HomeMy WebLinkAboutBocc Packet 09252013 County Retirement PlanAGENDA ITEM SUMMARY
REGULAR MEETING DATE: September 25, 2013
AGENDA ITEM TITLE:
STAFF RESPONSIBLE:
Restatement of the Pitkin County Public Employees'
Retirement Plan
Tom Oken, County Treasurer and Chairman of the
Retirement Board
ISSUE STATEMENT: The Board needs to approve the amendment and restatement of the
retirement plan to comply with statutory and regulatory changes.
BACKGROUND: The Board first adopted the Pitkin County Public Employees' Retirement
Plan (hereinafter the "Plan"), effective January 1, 1983. Every five years the Plan needs to
be amended and restated to incorporate statutory and regulatory changes, and then
resubmitted to the Internal Revenue Service for approval. The Plan was most recently
restated effective January 1, 2008, and is now due for another restatement effective January
1, 2013. Sherman & Howard L.L.C., our outside counsel for the retirement plan, has drafted
the restated Plan to comply with the IRS' Cumulative List of Changes, the Colorado Civil
Union Act, and the Supreme Court's recent decision on the Defense of Marriage Act. Also
incorporated, at the request of the County's Human Resource Director, is the exclusion from
the plan of limited -tern employees, defined as those in positions which are budgeted or
funded for two years or less. The HR Director felt that it wasn't worthwhile to take these
employees out of social security and into our plan for such a short time period (employees do
not begin to participate in the plan until they have been employed for six months).
LINK TO STRATEGIC PLAN: Prosperous Economy Core Focus Area- Success Factor 3:
High performing County leaders, teams and employees
Potential Actions: Attract, develop, motivate and retain a competent, high performing and
diverse County workforce
KEY DISCUSSION ITEMS: None.
BUDGETARY IMPACT: None. The attorney's fees to restate the plan are paid from
retirement plan forfeits (the unvested share of terminating participants' accounts).
RECOMMENDED BOCC ACTION: Approve the resolution as a consent action.
ATTACHMENTS:
• Resolution Approving the Amendment and Restatement of the Pitkin County Public
Employees' Retirement Plan
• Amendment Restating the Pitkin County Public Employees' Retirement Plan
• Pitkin County Public Employees' Retirement Plan as amended effective January 1,
2013
RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO,
APPROVING THE AMENDMENT AND RESTATEMENT OF THE PITKIN COUNTY
PUBLIC EMPLOYEES' RETIREMENT PLAN
RESOLUTION NO. -2013
RECITALS
1. Pitkin County (hereinafter the "County") entered into and executed the Pitkin County Public
Employees' Retirement Plan (hereinafter the "Plan"), effective January 1, 1983.
2. Section 10.4 of the Plan provides in part as follows:
"At any time the County may amend this Plan and Trust by action of the [Retirement]
Board with the approval of the County Board of Commissioners ..."
3. The County now desires to amend and restate the Plan to comply with statutory and
regulatory changes since it last restated the Plan.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Pitkin
County, Colorado, that the the attached amendment and restatement of the Pitkin County Public
Employees' Retirement Plan, effective January 1, 2013, is hereby approved.
INTRODUCED, READ, AND ADOPTED ON THE 25TH DAY OF SEPTEMBER, 2013.
ATTEST: BOARD OF COUNTY COMMISSIONERS
By:
Jeanette Jones George Newman, Chairman
Deputy County Clerk
Date:
APPROVED AS TO FORM: MANAGER APPROVAL:
John Ely, County Attorney Jon Peacock, County Manager
RESTATEMENT OF THE
PITKIN COUNTY PUBLIC EMPLOYEES' RETIREMENT PLAN
THIS AMENDMENT is made this'- day of
Pitkin County (subsequently called "County").
RECITALS
2013, by
A. The County entered into and executed the Pitkin County Public
Employees' Retirement Plan (subsequently called "Plan"), effective January 1, 1983.
B. The County last restated the Plan, effective January 1, 2008.
C. Section 10.4 of the Plan provides in part as follows: "At any time the
County may amend this Plan and Trust by action of the Board with the approval of the County
Board of Commissioners...."
D. The County now desires to amend the Plan to comply with the Internal
Revenue Service requirement that the Plan be amended and restated in its entirety to address
certain technical changes to the Plan under the Internal Revenue Code of 1986, as amended, and
to submit the Plan for a favorable determination letter.
NOW THEREFORE, BE IT RESOLVED, that the restatement of the Pitkin County
Public Employees' Retirement Plan attached hereto as Exhibit A is hereby approved and
adopted, effective January 1, 2013.
IN WITNESS WHEREOF, the Pitkin County Employees' Retirement Board has
executed this restatement as of the date first above written.
PITKIN COUNTY PUBLIC EMPLOYEES'
RETIREMENT BOARD
By: j
Date: q"' 13
PITKIN COUNTY BOARD OF COUNTY
COMMISSIONERS
By: Date:
TAX/1334043.I
1
PITKIN COUNTY PUBLIC
EMPLOYEES' RETIREMENT PLAN
AS AMENDED EFFECTIVE JANUARY 1, 2013
TAXI l356984.2
TABLE OF CONTENTS
ARTICLE 1 NAME AND PURPOSE OF PLAN AND TRUST 1
ARTICLE 2 DEFINITIONS 1
ARTICLE 3 PARTICIPATION 3
3.1 WHO MAY BECOME A PARTICIPANT 3
3.2 EFFECT OF A BREAK IN SERVICE 3
3.3 MILITARY SERVICE 4
ARTICLE 4 CONTRIBUTIONS
4
4.1 DETERMINATION OF CONTRIBUTION BY THE COUNTY 4 •
4.2 DETERMINATION OF PARTICIPANTS TO SHARE IN COUNTY CONTRIBUTION
4.3
4.4
4.5
4.6
ROLLOVER CONTRIBUTIONS
4
4
LIMITATION ON ANNUAL ADDITIONS 5
RETURN OF COUNTY CONTRIBUTIONS 6
COUNTY'S OBLIGATIONS 7
ARTICLE 5 DETERMINATION AND VESTING OF PARTICIPANTS' ACCOUNTS 7
5.1 DETERMINATION OF PARTICIPANTS' ACCOUNTS 7
5.2 VESTING OF PARTICIPANTS' ACCOUNTS 8
5.3 FULL VESTING UPON TERMINATION OF PLAN 8
5.4 SERVICE INCLUDED IN DETERMINATION OF VESTED ACCOUNTS 8
5.5 EFFECT OF BREAK IN SERVICE ON VESTING 9
ARTICLE 6 RETIREMENT DATE -DESIGNATION OF BENEFICIARY 9
6.1 RETIREMENT DATE 9
6.2 DESIGNATION OF BENEFICIARY 9
6.3 PARTICIPANT OR BENEFICIARY WHOSE WHEREABOUTS ARE UNKNOWN 9
ARTICLE 7 DISTRIBUTION FROM TRUST FUND 10
7.1 WHEN ACCOUNTS BECOME DISTRIBUTABLE AND EFFECT OF DISTRIBUTION 10
7.2 DISTRIBUTION OF ACCOUNTS 10
7.3 MINIMUM DISTRIBUTIONS 12
7.4 DISPOSITION OF FORFEITABLE ACCOUNT ON TERMINATION OF EMPLOYMENT 17
7.5 NONALIENATION OF BENEFITS 17
7.6 LOANS TO PARTICIPANTS 17
7.7 QUALIFIED DOMESTIC RELATIONS ORDERS 18
ARTICLE 8 ADMINISTRATION 18
8.1 APPOINTMENT OF BOARD 18
8.2 ORGANIZATION AND OPERATION OF BOARD 19
8.3 INFORMATION TO BE MADE AVAILABLE TO BOARD 19
8.4 GENERAL DUTIES AND POWERS OF BOARD 19
8.5 EMPLOYMENT OF ADVISERS AND PERSONS TO CARRY OUT RESPONSIBILITIES 19
8.6 KEEPING OF RECORDS 19
8.7 COMPENSATION AND EXPENSES 20
8.8 CLAIMS PROCEDURE 20
TAX/1356984.2
ARTICLE 9 POWERS AND DUTIES OF THE TRUSTEE 21
9.1 INVESTMENT OF TRUST FUND 21
9.2 ADMINISTRATIVE POWERS OF THE TRUSTEE 22
9.3 ADVICE OF COUNSEL 23
9.4 RECORDS AND ACCOUNTS OF THE TRUSTEE 23
9.5 APPOINTMENT, RESIGNATION, REMOVAL AND SUBSTITUTION OF TRUSTEE 23
9.6 APPOINTMENT OF TRUSTEE --ACCEPTANCE IN WRITING 23
9.7 INVESTMENT MANAGER 23
ARTICLE 10 CONTINUANCE, TERMINATION, AND AMENDMENT OF PLAN AND TRUST 24
10.1 TERMINATION OF PLAN AND TRUST 24
10.2 MERGER, CONSOLIDATION, OR TRANSFER OF ASSETS OR LIABILITIES OF THE
PLAN 24
10.3 DISTRIBUTION UPON TERMINATION OF TRUST 24
10.4 AMENDMENTS TO PLAN AND TRUST 24
ARTICLE 11 MISCELLANEOUS 25
11.1 BENEFITS TO BE PROVIDED SOLELY FROM THE TRUST FUND 25
11.2 NOTICES FROM PARTICIPANTS TO BE FILED WITH BOARD 25
11.3 TEXT TO CONTROL 25
11.4 SEVERABILITY 25
11.5 JURISDICTION 25
11.6 PLAN FOR EXCLUSIVE BENEFIT OF PARTICIPANTS: REVERSION PROHIBITED 25
TAX/1356984,2
ARTICLE 1
NAME AND PURPOSE OF PLAN AND TRUST
The County, by execution of this agreement, amends and restates a qualified money purchase
plan and trust, to be known as the Pitkin County Public Employees' Retirement Plan to provide retirement
benefits for its employees. The plan and trust fund are created for the exclusive benefit of employee -
participants and their beneficiaries. The plan is intended to qualify under Section 401(a) of the Code, and
the trust created under the plan is intended to be exempt under Section 501(a) of the Code.
