT" by signing and filing with the Administrator the Par- ticipation Agreement referred to herein. ARTICLE I Definitions 1.01. The following terms shall, for purposes of this Plan, have the meaning set forth below. (a) ADMINISTRATOR means the person, department, agency or organization appointed by the EMPLOYER to administer the Plan. (b) BENEFICIARY means the person properly designated by a PARTICIPANT to receive the PARTICIPANT'S benefit under this Plan. (c) COMPENSATION means all payments made by the EMPLOYER as remuneration for ser- vices rendered, including salaries, fees, etc. ' (d) EMPLOYER means the above referenced city or any of its agencies, departments, sub- divisions or instrumentalities for which services are performed by a PARTICIPANT. (e) INCLUDIBLE COMPENSATION means, for the purposes of the limitations on deferrals, compensation for services performed for the EMPLOYER which is currently includible in gross income after giving effect to all provisions of the IRC.The amount of Includible Compensation shall be determined without regard to any community property laws. (f) INDEPENDENT CONTRACTOR means any person receiving any type of compensation from the EMPLOYER or any of its agencies,departments,subdivisions or instrumentalities for which services are rendered pursuant to one or more written or oral contracts, if such person is not an employee. (g) IRC means the Internal Revenue Code of 1986,as now in effect or as hereafter amended. , (h) NORMAL RETIREMENT AGE means the age specified in writing by the PARTICIPANT. If the EMPLOYER has an EMPLOYER'S Retirement System,the Normal Retirement Age specified by the PARTICIPANT must be an age at which the PARTICIPANT is eligible to retire pursuant to the EMPLOYER'S Retirement System, by virtue of age, length of ser- vice,or both,without consent of the EMPLOYER and with the right to receive immediate retirement benefits without actuarial or similar reduction because of retirement before some later specified age.In no event shall Normal Retirement Age be later than age 701/2. (i) PARTICIPANT means any Public Employee who is eligible to defer Compensation under the Plan and who participates under this Plan by signing'the Participation Agreement. ' U) PARTICIPATION AGREEMENT means the application to the Administrator to participate in the Plan. ' DC-549-B (8-89) Page 1 .� (k) PLAN means the Deferred Compensation Plan For Public Employees as set forth in this document and as it may be amended from time to time. • (I) PLAN YEAR means the calendar year in which the Plan becomes effective, and each I succeeding calendar year during the existence of this Plan. (m)PUBLIC EMPLOYEE means any person who receives any type of compensation from the EMPLOYER for which services are rendered (including, but not limited to, elected or appointed officials, salaried employees, and independent contractors). I (n) SEPARATION FROM SERVICE means Separation From Service as defined in IRC Section 402(e)(4)(A)(iii), and on account of the PARTICIPANT'S death or retirement.An Independent Contractor shall not be considered Separated From Service with the EMPLOYER and shall I not receive any benefits hereunder unless (1) at least 12 months have expired since the date on which the last contract, pursuant to which the Independent Contractor provided any services to the EMPLOYER, was terminated, and (2)the Independent Contractor has I performed no services for the EMPLOYER during the 12-month period referred to herein either as an Independent Contractor or employee. (o) UNFORESEEABLE EMERGENCY means severe financial hardship to the PARTICIPANT I resulting from a sudden and unexpected illness or accident of the PARTICIPANT or a dependent (as defined in IRC Section 152(a)) of the PARTICIPANT, loss of the PARTICIPANT'S property due to casualty, or other similar or extraordinary and I unforeseeable circumstances arising as a result of events beyond the control of the PARTICIPANT. I ARTICLE II Election to Defer Compensation I 2.01. The PARTICIPANT may elect to participate by signing the Participation Agreement and consenting to a reduction of salary by the deferral amount specified in the Participation Agreement. The amount of the reduction ("deferred amount") must equal at least $20 per month. I 2.02. The EMPLOYER shall commence the reduction no earlier than the first pay period com- mencing during the first month after the date on which the Participation Agreement is filed with the Administrator. I 2.03. (a) The PARTICIPANT may revoke his election to participate and may amend the amount of Compensation'to be deferred by signing and filing