§ 62-165. Miscellaneous.

(a)

Conditions of employment not affected by plan. Nothing contained in this division shall be construed as a contract of employment between the city and any employee, or as a right of an employee to be continued in the employment of the city; nor shall it interfere with the right of the city to discharge any of its employees, with or without cause, or to treat them without regard to the effect that treatment might have on the employee as a participant or potential participant in the plan.

(b)

Rights to trust assets. No employee or beneficiary shall have any right to, or interest in, any assets of the trust upon termination of his employment or otherwise, except as provided from time to time under this plan, and then only to the extent of the benefits payable under the plan to such employee or beneficiary out of the assets of the trust. All payments of benefits as provided for in this plan shall be made solely out of the assets of the trust, and none of the fiduciaries shall be liable therefor in any manner.

(c)

Non-alienation of benefits. Except as provided in subsection (d) of this section, benefits payable under this plan shall not be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, charge, garnishment, execution, or levy of any kind, either voluntary or involuntary, prior to actually being received by the person entitled to the benefit under the terms of the plan; and any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, charge or otherwise dispose of any right to benefits payable under this division, shall be void. The trust shall not in any manner be liable for, or subject to, the debts, contracts, liabilities, engagements or torts of any person entitled to benefits under this division.

(d)

Qualified domestic relations order. Notwithstanding subsection (c) of this section, amounts may be paid to an alternate payee with respect to a participant pursuant to a domestic relations order, but if and only if the order is determined to be a qualified domestic relations order within the meaning of section 414(p) of the code.

(e)

Incompetency of payee. If any benefit is payable to a minor or incompetent, to a person otherwise under legal disability, or to a person who, in the sole judgment of the plan administrator, is by reason of advanced age, illness, or other physical or mental incapacity, incapable of handling the disposition of his property, the plan administrator may apply the whole or any part of such benefit directly to the care, comfort, maintenance, support, education, or use of such person or pay or distribute the whole or any part of such benefit to:

(1)

The parent of such person;

(2)

The guardian, committee, or other legal representative, wherever appointed, of such person;

(3)

The person with whom such person resides;

(4)

Any person having the care and control of such person; or

(5)

Such person personally.

The receipt by the person to whom any such payment or distribution is so made shall be full and complete discharge of the liabilities of the plan for that benefit. Furthermore, if the plan administrator receives, on behalf of a participant, a power of attorney with respect to such participant valid under state law, the plan administrator shall comply with the instructions of the named attorney to the same extent the plan administrator would comply with such instructions if given by the participant and such instructions are consistent with the power of attorney.

(f)

Inability to locate payee. Anything to the contrary in this division notwithstanding, if the plan administrator is unable, after reasonable effort, to locate any participant or beneficiary to whom an amount is payable under this division, such amount shall be canceled on the records of the plan and the amount thereof shall be applied to reduce the city's contributions to the plan. Upon such cancellation, the plan and trust shall have no further liability therefor. However, such amount shall be reinstated, by means of an additional city contribution, and paid to the participant or beneficiary in accordance with the terms of the plan if and when a claim for the canceled amount is subsequently made by the participant or beneficiary. To the extent not inconsistent with applicable law, any benefits lost by reason of escheat under applicable state law shall be considered forfeited and shall not be reinstated.

(g)

City records. Records of the city as to an employee's or participant's period of service, termination of service and the reason therefor, leaves of absence, re-employment, and earnings will be conclusive on all persons, unless determined to be incorrect.

(h)

Erroneous allocation. Notwithstanding any provision of the plan to the contrary, if a participant's account is credited with an erroneous amount due to a mistake of fact or law, the plan administrator shall adjust such account in such equitable manner as it deems appropriate to correct the erroneous allocation.

(i)

Written elections. Any elections, notifications or designations made by a participant pursuant to the provisions of the plan shall be made in writing and filed with the plan administrator or the service provider, as the case may be, in a time and manner determined by the plan administrator under rules uniformly applicable to all employees similarly situated. The plan administrator reserves the right to change from time to time the time and manner of making notifications, elections and designations by participants under the plan if it determines after due deliberation that such action would improve the administration of the plan. In the event of a conflict between the provisions for making an election, notification or designation set forth in the plan and such new administrative procedures, those new administrative procedures shall prevail.

(j)

Electronic transmission of notices. Notwithstanding anything in this division to the contrary, any notice required to be distributed to participants, beneficiaries or alternate payees pursuant to the terms of the plan may, at the discretion of the plan administrator, be transmitted electronically to the extent permitted by, and in accordance with any procedures set forth in, applicable laws and regulations.

(k)

Applicable law. The plan shall be construed under the laws of the state, except to the extent superseded by federal law. The plan is established with the intent that it meets the requirements under the code. The provisions of this plan shall be interpreted in conformity with these requirements. In the event of any conflict between the plan and a policy or contract issued under this division, the plan provisions shall control; provided, however, no plan amendment shall supersede an existing policy or contract unless such amendment is required to maintain the plan's stature as an eligible plan under section 457(b) of the code or its status as an eligible city under section 457(e)(1)(A) of the code.

(l)

It is intended that pursuant to code § 457, the amount deferred shall not be considered current compensation for purposes of federal income taxation except to the extent that the amount deferred is designated Roth contributions. This rule shall also apply to state income taxation unless applicable state laws provide otherwise. Such amounts shall, however, be included as compensation to the extent required under the Federal Insurance Contributions Act (FICA). Payments under this plan shall supplement retirement and death benefits payable under the employer's group insurance and retirement plans, if any.

(Ord. No. 4319-11, § 1, 2-22-2011; Ord. No. 4544-15, § 5, 4-27-2015)