ARTICLE 2
DEFINITIONS
When used herein, the following words shall have the following meanings, unless the context
clearly indicates otherwise:
2.1 "Account," unless otherwise indicated, means a participant's entire interest in the trust fund
created by the County's contributions and the income, expenses, gains, and losses attributable to such
contributions.
2.2 "Beneficiary" means the person who, under this Plan, becomes entitled to receive a Participant's
Account upon his death.
2.3 `Break in Service" for purposes of vesting means a period of severance of 45 days or longer.
2.4 `Board" means the Pitkin County Public Employees' Retirement Board.
2.5 "Civil Union Partner" means the person with whom the Participant has entered into a legally
valid civil union, as of the earlier of the date benefit payments to the Participant commence under the Plan
or the Participant's date of death. The Board may require documentation of a legal civil union before
benefits are paid to a surviving Civil Union Partner. A Civil Union Partner shall not be treated as a
Spouse under this Plan unless expressly provided in the Plan.
2.6 "Code" means the Internal Revenue Code of 1986, as it presently is constituted, as it may be
amended, or any successor statute of similar purpose.
2.7 "Compensation" means the total of all salaries, wages, overtime, bonuses, and other similar
compensation paid to a Participant by the County for personal services rendered during the year.
Effective for Plan Years beginning before January 1, 1996, and on or after January 1, 2002, the
annual Compensation of each Participant taken into account under the Plan for any year shall not exceed
$200,000, as adjusted for cost -of -living increases in accordance with Section 401(a)(17)(B) of the Code
(currently $255,000 in 2013). For any Participant who became a Participant on or before December 31,
1995, the maximum annual Compensation will be the adjusted annual Compensation amount allowed to
be taken into account under the Plan as of July 1, 1993, which shall not be less than $235,840, and shall
be adjusted by the Secretary of the Treasury for increases in cost of living in accordance with Section
401(a)(17)(B) of the Code (currently $380,000 in 2013).
Annual Compensation means compensation during the Plan Year or such other consecutive 12-
month period over which Compensation is otherwise determined (the determination period). The cost-of-
1.
TAXI I356984.2
living adjustment in effect for a calendar year applies to any period, not exceeding 12 months, over which
Compensation is determined that begins in the calendar year. If a determination period consists of fewer
than 12 months, the annual Compensation limit will be multiplied by a fraction, the numerator of which is
the number of months in the determination period, and the denominator of which is 12.
2.8 "County" means Pitkin County, Colorado, a political subdivision of the State of Colorado.
2.9 "Effective Date" of this Plan means January 1, 1983. "Effective Date" of this restated plan
means January 1, 2013, except as otherwise expressly provided in this Plan or under the requirements of
law.
2.10 "Employee" means any person now or hereafter in the employ of the County, including elected
officials of the County, but excluding part-time, seasonal, and limited -term employee, and independent
contractors and leased employees.
For purposes of the Plan and this Section 2.9, "part-time employee" means any person whose
customary employment is for not more than 20 hours in any one week. "Seasonal employee" means any
person whose customary employment is for not more than five months in any calendar year. "Limited -
term" employee means, for Plan Years beginning on or after January 1, 2013, any person whose
customary employment is in a position which is budgeted and/or funded for two years or less. "Leased
employee" means for Plan Years beginning after December 31, 1996, any person (other than an
Employee of the County) who has performed services for the County (or for the County and related
persons as determined under Section 414(n)(6) of the Code) under an agreement between the County and
the leasing organization on a substantially full-time basis for a period of at least one year and the services
are performed under the primary direction or control of the County. Any leased employee will be treated
as an employee of the County for purposes of this Plan and any contributions or benefits provided by the
leasing organizations that are attributable to the services performed for the County will be treated as
provided under a plan maintained by the County, provided, however, that a leased employee will not be
treated as employed by the County if the leased employee is covered by a money purchase pension plan
maintained by the leasing organization that provides [a] a nonintegrated employer contribution of at least
10% of compensation, as defined in Section 415(c)(3) of the Code, including amounts contributed
pursuant to a salary reduction agreement that are excludable from the employee's gross income under
Sections 125, 132(f)(4), 402(e)(3), 402(h)(1)(B) or 403(b) of the Code; [b]. immediate participation
(unless the individual has had compensation of less than $1,000 in each of the preceding four plan years
ending with the current Plan Year); and [c] full and immediate vesting. In addition, leased employees
may not constitute more than 20 percent of the County's non -highly compensated employees.
2.11 "Normal Retirement Date" means the earlier of: (i) the date a Participant attains age 65,
provided, however, that for a Participant who becomes a Participant after attaining age 60, "Normal.
Retirement Date" means the date such Participant has completed a five-year Period of Service; or (ii) the
date a Participant becomes 100% vested in his account pursuant to Section 5.2[b].
2.12 "Participant" means any Employee who has become a Participant under this Plan. Participation
shall cease upon distribution of a Participant's entire vested Account and forfeiture of a Participant's
entire nonvested Account after (or if a Participant . has no vested Account then upon) termination of
employment because of retirement, death, total disability, or termination of employment for any other
reason.
2.13 "Period of Service" means a period beginning on the date a Participant's employment or
reemployment by the County as an Employee commences and ending on the date a Period of Severance
begins. Such term shall also include any Period of Service performed by such Employee for any other
2
TAX/1356984.2
government entity participating in a reciprocal or cooperating arrangement with the County whereby
County employees would be credited with service under such government entity's retirement program.
Effective for reinstatement of employment initiated after December 12, 1994, notwithstanding any
provision of this Plan to the contrary, contributions, benefits and service credit with respect to Qualified
Military Service will be provided in accordance with Code Section 414(u).