with the Administrator a written revocation or amendment on a form and in the procedural manner approved by the Administrator. In addition, I the PARTICIPANT may amend his investment specification in the procedural manner approved by the Administrator. Any amendment which increases the amount deferred for any pay period shall be effective only if an agreement providing for such additional deferred amount is entered into before the beginning of the month in which the pay period commences. Any revocation or I amendment of the amount deferred shall be effective prospectively only. Any change in the PARTICIPANT'S investment specification by the PARTICIPANT, whether it applies to amounts previously deferred or amounts to be deferred in the future, shall be effective prospectively only I and shall be effective on a date consistent with the rules and specifications of the investment carrier. (b) After the death of the PARTICIPANT, his Beneficiary shall have the right to amend the PARTICIPANT'S, or the Beneficiary's own, investment specification by signing and filing with the I Administrator a written amendment on a form and in the procedural manner approved by the Administrator. Any change in an investment specification by a Beneficiary shall be effective on a date consistent with the rules and specifications of the investment carrier.The right of a Benefi- I ciary to amend an investment specification shall terminate on the last day available for an election concerning the mode of payment pursuant to Section 8.03 below. Notice to ALL PARTICIPANTS to Read These Provisions Providing Deferral Limitations and"Catch. Iup" Deferrals Under the Plan. 2.04. Except as provided in Section 2.05, the maximum deferred amount under the Plan for the PARTICIPANT'S taxable year shall not exceed the lesser of (a) $7,500 or(b) 33 1/3 °A) of the PAR- 1 TICIPANT'S Includible Compensation as provided in IRC Section 457. 1 Page 2 DC-549-B (8-89) • 2.05. For one or more of the PARTICIPANT'S last 3 taxable years ending before the attainment of Normal Retirement Age under the Plan, the maximum deferral shall be the lesser of: (a)$15,000 or(b)the limitation established for the taxable year under Section 2.04,plus the limitation established for purposes of Section 2.04 for prior taxable years beginning after December 31, 1978,during which the PARTICIPANT was eligible to participate less the amount of Compensation deferred under the Plan for such prior taxable years. 206. In applying the deferral limitations of Sections 2.04 and 2.05, any amounts excluded from the PARTICIPANT'S gross income for the taxable year under IRC Section 403(b), and, effective January 1, 1989, under IRC Sections 402(a)(8) and 402(h)(1)(B) and deductible contributions to an organization described in IRC Section 501(c)(18), shall be treated as amounts deferred as provided in IRC Section 457(c). 1 ARTICLE III EMPLOYER Contributions , The EMPLOYER may contribute to the Plan for PARTICIPANTS. EMPLOYER contributions shall vest at the time such contributions are made. For purposes of administering Sections 2.04 and 2.05, EMPLOYER contributions shall apply toward the maximum deferral limits in the Plan Year that such contributions are made. ARTICLE IV , Plan Transfers 4.01. If a PARTICIPANT terminates employment with the EMPLOYER and accepts employment with another employer which maintains an eligible deferred compensation plan (as defined in IRC Section 457) and the new employer's plan accepts transfers, the PARTICIPANT may transfer his account balance from the Plan to the plan maintained by the new employer. 4.02. Transfers from other eligible deferred compensation plans(as defined in IRC Section 457) to the Plan will be accepted at the PARTICIPANT'S request if such transfers are in cash or non- annuity products currently offered under the Plan.Any such transferred amount shall not be subject to the limitations of Section 2.04, provided, however, that the actual amount deferred during the calendar year under both plans shall be taken into account in calculating the deferral limitation for that year. For purposes of determining the limitation set forth in Section 2.05,years of eligibility to participate in the prior plan and deferrals under that plan shall be considered. ' ARTICLE V Designation of Beneficiary 111 The PARTICIPANT shall have the right to file,with the Administrator,a written Beneficiary or change of Beneficiary form designating the person or persons who shall receive the benefits payable under this Plan in the event of the PARTICIPANT'S death. The form for this purpose shall be provided by the Administrator and will have no effect until it is signed, filed with the Administrator by the PARTICIPANT, and accepted by the Administrator. If the PARTICIPANT dies without having a Beneficiary form on file,the benefits will be paid to the PARTICIPANT'S estate.The PARTICIPANT accepts and acknowledges that he has the burden for executing and filing with the Administrator a proper Beneficiary designation form. ARTICLE VI I Accounts and Reports 6.01. THE EMPLOYER shall remit the amounts deferred to the Administrator or his designated agent. The Administrator shall have no duty to determine whether the funds paid to him by the EMPLOYER are correct, nor to collect or enforce such payment. 