HomeMy WebLinkAboutC-3028 - Employee Agreement (Deferred Compensation)• • C -.3029
CITY OF NEWPORT BEACH
DEFERRED COMPENSATION AGREEMENT
This agreement is entered into the,Gday of -<:Ql�, 1994 between the City of Newport
Beach, a public agency organized and existing under the laws of the State of California,
hereafter called the "City" and David E. Niederhaus, hereinafter referred to as the
"Employee."
Whereas the City desires to enter into this agreement with the Employee in
consideration for his commitment to provide substantial, long term services, the City
agrees to make certain payments if the Employee continues in the employ of the City.
This Agreement is designed to comply with the requirements of Internal Revenue Code
Section 457(f). The City makes no representation with respect to individual tax
consequences of this agreement.
1. Deferral Election
The Employee agrees that his unearned and unpaid Compensation for the remaining
months of the current Employment Year and for each employment year thereafter shall
be reduced by the deferral amount periodically as selected and designated on the
attached Schedule. This deferral amount shall be credited to the Employee's account
each period during the time this agreement remains in effect. Prior to the beginning of
each new Employment Year, the Employee shall have the right to amend this election to
increase or decrease the Deferral Amount for the next Employment year. No actual
transfer of funds to such account shall be required. The Employee's other benefits
which are provided by the City and which are based on the Employee's Compensation
will continue to be provided to the Employee as if no amounts were deferred under this
Agreement.
2. Risk of Forfeiture
If the Employee's employment with the City is terminated for any reason other than
retirement, death, or disability and the Employee has not within 180 days after the date
of termination provided the City with evidence satisfactory to the City that the
Employee has been employed by a Successor Employer (or subsequent Successor
Employer in the event succeeding employment relationships are also terminated for any
reason other than retirement, death or disability), the Employee's entire account balance
will be forfeited to the City and he will have no further right to the deferred
compensation.
3. Lapse of Risk of Forfeiture
If the Employee's employment with the City or a Successor Employer terminates
because of retirement according to the provisions of the applicable pension plan, or
because of Death or Disability, the risk of forfeiture described in Section 2 above shall
lapse and the Employee's account balance shall be fully vested with the Employee and
distributed to him or his designated beneficiary within sixty (60) days of termination in
the form designated in Section 15 of this agreement. Risk of Forfeiture shall also lapse
after April 1, 2008.
.I
The Employee promises to provide future performance of substantial services to the
City through April 1, 2008 in accordance with the present and future job description of
the General Services Director position.
5. No Segregation of Deferred Compensation
Nothing contained herein shall be deemed to create a trust of any kind or create any
fiduciary relationship. Any funds which (at the election of the City) may actually be
credited to the account of the Employee shall continue for all purposes to be part of the
general funds of the City, and no person other than the City, by virtue of the provisions
of this Agreement shall have any interest in such funds. To the extent that any person
acquires a right to receive payments from the City under this Agreement, such rights
shall be no greater than the right of any unsecured or general creditor of the City.
6. Administration
The books and records to be maintained for the purpose of the Agreement shall be
maintained by the City. All the expenses of administering the Agreement shall be paid
at the sole determination of the City. The Employee agrees to provide at such times and
in such manner as my be requested by the City, such information as may be necessary
for the City to prepare any reports required by the Internal Revenue Service, the
Department of Labor, or any other governmental agency authorized to receive such
information.
7. Interest Not Assienabl
To the extent permitted by law, the interest of the Employee in any deferred
Compensation hereunder shall not be subject in any manner to attachment or other
legal process for the debts of the employee, nor shall the Employee's interest be subject
to anticipation, alienation, transfer, assignment or encumbrance.
8. Amendment of Agreement
The Agreement may only be amended or revoked by written agreement of the City and
the Employee.
9. No Employment Contract
This Agreement shall not be deemed to constitute a contract of employment between
the City and the Employee, nor shall any provision hereof restrict the right of the City to
discharge the Employee for just cause or of the Employee to voluntarily terminate his
employment.
0 0
.. - -.
Distribution shall be made to Employee's surviving spouse, or if there is no surviving
spouse, to his estate. No other beneficiary designation shall be valid unless it is in
writing and signed by the Employee and his spouse (if married), dated and filed with
the City.
11. Disability
In the event the Employee, prior to retirement becomes disabled, then the Employee or
his lawful guardian shall upon written request, be entitled to receive the account
balance as provided in Section 15.
This Agreement shall be construed, administered and enforced according to the laws of
the State of California provided however, that it is intended that this Agreement create a
deferred compensation arrangement which complies with the requirements of the 1986
Internal Revenue Code Section 457(f) and the Agreement shall be so construed and
limited and the powers hereunder exercised so as to accomplish this purpose.