2.14 "Period of Severance" means a period beginning on the date a Participant's employment as an
Employee terminates for any reason and ending on the date the Participant's reemployment as an
Employee commences.
2.15 "Plan" and "Plan and Trust" mean the ]Honey purchase plan and trust set forth in and by this
document and all subsequent amendments to it.
2.16 "Plan Year" means the calendar year and this shall be the fiscal year of the trust established under
this Plan.
2.17 "Qualified Military Service" means any service in the uniformed services (as defined in Chapter
43 of Title 38, United States Code) by an individual if such individual is entitled to reemployment rights
under such chapter with respect to such service.
2.18 "Surviving Spouse" or "Spouse" shall mean the person who is legally married, as determined
under the Code, to the Participant as of the earlier of the date benefit payments to the Participant
commence under the Plan or the Participant's date of death. The Board may require proof of marital status
before benefits are paid to a Surviving Spouse.
2.19 "Total Disability" means a Participant's inability as a result of sickness, accidental bodily injury,
or similar circumstances to work at such Participant's job for a period in excess of six months. Such
inability shall be determined by the County Manager after consultation with appropriate medical sources.
2.20 "Trustee" means the person or persons appointed by the Board as the trustee of the trust fund
established by this Plan and Trust and any duly appointed and qualified successor trustee.
2.21 "Trust Fund" means the assets of the trust established by this Plan and Trust from which the
benefits under this Plan shall be paid and shall include all income of any nature earned by the fund and all
changes in fair market value.
2.22 The masculine gender shall include the feminine, and the singular shall include the plural.
ARTICLE 3
PARTICIPATION
3.1 WHO MAY BECOME A PARTICIPANT: As of the Effective Date of this Amended and
Restated Plan, all Employees of the County who have completed a Period of Service of six months or
longer shall be enrolled as Participants of this Plan. Any new Employee of the County shall be enrolled
as a Participant of this Plan as of the first day of the pay period during which he has completed a Period of
Service of six months.
3.2 EFFECT OF A BREAK IN SERVICE: For purposes of determining eligibility to participate,
service before a Break in Service shall not be counted.
3
TAX/1356984,2
3.3 MILITARY SERVICE: Notwithstanding any provision of this Plan to the contrary, the
following provisions shall apply:
[a] Contributions, benefits and service credit with respect to Qualified Military Service will be
provided in accordance with and to the extent required by Code Section 414(u);
[b] Effective for years beginning on or after January 1, 2009, [A] an individual receiving a
differential wage payment, as defined in Code Section 3401(h)(2), shall be treated as an employee
of the employer making the payment; [B] the differential wage payment shall be treated as
compensation for purposes of Code Section 415 and any other Code Section that references the
definition of Compensation under Code Section 415; and [C] the Plan shall not be treated as
failing to meet the requirements of any provision described in Code Section 414(u)(1)(C) by
reason of any contribution or benefit which is based on the differential wage payment. This
paragraph [b] applies only if all employees of the Employer performing service in the uniformed
services described in Code Section 3401(h)(2)(A) are entitled to receive differential wage
payments on reasonably equivalent terms and, if eligible to participate in the Plan, to make
contributions based on the differential wage payments on reasonably equivalent terms; and
[c] If a Participant dies while performing Qualified Military Service, the survivors of the Participant
are entitled to any additional benefits (other than benefit accruals relating to the period of
Qualified Military Service) provided under the Plan as if the Participant had resumed
employment with the County and then died.
ARTICLE 4
CONTRIBUTIONS
4.1 DETERMINATION OF CONTRIBUTION BY THE COUNTY: The County shall make
contributions to the Trust Fund for calendar year 1983 for each Participant equal to 12.26% of each
Participant's compensation for such year. Thereafter, the County shall make contributions for each year
for each Participant equal. to 14% less a percentage amount determined as follows: estimated total cost of
premiums for life insurance, accidental death and dismemberment, survivor and disability coverage
divided by estimated total compensation of all Participants for such year. Any forfeitures caused by
termination of employment that are in excess of plan expenses shall be applied to reduce County
contributions. The County shall make payment of its contributions within 10 days after the end of each
month. The County's contribution for any Plan Year shall be paid to the Trustee and shall become a part
of the Trust Fund. Such contribution shall be made in cash.
4.2 DETERMINATION OF PARTICIPANTS TO SHARE IN COUNTY CONTRIBUTION: A
Participant will be entitled to his share in the contribution of the County for any Plan Year.
4.3 ROLLOVER CONTRIBUTIONS: The Plan may, after publication of rollover contribution
procedures by the Board, accept participant rollover contributions and/or direct rollovers of distributions
made after December 31, 2001, from a qualified plan described in Sections 401(a) or 403(a) of the Code;
an annuity contract described in Section 403(b) of the Code; or an eligible plan under Section 457(b) of
the Code which is maintained by a state, political subdivision of a state, or any agency or instrumentality
of a state or political subdivision of a state; and may, after publication of rollover contribution procedures
by the Board, accept a participant rollover contribution of the portion of a distribution from an individual
retirement account or annuity described in Sections 408(a) or 408(b) of the Code that is eligible to be
rolled over and would otherwise be includible in gross income.
4
'1'AX/1356984.2
4.4 LIMITATION ON ANNUAL ADDITIONS:
[a] Definitions: For purposes of this Section 4.4, the following terms will be defined as follows:
(1) "Annual addition" means the sum of the County contributions and forfeitures allocated to
a Participant's Account during any limitation year. Annual additions will not include [A]
catch-up contributions made in accordance with Section 41.4(v) of the Code; [B] a
restorative payment (as defined in Section 1.415(c)-1(b)(2)(ii)(C) of the Treasury
Regulations); [C] excess deferrals that are distributed in accordance with Section
1.402(g)-1(e)(2) or (3) of the 'Treasury Regulations; [D] rollover contributions described
in Sections 402(c)(1), 403(a)(4), 403(b)(8), 408(d)(3) and 457(e)(16) of the Code; [E] a
direct transfer of a benefit or employee contributions from a qualified plan to this plan;
[D] repayments of loans made to a Participant from the Plan; [E] repayments of
contributions to a government plan (as described in Section 415(k)(3) of the Code), as
well as employer restoration of benefits that are required pursuant to the repayments; and
[F] Employee contributions to a qualified cost of living arrangement within the meaning
of Section 415(k)(2)(B) of the Code. Any excess amount used to reduce County
contributions under this Section will be treated as annual additions for such limitation
year.
(2) "Compensation" for purposes of limiting annual additions and combined benefits and
contributions under this Section, means a Participant's earned income, wages, salaries,
fees for professional service and other amounts received for personal services actually
rendered in the course of employment with the County (including, but not limited to,
commissions paid salesmen, compensation for services on the basis of a percentage of
profits, commissions on insurance premiums, tips, and bonuses) and excluding the
following:
[A] County contributions to a plan of deferred compensation to the extent
contributions are not included in gross income of the Employee for the taxable
year in which contributed;
[B] County contributions on behalf of an Employee to a Simplified Employee
Pension Plan to the extent such contributions are deductible under Section
219(b)(7) of the Code;
[C] any distributions from a plan of deferred compensation whether or not includable
in the gross income of the Employee when distributed; or
[D] other amounts which receive special tax benefits, or contributions made by the
County (whether or not under a salary reduction agreement) towards the purchase
of a 403(b) annuity contract (whether or not the contributions are excludable
from the gross income of the employee).
For purposes of this Section 4.4, compensation for a limitation year includes only
the compensation that is actually paid to the Participant during the limitation year
and compensation that is includable in the Participant's gross income during the
limitation year. "Compensation" for purposes of this paragraph shall include
Participant salary deferral contributions described in Section 402(g)(3) of the
Code, any amounts which are not included in the Participant's gross income by
reason of Sections 125 (cafeteria plans) and 457 (deferrals to governmental
5
TAX/1356984.2
(3)
plans) of the Code, and elective amounts that are not includable in the gross
income of the Participant by reason of Section 132(0(4). Deemed Section 125
compensation (within the meaning of Section 1.415(c)-2(g)(6)(ii) of the Treasury
Regulations) will not be counted for purposes of determining amounts not
included in the Participant's gross income by reason of Section 125 of the Code).