6.02. For convenience and to facilitate an orderly administration of the Plan, the Administrator , shall maintain a deferred account with respect to each PARTICIPANT.A written report of the status of the PARTICIPANT'S deferred account shall be furnished at least annually and within ninety(90) days after the end of each calendar year to the PARTICIPANT. , DC-549-B (8-89) Page 3 I 6.03. Within ninety (90) days after the end of the calendar year, the Administrator shall file with the EMPLOYER a written report of the assets of the Plan, a schedule of all receipts and disburse- ments, and a report of all material transactions of the Plan during the preceding year. 6.04. The Administrator's records shall be open to inspection during normal business hours by the EMPLOYER or any PARTICIPANT, or their designated representatives. 6.05. All reports to the PARTICIPANT shall be based on fair market value as of the reporting date. I ' ARTICLE VII Investment of Deferred Amount - 7.01. The deferred amounts shall be delivered by the EMPLOYER to the Administrator or his designated agent for investment as designated by the EMPLOYER. 7.02. The EMPLOYER shall use the PARTICIPANT'S or Beneficiary's investment specifications ' so as to determine the value of the deferred account maintained with respect to the PARTICIPANT as if the deferred amounts had been invested according to such specifications. The EMPLOYER shall be under no obligation to invest the deferred amounts as specified by the PARTICIPANT or ' Beneficiary. 7.03. All interest, dividends, charges for premiums and administrative expenses, and changes in value due to market fluctuations applicable to each PARTICIPANT'S deferred account shall be ' credited or debited to the account as they occur. 7.04. All assets of the Plan, including all deferred amounts, property and rights purchased with deferred amounts, and all income attributable to such deferred amounts, property or rights, shall remain (until made available to the PARTICIPANT or Beneficiary) solely the property and rights of the EMPLOYER(without being restricted to the provision of benefits under the Plan), subject only to the claims of creditors of the EMPLOYER. Contracts and other evidences of the investments of all assets under this Plan shall be registered in the name of the EMPLOYER which shall be the owner and beneficiary thereof.The rights of the PARTICIPANT-treated by this Plan shall be those of a general creditor of the EMPLOYER, and in an amount equal to the fair market value of the ' deferred account maintained with respect to the PARTICIPANT.The PARTICIPANT acknowledges that his rights are no greater than those of a general creditor of the EMPLOYER and that in any suit for an accounting, to impose a constructive trust, or to recover any sum under this Plan, the PARTICIPANT'S rights are limited to those of a general creditor of the EMPLOYER.The EMPLOYER ' acknowledges that the Administrator is the agent of the EMPLOYER. ARTICLE VIII ' Benefits 8.01. Commencement of Distributions:The PARTICIPANT may elect the time at which distributions under the Plan are to commence by designating the month and year during which the first ' distribution is to be made. The earliest distribution commencement date that may be elected by the PARTICIPANT shall be the earlier of: (a) The date on which the PARTICIPANT separates from service; or ' (b) The date on which the PARTICIPANT attains age 70V2 or terminates deferrals under this Plan, whichever is later. In addition, the date chosen must be at least five(5)days following the date on which the election ' is filed with the Administrator.The PARTICIPANT shall make such election no later than sixty(60) days following the end of the calendar year in which the PARTICIPANT separates from service or Isixty (60) days following attainment of age 70, whichever occurs first. Benefits payable to the I PARTICIPANT will be the equivalent of the total benefits that