13. Notices
Any notice, accounting or other communication which the City may give the Employee
shall be deemed given when mailed to the Employee at the latest address which has
been furnished to the City. Any notice or other communication which the Employee
may give to the City shall not become effective until actual receipt of said notice by the
City.
14. Separability
If any provision of the Agreement shall be for any reason invalid or unenforceable, the
remaining provisions shall, nevertheless, continue in effect and shall not be invalidated
thereby unless they are rendered unconscionable, inadequate or incapable of being
interpreted as a result of the invalid or unenforceable provisions of the Agreement.
15. Form of Payment
The City at its sole determination shall pay the deferred compensation in one or more of
the methods designated below:
a. Lifetime Annuity or payments over assumed lifetime.
b. Monthly Installments up to ten (10) years.
c. Lump Sum.
•
16. Arbitration
C`
If the Employee, beneficiaries or lawful representative dispute benefit denial based
upon completed performance of the agreement or meaning and effect of the terms and
conditions thereof, then the claimants may submit the dispute to a Board of Arbitration.
Said Board shall consist of one member selected by the Employee, his beneficiaries or
lawful representative; another selected by the City; and a third member selected by the
first two members. The Board shall operate under any general recognized set of
arbitration rules. The parties hereto agree and acknowledge that they and their heirs,
successors, and assignees shall be bound by the decisions of such Board with respect to
any controversy properly submitted to it for determination.
17. Agreement
This Agreement represents the entire understanding of the parties and any modificaiton
is effective only if it is in writing and signed by the party to be charged.
Dated: 4 4 • �S ���7
ATTEST:
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
David E. Niederhaus
AS TO FORM:
°� CI"`Y OF NEWPORT F7ACH
} l
U
c
DEFERRED COMPENSATION AGREEMENT
THIS AGREEMENT, is adopted effective June 1, 1988 by the City
of Newport Beach, a public agency organized and existing under the laws
of the State of California, hereinafter called the "AGENCY".
WHEREAS, the AGENCY desires to enter into this Agreement with
certain employees of the AGENCY under which, in consideration of services
rendered in the past and services to be rendered in the future, the
AGENCY will agree to make certain payments if the Employee continues in
the employ of the AGENCY.
This deferred compensation agreement is designed to comply with
the requirements of Internal Revenue Code Section 457(f). The AGENCY
makes no representation with respect to individual tax consequences of
this agreement.
1. Definitions
a. "Agreement" means this deferred compensation agreement
as it may be amended from time to time.
b. "Compensation" means the amount of salary to be paid
by the AGENCY during the Employment Year to the Employee for services
to be rendered during the Employment Year and which is reportable as
income to the Federal Government for Federal Income Tax purposes, or
which would be so reportable if the Employee had not elected to defer
a portion of his Compensation under Section 2 of the Agreement.
c. "Deferral Amount" means the amount the Employee has
elected to defer periodically under this Agreement. Any payment
under this Agreement shall be independent of, and in addition to,
those under any other plan, program, or agreement which may be in
effect between the parties hereto, or any other compensation payable
to the Employee or the beneficiary by the AGENCY.
d. "Disability" means the Employee is unable to engage
in any substantial gainful activity by reason of any medically deter-
minable physical or mental impairment which can be expected to result
in death or to be of long -continued and indefinite duration.
e. "Employee" means persons employed in job classifica-
tions under the Salary Resolution of AGENCY, who have been employed one
or more years.
f. "AGENCY" means the City of Newport Beach.
g. "Employment Year" or "Year" means the calendar year.
h. "Successor Employer" means any California government
agency eligible to adopt an IRC Section 457 -plan and covered by the
Public Employees retirement System, State Teachers Retirement System,
County Retirement Act of 1937, a reciprocal system, or any similar
public Agency system.
2. Deferral Election
The Employee agrees that his unearned and unpaid Compensation
for the remaining months of the current Employment Year and for each
employment year thereafter shall be reduced by the deferral amount
periodically as selected and designated on Schedule A attached. This
deferral amount shall be credited to the Employee's account each period
during the time this agreement remains in effect. Prior to the
beginning of each new Employment Year, the Employee shall have the
right to amend this election to increase or decrease the Deferral
Amount for the next Employment Year. No actual transfer of funds to
such account shall be required. The Employee's other benefits which
are provided by the AGENCY and which are based on the Employee's
Compensation will continue to be provided to the Employee as if no
amounts were deferred under this Agreement.
3. Risk of Forfeiture
If the Employee's employment with the AGENCY (i) is
terminated for any reason other than retirement pursuant to the
provisions of the applicable retirement plan as outlined, in 1(h)
above, or because of death or disability and (ii) the Employee has
not within 180 days after the date of termination provided the AGENCY
with evidence satisfactory to the AGENCY that the Employee has been
employed by a Successor Employer (or subsequent Successor Employer in
the event succeeding employment relationships are also terminated for
any reason other than retirement, death or disability), the Employee's
entire account balance will be forfeited to the AGENCY and he will
have no further right to the deferred compensation.