For limitation years beginning on or after January 1, 2005, payments made within
two -and -one-half months after a Participant's severance from employment
(within the meaning of Section 401(k)(2)(B)(i)(I) of the Code) will constitute
compensation under this paragraph if such payments would have been paid to the
Participant prior to and absent his or her severance from employment and if such
payments represent: [1] remuneration for services performed by the Participant
during the Participant's regular working hours; [II] remuneration for services
performed by the Participant outside the Participant's regular working hours; [III]
commissions; [IV] bonuses or similar remuneration; and [V] accrued bona fide
sick, vacation, or other leave, but only if the Participant would have been able to
use the leave if he or she had continued employment. Payments not described
above in [I] through [V] of the preceding sentence do not constitute
"Compensation" under this paragraph even if paid within two -and -one-half
months following a Participant's severance from employment except for
payments to an individual not currently performing services for the County by
reason of Qualified Military Service to the extent such payments do not exceed
the amounts the individual would have received if the individual had continued to
perform services for the County in lieu of entering Qualified Military Service.
"Limitation year" means the Plan Year.
[b] Limitation on Annual Addition: The annual addition to the account of any Participant attributable
to all defined contribution plans (including money purchase pension plans, and profit-sharing
plans, of the County) may not exceed (notwithstanding catch-up contributions permitted under
Section 414(v) of the Code) the lesser of [1] $40,000 (as adjusted cost of living increases under
Section 415(d) of the Code), or [2] 100% of such Participant's compensation (except that the
limit referred to in this clause [2] shall not apply to any contribution for medical benefits after a
Participant's separation from service within the meaning of Sections 401(h) or 419A(f)(2) of the
Code which otherwise would be treated as an annual addition). If this limit is exceeded, then the
excess amount will be disposed of in a manner determined by the County. One option may
include in accordance with the Employee Plans Compliance Resolution System, as set forth in
Revenue Procedure 2013-12, or any superseding guidance, including, but not limited to, the
preamble of the final regulations issued under Section 415 of the Code.
4.5 RETURN OF COUNTY CONTRIBUTIONS: A contribution by the County to the Plan shall be
returned to the County, at the County's discretion, under any of the following circumstances:
[a]
If a contribution is made by the County by a mistake of fact, including a mistaken excess
contribution, within one year of its payment to the Plan; or
[b] If qualification of the Plan is denied, within one year after the date of denial of qualification of
the Plan.
The County shall state by written request to the Trustee the amount of the contribution to be returned and
the reason for such return. Such amount shall not include any earnings attributable to the contribution and
shall be reduced by any losses attributable to the contribution. Upon sending such request to the Trustee,
6
TAX/1356984.2
the County simultaneously shall send to the Board a copy of the request. The Trustee shall return such
contribution to the County immediately upon receipt of the written request by the County. All
contributions by the County to the Plan are declared to be conditioned upon the qualification of the Plan
under Section 401 of the Code.
4.6 COUNTY'S OBLIGATIONS: The adoption and continuance of the Plan shall not be deemed to
constitute a contract between the County and any Employee or Participant, nor to be a consideration for,
or inducement or condition of, the employment of any person. Nothing in this Plan shall be deemed to
give any Employee or Participant the right to be retained in the employ of the County, or to interfere with
the right of the County to discharge any Employee at any time, nor shall it be deemed to give the County
the right to require the Employee to remain in its employ, nor shall it interfere with the right of any
Employee to terminate his employment at any time.
ARTICLE 5
DETERMINATION AND VESTING OF
PARTICIPANTS' ACCOUNTS
5.1 DETERMINATION OF PARTICIPANTS' ACCOUNTS:
[a] Participants' Accounts: The Board shall maintain an Account for each Participant showing the
dollar value of his current Account in the Trust Fund, as of each valuation date, attributable to
any contributions made by the County and posted to the Participant's Account and net earnings
on such contributions. The Board shall distribute, or cause to be distributed, to each Participant at
least annually a written statement setting forth the current value of such Participant's Account and
such other information as the Board shall determine.
[b] Valuation:
(1) Valuation Dates: The valuation dates of the Trust Fund shall be each business day of the
Plan Year.
(2) Valuation of Participant Accounts: As of each Valuation Date net earnings, losses, and
changes in the fair market value of each separate investment fund available under the
Plan will be computed and allocated on an investment fund basis to the Participants in the
ratio that the total dollar value of the interest (whether or not vested) of each Participant
in each investment fund, including the portions resulting from posted contributions, bears
to the aggregate dollar value of all such Participants in each investment fund as of the last
previous valuation date.
[c] Allocation of County Contributions and Forfeitures: At least annually as of the last day in each
Plan Year, and more frequently as the Board may determine, the Board shall allocate to the
Accounts of Participants any amounts contributed by the County to the Trust Fund for the period
then ended in the manner provided in Section 4.1. Forfeitures used to reduce County
contributions shall be allocated along with County contributions.
[d] Suspense Account for Unallocated Forfeitures: In the event that the amount of forfeitures used to
reduce the County's contributions and to be allocated to any Participant's Account would exceed
the annual addition limitations, a separate suspense account shall be established to hold such
unallocated forfeitures for any year or years provided that:
7
TAX/1356984.2
(1) no County contributions may be made at any time when their allocation would be
precluded by Section 415 of the Code;
(2) investment gains and losses and other income are not allocated to the suspense account;
and
(3) the amounts in the suspense account are allocated under Section 5.1[c] as of each
allocation date on which forfeitures may be allocated until the suspense account is
exhausted.
In the event of Plan termination, the balance of such suspense account may revert to the County.
5.2 VESTING OF PARTICIPANTS' ACCOUNTS:
[a] General Rules: If any Participant reaches his Normal Retirement Date, dies, or suffers total
disability while employed by the County, his entire. Account shall become fully vested without
regard to the length of the Period of Service such Participant has had with the County. Any
Account, whether vested or forfeitable, shall become payable to a Participant or his beneficiaries
only to the extent provided in this Plan. A Participant who has designated a beneficiary and who
dies shall cease to have any interest in this Plan or in his Account, and his beneficiary shall
become entitled to distribution of the Participant's Account under this Plan and not as a result of
any transfer of the interest or Account.
[b] Vesting Schedule: Except as provided in Section 3.2 a Participant shall be vested in the portion of
his Account attributable to County contributions in accordance with the following schedule:
[e]
Percentage of Account
Period of Service Which is Vested
Less than 6 months 0
6 months or more but less than 1 year 50%
1 year or more but less than 2 years 60%
2 years or more but less than 3 years 70%
3 years or more but less than 4 years 80%
4 years or more but less than 5 years 90%
5 years or more 100%
Limitations on Vesting: Any amount returned to the County. under Section 4.4 shall not he
considered a forfeiture in violation of this Section 5.2 even if a resulting adjustment is made to a
Participant's Account that is partly or entirely vested.
5.3 FULL VESTING UPON TERMINATION OF PLAN: Upon the termination or partial
termination of this Plan, the Accounts of all Participants affected, as of the date such termination or
partial termination occurred, shall be fully vested. The temporary suspension of County contributions
shall not constitute a termination or partial termination of this Plan and shall not require full vesting.
5.4 SERVICE INCLUDED IN DETERMINATION OF VESTED ACCOUNTS: All Periods of
Service with the County shall be included for purposes of determining a Participant's vested Account
under Section 5.2, except any Periods of Service excluded by reason of a break in service under
Section 5.5.
8
TAX/1356984.2
5.5 EFFECT OF BREAK TN SERVICE ON VESTING: With respect to a Participant's Account
attributable to County contributions made after any Break in Service, the percentage that is vested shall be
computed without regard to any Period of Service before the break in service.