would have been created had the deferred amounts been invested as specified by the PARTICIPANT. The date elected for commencement of distributions ("the Elected Commencement Date") shall ' be not later than the Mandatory Commencement Date, which is the later of: (a) April 1 of the calendar year following the calendar year in which the PARTICIPANT attains age 701: or (b) April 1 of the calendar year following the calendar year in which the PARTICIPANT separates from service with the EMPLOYER. Page 4 DC-549-B (8-89) Such election shall not be changed once the election is made. Failure to file an election with the • Administrator within the appropriate time period will result in the Administrator beginning distributions on the Mandatory Commencement Date. 8.02. Mode of Payment: Benefits shall be paid in accordance with the payment option elected by the PARTICIPANT. Payment, method of payment, and settlement options are available as provided by each of the available investment specifications. At least thirty (30) days prior to the Elected or Mandatory Commencement Date,the PARTICIPANT shall elect the mode of payment based upon the options then available. Such election shall be irrevocable after the thirtieth(30th)day preceding the date on which benefits will commence. Failure to file an election with the Administrator will result in: (a) If the PARTICIPANT'S account value is $10,000.00 or less, the Administrator shall make a lump sum distribution to the PARTICIPANT; or (b) If the PARTICIPANT'S account value is greater than $10,000.00,the Administrator shall elect an annuity payout for the PARTICIPANT which provides for monthly payments to the PARTICIPANT in the form of a life annuity with a ten (10) year certain period. 8.03. Payments to Beneficiary: If the PARTICIPANT dies while employed with the EMPLOYER, or the PARTICIPANT dies before the benefits to which he is entitled under this Plan have been exhausted, the benefit payable under this Plan shall be paid to his designated Beneficiary. The Beneficiary shall have the right to elect the time and mode of payment of such benefits,subject to the limitations set forth in this Plan. Such election as to the time of payment (distribution commencement date) shall be filed by the Beneficiary not later than one hundred twenty(120)days following the PARTICIPANT'S death and shall not be changed once the election is made. The distribution commencement date must be at least five(5)days following the date on which the election as to the time of payment is filed with the Administrator(subject to the December 31 commencement date for surviving spouses as described later in this Section),and distributions to a Beneficiary shall be completed within the applicable time period specified in the remaining paragraphs of this Section. An election concerning the mode of payment shall be filed by the Beneficiary either(i)at least thirty (30)days prior to the date elected for the commencement of benefits,-or{ii)within one hundred twenty (120) days following the PARTICIPANT'S death, whichever is later. Failure to file an election as to the time of payment will result in the Administrator beginning distribution to the Beneficiary no earlier than one hundred twenty-five (125) days following the PARTICIPANT'S death (subject to the December 31 commencement date for surviving spouses as described later in this Section). Failure to file an election as to the manner of payment will result in the Administrator making a lump sum cash distribution. If the PARTICIPANT dies prior to January 1, 1989, benefits payable to a Beneficiary shall, in all events, be completed during a period not in excess of (a) the life of the Beneficiary, if such Beneficiary is the surviving spouse of the PARTICIPANT, or (b) 15 years, in all other circumstances. If the PARTICIPANT dies on or after January 1, 1989, and after the commencement of distributions, then any amount not distributed to the PARTICIPANT during his life shall be distributed to the Beneficiary at least as rapidly as under the method of distribution used by the PARTICIPANT at the time of the PARTICIPANT'S death. In addition, if the PARTICIPANT dies prior to the commencement of distributions, but on or after January 1, 1989,then the PARTICIPANT'S account shall be distributed to the Beneficiary within 5 years (or over the life or life expectancy of the Beneficiary, but not to exceed 15 years,if distributions commence within 1 year); provided,however,that if such Beneficiary is the surviving spouse of the PARTICIPANT, then (a) such distributions need not commence prior to December 31 of the calendar year