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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