ARTICLE 6
RETIREMENT DATE --DESIGNATION OF BENEFICIARY
6.1 RETIREMENT DATE: The Normal Retirement Date for each Participant shall be the earlier of
(i) the attainment of age sixty-five (65), provided, however, that the Normal Retirement Date for each
Participant who becomes a Participant at an age above sixty (60) years shall be the date coinciding with
the date that such Participant has completed a five-year Period of Service; or (ii) the date a Participant
becomes 100% vested in his account pursuant to Section 5.2[b]. Any Participant may retire on or after his
Normal Retirement Date. The retirement of any Participant may be deferred, and during such deferment
such Participant shall continue in full participation in the Plan and Trust Fund.
6.2 DESIGNATION OF BENEFICIARY: Each Participant shall designate a beneficiary to receive
his Account in the Trust Fund upon his death on the form prescribed by and delivered to the Board. The
Participant shall have the right to change or revoke a designation at any time by filing a new designation
or notice of revocation with the Board. No notice to any beneficiary nor consent by any beneficiary shall
be required to effect any change of designation or revocation. If a Participant fails to designate a
beneficiary before his death, or if no designated beneficiary survives the Participant, the Board shall
direct the Trustee to pay his Account in the Trust Fund first to his Surviving Spouse or Surviving Civil
Union Partner, if any, next to his descendants by right of representation, if any, or if none, then to his
personal representative. If no personal representative has been appointed, if actual notice of such is given
to the Board within 60 days after the Participant's death, and if his Account does not exceed the minimum
amount for which any applicable tax release is required, or for which a personal representative must be
appointed under applicable state law, the Board may direct the Trustee to pay his Account to such person
as may be entitled to it under the laws of the state where such Participant was domiciled at the date of his
death. In such case, the Board may require such proof of right or identity from such person as the Board
may deem necessary. If his Account exceeds the minimum amount for which any applicable tax release
is required, or for which a personal representative must be appointed under applicable state law, the Board
may direct the Trustee to establish a custodial account for such Participant in a federally insured bank for
purposes of holding such Participant's Account until such time as the Trustee is notified that a personal
representative has been appointed. For purposes of this Section 6.2, representation means division of a
Participant's Account into as many shares as there are, at the date on which the Account becomes
distributable, surviving descendants in the nearest degree of kinship and deceased descendants in the
same degree who left descendants who survive such deceased descendants, each surviving descendant in
the nearest degree receiving one share and the share of each deceased descendant in the same degree
being divided among his descendants in the same manner.
6.3 PARTICIPANT OR BENEFICIARY WHOSE WHEREABOUTS ARE UNKNOWN: In the
case of any Participant or beneficiary whose whereabouts are unknown, the Board shall notify such
Participant or beneficiary at his last known address by certified mail with return receipt requested
advising him of his right to a pending distribution. If the Participant or beneficiary cannot be located in
this manner, the Board shall direct the Trustee to forfeit the Account and apply the forfeited amount to
reduce County contributions in accordance with Section 4.1. If a claim for forfeited benefits is
subsequently made by the Participant or beneficiary, the amount forfeited, unadjusted for earnings or
interest, shall be restored by means of a County contribution.
9
TAX/1356984.2
ARTICLE 7
DISTRIBUTION FROM TRUST FUND
7.1 WHEN ACCOUNTS BECOME DISTRIBUTABLE AND EFFECT OF DISTRIBUTION: If a
Participant terminates employment for any reason, his vested Account shall be distributable under
Section 7.2. When his Account becomes distributable, such Participant shall cease to have any further
interest or participation in the Trust Fund or any subsequent accruals or contributions to the Trust Fund
except the right to receive distribution of the value of his Account. The Trustee will provide to each
Participant, no fewer than 30 days nor more than 180 days prior to the date the Participant's benefit
payment commences, a written explanation of the terms and conditions of the optional forms of payment
under the Plan, the Participant's right to defer distributions, and the consequences of failing to defer
receipt of the distribution, A Participant may waive the 30-day notice requirement described in the
preceding sentence.
7.2 DISTRIBUTION OF ACCOUNTS:
[a] Distribution Upon Retirement, Death, Total Disability, or Termination of Employment: If a
Participant's Account becomes distributable upon his termination of employment with the County
because of retirement, death, total disability or termination of employment for any reason, the
Trustee shall pay to him the value of his vested Account as determined under Section 5.1 [b] as of
the Valuation Date coincident with or next preceding the date of distribution. The distribution
shall be made not later than 180 days after the Participant's termination of employment.
Distribution must be made not later than April 1 of the calendar year following the calendar year
during which the Participant attains age 70'/z or actually retires, whichever is later. If a
Participant's Account becomes distributable because of his death, or if a Participant dies before
his entire Account balance has been distributed, his beneficiary shall receive in one single sum
cash payment, no later than 180 days after the Participant's death, an amount equal to the
remaining value of the Participant's vested Account as of the Valuation Date coincident with or
next preceding the distribution. Any death benefit provided through insurance or otherwise shall
be incidental within the meaning of Treasury Regulations Section 1.401-1(b)(1)(i).
[b] Eligible Rollover Distributions:
(1)
General Rule: Notwithstanding any provision of the Plan to the contrary that otherwise
would limit a Participant's distribution election under this Article, a Participant may
elect, at the time and in the manner prescribed by the Board, to have any portion in an
eligible rollover distribution paid directly to an eligible retirement plan specified by the
Participant in a direct rollover.
(2) Definitions:
[Al Eligible rollover distribution: An eligible rollover distribution is any distribution
of all or any portion of the balance to the credit of the distributee, except that an
eligible rollover distribution does not include [i] any distribution that is one of a
series of substantially equal periodic payments (not less frequently than annually)
made for the life (or life expectancy) of the distributee or the joint lives (or joint
life expectancies) of the distributee and the distributee's designated beneficiary,
or for a specified period of ten years or more; [ii] any distribution to the extent
such distribution is required under Section 401(a)(9) of the Code; [iii] the portion
of any distribution that is not includable in gross income (determined without
10
TAX/1356984.2
regard to the exclusion for net unrealized appreciation with respect to employer
securities); [iv] any hardship distribution; and [v] any other distribution that is
reasonably expected to total Less than $200 during a year.
A portion of a distribution shall not fail to be an eligible rollover distribution
merely because the portion consists of after-tax employee contributions which
are not includible in gross income. However, such portion may be transferred
only to an individual retirement account or annuity described in Section 408(a) or
(b) of the Code or a Roth individual retirement account or annuity described in
Section 408A of the Code, or to a qualified defined contribution plan described in
Sections 401(a) or 403(a) of the Code, or to an annuity contract described in
Section 403(b) of the Code, and such plan or contract provides for separate
accounting for amounts so transferred (and earnings thereon), including
separately accounting for the portion of such distribution which is includible in
gross income and the portion of such distribution which is not so includible. An
eligible rollover distribution shall include any distribution to a designated
beneficiary which would be treated as an eligible rollover distribution by reason
of Section 402(c)(I1) of the Code, or Sections 403(a)(4)(B), 403(b)(8)(B), or
457(e)(16)(B) of the Code, if the requirements of Section 402(c)(11) of the Code
were satisfied. Amounts transferred from a trust under a plan qualified under
Section 401(a) of the Code to a nonqualified foreign trust are treated as a
distribution from the transferor plan.