in which the PARTICIPANT would have attained age 701 (or such other date as may be permitted under applicable Treasury Regulations),and(b)benefits payable to such spouse shall be completed during a period not in excess of such spouse's life expectancy. No settlement option available to the PARTICIPANT shall provide benefits to Beneficiaries which are equal to or greater than 33 1/3% of the maximum benefit (or such other amount as may be permitted under applicable Treasury Regulations)that would have been payable to the PARTICIPANT if no provision had been made for payment to a Beneficiary(as determined by the use of the expected return multiples in Treasury Regulation Section 1.72-9, or, in the case of payments under a contract issued by an insurance company, by the use of the mortality tables of such company). In addition, any settlement option payable over a period of more than 1 year shall be made only in substantially nonincreasing amounts paid not less frequently than annually. DC-549-B (8-89) Page 5 , I 8.04. Unforeseeable Emergency: Notwithstanding any other provisions herein, in the event of an Unforeseeable Emergency,a PARTICIPANT may request that benefits be paid to him immediately; provided, however, that payment of any such benefits after the Elected or Mandatory I Commencement Date shall be subject to any limitations specified by an investment carrier. Such request shall be filed in accordance with procedures established pursuant to this Plan. If the application for payment is approved by the EMPLOYER or its designee, payments shall be effected within 45 days of such approval. Benefits to be paid shall be limited strictly to the amount necessary I to meet the Unforeseeable Emergency constituting financial hardship to the extent such Unforeseeable Emergency is not relieved: (a) through reimbursement or compensation by insurance or otherwise; I (b) by liquidation of the PARTICIPANT'S assets, to the extent the liquidation of such assets would not itself cause financial hardship; or I (c) by cessation of deferrals under the Plan. • Foreseeable personal expenditures normally budgetable, such as a down payment on a home, the I purchase of an automobile, college or other educational expenses, etc., will not constitute an Unforeseeable Emergency.The decision of the EMPLOYER or its designee concerning the payment of benefits under this Section shall be final. I ARTICLE IX Administration of Plan I9.01. The Employer may at any time amend, modify, or terminate the Plan without the consent of the PARTICIPANT(or any Beneficiary thereof).All amendments shall become effective forty-five I (45) days after the issuance of notice of the amendments by the Administrator to the EMPLOYER. To the extent it is possible to do so,the Administrator shall mail an explanation of all amendments that become effective during the year to the PARTICIPANT with his annual report. No amendments shall deprive the PARTICIPANT of any of the benefits to which he is entitled under this Plan with Irespect to deferred amounts credited to his account prior to the effective date of the amendment. If the Plan is curtailed, terminated, or the acceptance of additional deferred amounts suspended I permanently,the Administrator shall nonetheless be responsible for the supervision of the payment of benefits resulting from amounts deferred prior to the amendment, modification, or termination in accordance with Article VIII hereof. I9.02. Any companies that may issue any policies, contracts, or other forms of investment media used by the EMPLOYER or specified by the PARTICIPANT, are not parties to this Plan and such companies shall have no responsibility or accountablility to the PARTICIPANT or his Beneficiary Iwith regard to the operation of this Plan. 9.03. Participation in this Plan by a Public Employee shall not be construed to give a contract I of employment to the PARTICIPANT or to alter or amend an existing employment contract of the PARTICIPANT, nor shall participation in this Plan be construed as affording to the PARTICIPANT any representation or guarantee regarding his continued employment. I9.04. The EMPLOYER and the Administrator do not represent or guarantee that any particular Federal or State income, payroll, personal property, or other tax consequence will occur because of the PARTICIPANT'S participation in this Plan. The PARTICIPANT should consult with his own I representative regarding all questions of Federal or State income, payroll, personal property, or other tax consequences arising from participation in this Plan. I 9.05. The Administrator shall have the power to appoint