4. Lapse of Risk of Forfeiture
If the Employee's employment with the AGENCY or a Successor
Employer terminates because of retirement according to the provisions
of the applicable pension plan, or because of Death or Disability, the
risk of forfeiture described in Section 3 above shall lapse and the
Employees account balance shall be fully vested with the Employee and
distributed to him or his designated beneficiary within sixty (60) days
of termination in the form designated in Section 16 of this agreement.
5. No Segregation of Deferred Compensation
Nothing contained herein shall be deemed to create a trust
of any kind or create any fiduciary relationship.. Any funds which (at
the election of the AGENCY) may actually be credited to the account of
the Employee shall continue for all purposes to be part of the general
funds of the AGENCY, and no person other than the AGENCY, by virtue of
the provisions of this Agreement shall have any interest in such funds.
To the extent that any person acquires a right to receive payments from
the AGENCY under this Agreement, such rights shall be no greater than
the right of any unsecured or general creditor of the AGENCY.
6. Administration
The books and records to be maintained for the purpose of
the Agreement shall be maintained by the AGENCY. All the expenses of
administering the Agreement shall be paid at the sole determination
of the AGENCY. The Employee agrees to provide at such times and in
such manner as may be requested by the AGENCY, such information as may
be necessary for the AGENCY to prepare any reports required by the
Internal Revenue Service, the Department of Labor, or any other
governmental agency authorized to receive such information.
7. Interest Not Assignable
To the extent permitted by law, the interest of the Employee
in any deferred Compensation hereunder shall not be subject in any
manner to attachment or other legal process for the debts of the
Employee, nor shall the Employee's interest be subject to anticipation,
alienation, transfer, assignment or encumbrance.
8. Amendment of Agreement
The Agreement may only be amended or revoked by written
agreement of the AGENCY and the Employee.
9. No Employment Contract
This Agreement shall not be deemed to constitute a contract
of employment between the AGENCY and the Employee, nor shall any
provision hereof restrict the right of the AGENCY to discharge the
Employee for just cause or of the Employee to voluntarily terminate
his employment.
10. In Case of the Employee's Death
Distribution shall be made to Employee's surviving spouse,
or if there is no surviving spouse, to his estate. No other beneficiary
designation shall be valid unless it is in writing and signed by the
Employee and his spouse (if married), dated and filed with the AGENCY.
11. Disability
In the event the Employee, prior to retirement becomes
disabled, then the Employee or his lawful guardian shall upon written
request, be entitled to receive the account balance as provided in
Section 16.
12. Applicable Law
This Agreement shall be construed, administered and
enforced according to the laws of the State of California provided
however, that it is intended that this Agreement create a deferred
compensation arrangement which complies with the requirements of the
1986 Internal Revenue Code Section 457(f) and this Agreement shall
be so construed and limited and the powers hereunder exercised so as
to accomplish this purpose.
13. Pronouns
Whenever used in this Agreement, the masculine pronoun is
to be deemed to include the feminine. The singular form, whenever
used herein, shall mean or include the plural form where applicable
and vice versa.
14. Notices
Any notice, accounting or other communication which the
AGENCY may give the Employee shall be deemed given when mailed to
the Employee at the latest address which has been furnished to the
AGENCY. Any notice or other communication which the Employee may
give to the AGENCY shall not become effective until actual receipt of
said notice by the AGENCY.
15. Separability
If any provision of this Agreement shall be for any reason
invalid or unenforceable, the remaining provisions shall, nevertheless,
continue in effect and shall not be invalidated thereby unless they are
rendered unconscionable, inadequate or incapable of being interpreted
as a result of the invalid or unenforceable provisions of the
Agreement.
16. Form of Payment
The AGENCY at its sole determination shall pay the deferred
compensation in one or more of the methods designated below:
a. Lifetime Annuity or payments over assumed lifetime.
b. Monthly Installments up to ten (10) years.
C. Lump Sum.
17. Arbitration
If the Employee, beneficiaries or lawful representative
dispute benefit denial based upon completed performance of the agreement
or meaning and effect of the terms and conditions thereof, then the
claimants may submit the dispute to a Board of Arbitration. Said Board
shall consist of one member selected by the -Employee, his beneficiaries
or lawful representative; another selected by the AGENCY; and a third
member selected by the first two members. The Board shall operate under
any general recognized set of arbitration rules. The parties hereto
agree and acknowledge that they and their heirs, successors, and
assignees shall be bound by the decisions of such Board with respect
to any controversy properly submitted to it for determination.
Passed and Adopted this of , 1988.
im
/I/ IzA,
BY y4
j