[13] Eligible retirement plan: An eligible retirement plan is an eligible plan under
Section 457(b) of the Code which is maintained by a state, political subdivision
of a state, or any agency or instrumentality of a state or political subdivision of a
state and which agrees to separately account for amounts transferred into such
plan from this Plan, an individual retirement account described in Section 408(a)
of the Code, an individual retirement annuity described in Section 408(b) of the
Code, an annuity plan described in Section 403(a) of the Code, an annuity
contract described in Section 403(b) of the Code, or a qualified plan described in
Section 401(a) of the Code, or, a Roth IRA described in Section 408A(b) of the
Code, that accepts the distributee's eligible rollover distribution. The definition
of eligible retirement plan shall also apply in the case of a distribution to a
Surviving Spouse, or to a Spouse or former Spouse who is the alternate payee
under a qualified domestic relations order, as defined in Section 414(p) of the
Code, or to a non -Spouse Beneficiary (but for a non -Spouse Beneficiary, eligible
retirement plan shall be limited to individual retirement accounts and individual
retirement annuities). If any portion of an eligible rollover distribution is
attributable to payments or distributions from a designated Roth account, an
eligible retirement plan with respect to such portion shall include only another
designated Roth account of the individual from whose account the payments or
distributions were made, or a Roth IRA of such individual.
[C] Distributee: A distributee includes an Employee or former Employee. In
addition, the Employee's or former Employee's Surviving Spouse and the
Employee's or former Employee's Spouse or former Spouse who is the alternate
payee under a qualified domestic relations order, and the Employee's or former
Employee's non -Spouse Beneficiary, are distributees with regard to the interest
of such person.
TAX/1356984.2
[c]
(3)
[i]
Non -Spouse Beneficiary Rollover: A designated Beneficiary who is not
the Participant's Surviving Spouse is a Distributee with respect to the
interest of the designated Beneficiary if the distribution that is otherwise
an eligible rollover distribution is made by a direct trustee -to -trustee
transfer ("direct rollover") to an individual retirement account described
in Section 408(a) of the Code or an individual retirement annuity
described in Section 408(b) of the Code, that is established for the
purposes of receiving the distribution on behalf of the designated
Beneficiary. Distributions from the Plan to a non -Spouse Beneficiary are
not eligible for a sixty-day rollover. A non -Spouse Beneficiary may not
rollover an amount which is a required minimum distribution. If the
Participant dies before the Participant's required beginning date and the
non -Spouse Beneficiary rolls over to an individual retirement account the
maximum amount eligible for rollover, the non -Spouse Beneficiary may
elect to use either the five-year rule or the life expectancy rule set forth in
Treasury Regulation Section I.401(a)(9)-3, A-4(c), in determining the
required minimum distributions from the individual retirement account
that receives the non -Spouse Beneficiary's distribution.
[ii] Trust Beneficiary: If the Participant's named Beneficiary is a trust that
satisfies the requirements to be a designated Beneficiary under Section
401(a)(9)(E) of the Code, the Plan may make a direct rollover to an
individual retirement account on behalf of the trust.
[D] Direct rollover: A direct rollover is a payment by the Plan to the eligible
retirement plan specified by the distribute.
Procedures: The Board may establish procedures for the distribution of eligible rollover
distributions, including any limitations on the amount eligible for a rollover distribution,
to the extent permitted by law.
Mandatory Distributions: In the event of a mandatory distribution greater than $1,000 in
accordance with the provisions of Section 7.2[a], if the Participant does not elect to have such
distribution paid directly to an eligible retirement plan specified by the Participant in a direct
rollover or to receive the distribution directly in accordance with Section 7.2, then the Plan
Administrator will pay the distribution in a direct rollover to an individual retirement plan
designated by the Plan Administrator.
7.3 MINIMUM DISTRIBUTIONS: Notwithstanding any other provisions of this Article, the
following distribution rules will apply:
[a] General Rules:
(1) The Plan will apply the minimum distribution requirements of Section 401(a)(9) of the
Code in accordance with the regulations under Section 401(a)(9) of the Code and the
minimum distribution incidental benefit requirement of Section 401(a)(9)(G) of the Code.
(2) Limits on Distribution Periods: As of the first distribution calendar year, distributions to a
Participant, if not made in a single sum, may only be made over one of the following
periods:
12
TAX/1356984.2
[A] the life of the Participant;
[B] the joint lives. of the Participant and a designated Beneficiary;
[C] a period certain not extending beyond the life expectancy of the Participant; or
[D] a period certain not extending beyond the joint life and last survivor expectancy
of the Participant and a designated Beneficiary.
[b] Time and Manner of Distribution:
(1) Required Beginning Date: The Participant's entire interest will be distributed, or begin to
be distributed, to the Participant no later than the Participant's required beginning date.
(2) Death of Participant Before Distributions Begin: If the Participant dies before
distributions begin, the Participant's entire Account will be distributed, or begin to be
distributed, no later than as follows:
[A] If the Participant's Surviving Spouse is the Participant's sole designated
Beneficiary, then, distributions to the Surviving Spouse may, but are not required
to, begin by December 31 of the calendar year immediately following the
calendar year in which the Participant died, or by December 31 of the calendar
year in which the Participant would have attained age 701/2, if later:
Alternatively, the Participant's entire interest will be distributed to the designated
Beneficiary by December 31 of the calendar year containing the fifth anniversary
of the Participant's death. If the Surviving Spouse dies after the Participant, but
before distributions to either the Participant or the Surviving Spouse begins, this
alternative will apply as if the Surviving Spouse were the Participant.
[B] Distributions to the designated Beneficiary may, but are not required to, begin by
December 31 of the calendar year immediately following the calendar year in
which the Participant died. Alternatively, the Participant's entire interest will be
distributed to the designated Beneficiary by December 31 of the calendar year
containing the fifth anniversary of the Participant's death.
[C] If there is no designated Beneficiary as of September 30 of the year following the
year of the Participant's death, the Participant's entire interest will be distributed
by December 31 of the calendar year containing the fifth anniversary of .the
Participant's death.
[D] If the Participant's Surviving Spouse is the Participant's sole designated
Beneficiary and the Surviving Spouse dies after the Participant but before
distributions to the Surviving Spouse are required to begin, this Section 7.3[b][2],
other than Section 7.3[b][2][A], will apply as if the Surviving Spouse were the
Participant.
For purposes of this Section 7.3[b][2] and Section 7.3[d], unless Section
7.3[b][2][D] applies, distributions are considered to begin on the Participant's
required beginning date. If Section 7.3[b][2][D] applies, distributions are
considered to begin on the date distributions are required to begin to the
Surviving Spouse under Section 7.3[b][2][A]. If distributions under an annuity
13
TAX/ 13569 84.2
[c]
(3)
purchased from an insurance company irrevocably commence to the Participant
before the Participant's required beginning date (or to the Participant's Surviving
Spouse before the date distributions are required to begin to the Surviving Spouse
under Section 7.3[b][2][A] the date distributions are considered to begin is the
date distributions actually commence.
Participants and Beneficiaries may elect on an individual basis whether the five-
year rule or the life expectancy rule applies to distributions after the death of a
Participant who has a designated Beneficiary. The election must be made no
later than the earlier of September 30 of the calendar year in which the
distribution would be required under the life expectancy rule, or by September 30
of the calendar year that contains the fifth anniversary of the Participant's (or, if
applicable, the Surviving Spouse's) death. if neither the Participant nor
Beneficiary makes an election, distributions will be made in accordance with the
five-year rule.
Forms of Distribution: Unless the Participant's interest is distributed in the form of an
annuity purchased from an insurance company or in a single -sum on or before the
required beginning date, as of the first distribution calendar year distributions will be
made in accordance with Sections 7.3[c] and 7.3[d]. If the Participant's interest is
distributed in the form of an annuity purchased from an insurance company, distributions
thereunder will be made in accordance with the requirements of Section 401(a)(9) of the
Code and the regulations.
Required Minimum Distributions During Participant's Lifetime:
{1)
Amount of Required Minimum Distribution For Each Distribution Calendar Year:
During the Participant's lifetime, the minimum amount that will be distributed for each
distribution calendar year is the lesser of:
[A] the quotient obtained by dividing the Participant's Account balance by the
distribution period in the Uniform Lifetime Table set forth in Treasury
Regulation Section 1.401 (a)(9)-9, Q&A-2, using the Participant's age as of the
Participant's birthday in the distribution calendar year; or
[B]
if the Participant's sole designated Beneficiary for the distribution calendar year
is the Participant's Spouse, the quotient obtained by dividing the Participant's
Account balance by the number in the Joint and Last Survivor Table set forth in
Treasury Regulation Section 1.401(a)(9)-9, Q&A-3, using the Participant's and
Spouse's attained ages as of the Participant's and Spouse's birthdays in the
distribution calendar year.