agents to act for and in the administration of this Plan and to select depositories for the assets of this Plan. I 9.06. Whenever used herein, the masculine gender shall include the feminine and the singular shall include the plural unless the provisions of the Plan specifically require a different construction. IPage 6 DC-549-B (8-89) 9.07. The laws of the state of the EMPLOYER shall apply in determining the construction and validity of this Plan. 9.08. The rights of the PARTICIPANT under this Plan shall not be subject to the rights of creditors I of the PARTICIPANT or any Beneficiary, and shall be exempt from execution, attachment, prior assignment, or any other judicial relief or order for the benefit of creditors or other third persons. 9.09. It is agreed that neither the PARTICIPANT nor his Beneficiary nor any other designee shall have any right to commute, sell, assign, pledge,encumber,transfer,or otherwise convey the right to receive any payments hereunder which payments and right thereto are expressly declared to be nonassignable and nontransferable. 9.10. This Plan, and any properly adopted amendments, shall constitute the total agreement or contract between the EMPLOYER and the PARTICIPANT regarding the Plan. No oral statement regarding the Plan may be relied upon by the PARTICIPANT. 9.11. This Plan and any properly adopted amendments,shall be binding on the parties hereto and their respective heirs, administrators,trustees, successors, and assignees and on all Beneficiaries of the PARTICIPANT. ARTICLE X • Notice to ALL PARTICIPANTS to Read These Provisions Providing Broad Powers and Absolute Safeguards to the EMPLOYER 10.01. The EMPLOYER, or its authorized agent, the Administrator,shall be authorized to resolve any questions of fact necessary to decide the PARTICIPANT'S right under this Plan and such decision shall be binding on the PARTICIPANT and any Beneficiary thereof. 10.02. The EMPLOYER,or its authorized agent,the Administrator,shall be authorized to construe the Plan and to resolve any ambiguity in the Plan. 10.03. The PARTICIPANT specifically agrees not to seek recovery against the EMPLOYER, the Administrator or any other employee, contractee, or agent of the EMPLOYER or Administrator, or 111 any endorser for any loss sustained by the PARTICIPANT or his Beneficiary, for the non-performance of their duties, negligence, or any other misconduct of the above named persons except that this paragraph shall not excuse fraud or wrongful taking by any person. 10.04. The EMPLOYER, or its agents including the Administrator, if in doubt concerning the correctness of their action in making a payment of a benefit,may suspend the payment until satisfied as to the correctness of the payment or the person to receive the payment or allow the filing in any State court of competent jurisdiction, a suit in such form as they consider appropriate for a legal determination of the benefits to be paid and the persons to receive them. The EMPLOYER shall comply with the final orders of the court in any such suit and the PARTICIPANT, for himself and his Beneficiary, consents to be bound thereby insofar as it affects the benefits payable under this Plan or the method or manner of payment. 10.05. The EMPLOYER and its agents, including the Administrator,are hereby held harmless from all court costs and all claims for the attorneys' fees arising from any action brought by the PARTICIPANT or any Beneficiary thereof under this Plan or to enforce his rights under this Plan, including any amendments hereof. I 10.06. The Administrator shall not be required to participate in any litigation concerning the Plan except upon written demand from the EMPLOYER. The Administrator may compromise, adjust or effect settlement of litigation when specifically instructed to do so by the EMPLOYER. DC-549-B (8-89) Page 7 1 IARTICLE XI Prior Plan If the EMPLOYER has already accepted the United States Conference of Mayors Deferred Compensation Program and adopted an eligible deferred compensation plan, as defined in IRC Section 457, under such Program (the "Prior Plan"), then the EMPLOYER intends that this Plan 1 shall amend and restate the Prior Plan. In such event, this Plan shall apply to all participants in the Prior Plan on the effective date hereof, and also to each Public Employee who elects to participate in this Plan on and after the effective date hereof. ARTICLE XII 1 Effective Date This Plan shall be effective on the date and year written below. 1 IN WITNESS WHEREOF, the undersigned has executed this Plan this of , 19 1 (Name of City) 1 By: 1 1 1 1 1 1 I1 1 Page 8 DC-549-B (8-89)