(2) Lifetime Required Minimum Distributions Continue Through Year of Participant's
Death: Required minimum distributions will be determined under this Section 7.3[c]
beginning with the first distribution calendar year and continuing up to, and including,
the distribution calendar year that includes the Participant's date of death,
[d] Required Minimum Distributions After Participant's Death:
(1) Death On or After Date Distributions Begin:
14
TAX/1356984.2
[A] Participant Survived by Designated Beneficiary: If the Participant dies on or
after the date distributions begin and there is a designated Beneficiary, the
minimum amount that will be distributed for each distribution calendar year after
the year of the Participant's death is the quotient obtained by dividing the
Participant's Account balance by the longer of the remaining life expectancy of
the Participant or the remaining life expectancy of the Participant's designated
Beneficiary, determined as follows:
[i]
The Participant's remaining life expectancy is calculated using the age of
the Participant in the year of death, reduced by one for each subsequent
year.
[ii] If the Participant's Surviving Spouse is the Participant's sole designated
Beneficiary, the remaining life expectancy of the Surviving Spouse is
calculated for each distribution calendar year after the year of the
Participant's death using the Surviving Spouse's age as of the Spouse's
birthday in that year. For distribution calendar years after the year of the
Surviving Spouse's death, the remaining life expectancy of the Surviving
Spouse is calculated using the age of the Surviving Spouse as of the
Spouse's birthday in the calendar year of the Spouse's death, reduced by
one for each subsequent calendar year.
[iii] If the Participant's Surviving Spouse is not the Participant's sole
designated Beneficiary, the designated Beneficiary's remaining life
expectancy is calculated using the age of the Beneficiary in the year
following the year of the Participant's death, reduced by one for each
subsequent year.
[B] No Designated Beneficiary: If the Participant dies on or after the date
distributions begin and there is no designated Beneficiary as of the September 30
of the year after the year of the Participant's death, the minimum amount that
will be distributed for each distribution calendar year after the year of the
Participant's death is the quotient obtained by dividing the Participant's Account
balance by the Participant's remaining life expectancy calculated using the age of
the Participant in the year of death, reduced by one for each subsequent year.
(2) Death Before Date Distributions Begin:
[A] Participant Survived by Designated Beneficiary: If the Participant dies before
the date distributions begin and there is a designated Beneficiary, the minimum
amount that will be distributed for each distribution calendar year after the year
of the Participant's death is the quotient obtained by dividing the Participant's
account balance by' the remaining life expectancy of the Participant's designated
Beneficiary, determined as provided in Section 7.3[d][1]. Alternatively, the
distribution to the designated Beneficiary is not required to begin by the date
above if the entire interest is distributed to the designated Beneficiary by the
December 31 of the calendar year containing the fifth anniversary of the
Participant's death. If the Participant's Surviving Spouse is the Participant's sole
designated Beneficiary, and the Surviving Spouse dies after the Participant but
before distributions to either the Participant or the Surviving Spouse begin, this
alternative will apply as of the Surviving Spouse were the Participant.
15
TAX/1356984.2
Participants and Beneficiaries may elect on an individual basis whether the five-
year rule or the life expectancy rules applies to distributions after the death of a
Participant who has a designated Beneficiary. The election must be made no
later than the earlier of September 30 of the calendar year in which the
distribution would be required under the life expectancy rule, or by September 30
of the calendar year that contains the fifth anniversary of the Participant's (or, if
applicable, the Surviving Spouse's) death. If neither the Participant or
Beneficiary makes an election, distributions will be made in accordance with the
five-year rule.
[B] No Designated Beneficiary: If the Participant dies before the date distributions
begin and there is no designated Beneficiary as of September 30 of the year
following the year of the Participant's death, distribution of the Participant's
entire interest will be completed by December 31 of the calendar year containing
the fifth anniversary of the Participant's death.
[C] Death of Surviving Spouse Before Distributions to Surviving Spouse Are
Required to Begin: If the Participant dies before the date distributions begin, the
Participant's Surviving Spouse is the Participant's sole designated Beneficiary,
and the Surviving Spouse dies before distributions are required to begin to the
Surviving Spouse under Section 7.3[b][2][A], this Section 7.3[d][2] will apply as
if the Surviving Spouse were the Participant.
[e] Definitions:
(1)
Designated Beneficiary: The individual who is designated as the Beneficiary of the
Participant's Account under the Plan and who is the designated Beneficiary under Section
401(a)(9) of the Code and Treasury Regulation Section 1,401(a)(9) 4.
(2) Distribution Calendar Year: A calendar year for which a minimum distribution is
required. For distributions beginning before the Participant's death, the first distribution
calendar year is the calendar year immediately preceding the calendar year which
contains the Participant's required beginning date. For distributions beginning after the
Participant's death, the first distribution calendar year is the calendar year in which
distributions are required to begin under Section 7.3[b][2]. The required minimum
distribution for the Participant's first distribution calendar year will be made on or before
the Participant's required beginning date. The required minimum distribution for other
.distribution calendar years, including the required minimum distribution for the
distribution calendar year in which the Participant's required beginning date occurs, will
be made on or before December 31 of that distribution calendar year.
(3) Life Expectancy: Life expectancy as computed by use of the single life table in Treasury
Regulation Section 1.401(a)(9)-9, Q&A-1.
(4) Participant's Account Balance: The Account balance as of the last valuation date in the
calendar year immediately preceding the distribution calendar year (valuation calendar
year) increased by the amount of any contributions made and allocated or forfeitures
allocated to the Account as of dates in the valuation calendar year after the valuation date
and decreased by distributions made in the valuation calendar year after the valuation
date. The Account balance for the valuation calendar year includes any amounts rolled
16
TAi /1356984,2
Lt]
(5)
over or transferred to the Plan either in the valuation calendar year or in the distribution
calendar year if distributed or transferred in the valuation calendar year. •
Required Beginning Date: The required beginning date of a Participant is April 1 of the
calendar year following the later of the calendar year in which the Participant attains age
701/2 or the calendar year in which the Participant retires.
TEFRA Section 242(b)(2) Elections: Notwithstanding the other requirements of this Section 7.3,
distributions may be made under a designation made before January 1, 1984, in accordance with
Section 242(b)(2) of the Tax Equity and Fiscal Responsibility Act (TEFRA) and the provisions of
the Plan that relate to Section 242(b)(2) of TEFRA.
7.4 DISPOSITION OF FORFEITABLE ACCOUNT ON TERMINATION OF EMPLOYMENT: If
a Participant's employment is terminated for any reason other than retirement, death, or total disability,
while any part of his Account in the Trust Fund is forfeitable, then that portion of his Account which is
forfeitable shall be forfeited by him upon distribution of his vested Account. Any amount forfeited shall
remain in the Trust Fund and shall be applied to the payment of Plan expenses with any excess applied to
reduce the County contributions for the Plan Year in which it is forfeited as provided under Section 4.1.
A Participant who terminates employment with no vested Account will be deemed to have received a
distribution as of the date the Participant terminates employment and the Participant's nonvested Account
will be forfeited as of the date the Participant terminates employment.
7.5 NONALIENATION OF BENEFITS: Except for assignments for child support purposes as
provided for in sections 14-10-118(1) and 14-14-107, C.R.S. as they existed prior to July 1, 1996, and
except for income garnishments for child support purposes pursuant to section 14-14-111, C.R.S., for
writs of garnishment that are the result of a judgment taken for arrearages for child support or for child
support orders or for child support debt, and for payments made in compliance with a properly executed
court order approving a written agreement entered into pursuant to section 14-10-113(6), C.R.S., none of
the moneys, funds, individual accounts, or other benefits specified in this Plan shall be assignable either
in law or in equity or be subject to execution, levy, attachment, garnishment, or other legal process.
7.6 LOANS TO PARTICIPANTS:
[a] General Rules: The Board, in accordance with a uniform and non-discriminatory policy, may
direct the Trustee to make a loan to any Participant who makes a written request for a loan in
accordance with the loan policies adopted by the Board. Procedures and rules regarding
Participant loans will be promulgated by the Board. No loan to a Participant may exceed one half
of the Participant's vested Account balance. In addition, a loan, when added to the outstanding
balance of all other loans to the Participant from this and any other qualified Plan maintained by
the County, may not exceed $50,000 less the excess of the highest outstanding balance of loans
from the Plan during the one-year period ending on the day before such loan is made over the
outstanding balance of loans from the Plan on the day such loan is made.
For purposes of the loan limits described above, all plans of the County will be treated as one
plan. An assignment or pledge of any portion of the Participant's interest in the Plan and any
loan, pledge, or assignment of any insurance contract purchased under the Plan will be treated as
a loan under this Section.
[b] Security and Interest: All loans will be adequately secured and will bear a rate of interest to be
determined by the Board that shall be considered reasonable on the date the loan was made. A
17
TAX113569542
Cel
Participant loan will be considered an investment of the Account of the Participant requesting the
loan and interest paid on a loan will be allocated to the Account of the Participant -borrower.
Repayment of Loan: Any loan must be repaid in level payments of principal and interest at least
quarterly within the term of the loan or on the occurrence of an event that renders the
Participant's Account distributable, whichever occurs first. If a Participant does not repay a loan
within the time prescribed, in addition to enforcing payment through any legal remedy, the Board
may instruct the Trustee to deduct the total amount of the loan and any unpaid interest due on it
from the Participant's Account when the Account becomes distributable under the Plan. The
term of the loan may not extend beyond five years from the date of the loan unless the loan is
used to acquire a dwelling unit which within a reasonable time (determined at the time the loan is
made) will be used as the principal residence of the Participant. Loans will be suspended as
permitted under Code Section 414(u).
7.7 QUALIFIED DOMESTIC RELATIONS ORDERS:
The Board will establish reasonable procedures for determining the qualified status of a domestic
relations order pursuant to Section 14-10-113(6), C.R.S. Such procedures:
(1) will be in writing;
(2) will provide that each person specified in a domestic relations order as entitled to
payment of plan benefits will be notified of the procedures promptly upon receipt of the
order by the Plan; and
(3)
will permit an alternate payee to designate a representative for receipt of copies of notices
that are sent to the alternate payee.
Within a r
easonable period of time after receipt of an order, the Board will determine if the order is
a qualified domestic relations order and will notify the Participant and each alternate
payee of the determination. During any period in which the issue of whether a domestic
relations order is a qualified domestic relations order is being determined, the Board will
segregate, in a separate account, the amounts that would have been payable to the
alternate payee during the period if the order had been determined to be a qualified
domestic relations order. If, within 18 months the order is determined not to be a
qualified domestic relations order or the issue as to whether the order is a qualified
domestic relations order is not resolved, then the Board will pay under the terms of the
Plan the segregated amounts to the person or persons who would have been entitled to
those amounts if there had been no order. If the Board acts in accordance with the
provisions of the Plan, then the Plan's obligation to the Participant and each alternate
payee is discharged to the extent of any payment made.
ARTICLE 8
ADMINISTRATION
8.1 APPOINTMENT OF BOARD: The Board shall consist of 5 members with staggered 4 year
terms. One member shall be the County Treasurer of Pitkin County. Two of the members shall be
nonelected County employees elected by participating employees under procedures specified by the
18
TAX/ 1356984.2
Board of County Commissioners and the other two members shall be registered electors of the County
appointed by the Board of County Commissioners. The Board of County Commissioners may remove
any Board member other than the County Treasurer for failure to discharge his official duties and
responsibilities as defined in the plan. Any vacancy occurring on the Board because of resignation,
removal or death shall be filled for the remainder of the term of such member by appointment by the
Board of County Commissioners.
8.2 ORGANIZATION AND OPERATION OF BOARD: The Board may adopt such procedures as
it deems desirable for the conduct of its affairs, provided, however, that the following rules and
procedures shall apply:
[a] The Board shall act only by a majority vote of the entire Board, such action to be properly
documented in writing and filed with the County Clerk and Recorder.
[b] The Board shall meet at least quarterly. All meetings of the Board shall be open to the
Employees and to the public.
[c] The Board shall comply with all applicable State, Local and Federal laws.
[d] The Board shall furnish each Plan Participant with a report of the value of his Account, including
earnings, at least annually.
[e]
The Board shall annually report to the Employees the status, including contributions and
disbursements, of each account defined in this Plan.
8.3 INFORMATION TO BE MADE AVAILABLE TO BOARD: To enable the Board to perform all
of its duties under the Plan, the County shall provide the Board with access to the information that is
available in County records for each Employee as the Board may require. Information not in the County
records may be obtained from the participants. The Board, and the County may rely on and shall not be
liable because of any information that an Employee provides, either directly or indirectly.
8.4 GENERAL DUTIES AND POWERS OF BOARD: The Board shall decide all questions arising
in the administration, interpretation, and application of the Plan and Trust, including all questions relating
to eligibility, vesting, and distribution, except as may be reserved under this Plan to the County or the
Board of County Commissioners. The Board from time to time shall direct the Trustee concerning the
payments to be made out of the Trust Fund pursuant to the Plan. All notices, directions, information, and
other communications to and from the Board shall be in writing.
8.5 EMPLOYMENT OF ADVISERS AND PERSONS TO CARRY OUT RESPONSIBILITIES:
The Board may employ one or more persons to render advice with regard to any responsibility the Board
has under the Plan and may employ one or more persons to carry out any of his responsibilities under the
Plan.
8.6 KEEPING OF RECORDS: The Board shall keep a record of all of its proceedings and shall keep
all such books of account, records, and other data as may be necessary or advisable in its judgment for the
administration of this Plan and Trust, including records to reflect the affairs of this Plan, to determine the
amount of vested and/or forfeitable interests of the respective Participants, and to determine the amount of
all benefits payable under this Plan. The Board shall maintain separate accounts for each Participant as
provided under Section 5.1. Subject to the requirements of law, any person dealing with the Board may
rely on, and shall incur no liability in relying on, a certificate or memorandum in writing signed by the
Board as evidence of any action taken or resolution adopted by the Board.
19
TAX/I356984,2
8.7 COMPENSATION AND EXPENSES:
[a] General: All Plan expenses shall be paid by the Plan first by application of forfeitures under
Section 7.4; second by application of net earnings on Plan investments, and then from County
contributions; provided, however, that the County, in its discretion, may elect to pay directly all
or any part of such Plan expenses.
[b] Compensation and Expenses of Board and Trustees: No Board Member or Trustee shall receive
any compensation from the Plan, except for reimbursement of expenses properly and actually
incurred.
[c] Compensation of Trustee: A Trustee who is not a full-time Employee of the County shall be
entitled to such compensation for its services as the Board and the Trustee mutually shall
determine.
[d] Compensation of Persons Retained or Employed by Fiduciary: The compensation of all agents,
counsel, or other persons retained or employed by the Board or by the Trustee shall be
determined by the Board of Trustees provided that a person who is a full-time employee of the
County shall receive no compensation from the Plan.
8.8 CLAIMS PROCEDURE:
[a] Filing and Initial Determination of Claim: Any Participant, beneficiary, or his duly authorized
representative may file a claim for a Plan benefit to which the claimant believes that he is entitled.
Such a claim must be in writing and delivered to the Board in person or by certified mail, postage
prepaid. Within 90 days after receipt of such claim, the Board shall send to the claimant by
certified mail, postage prepaid, notice of the granting or denying, in whole or in part, of such
claim, unless special circumstances require an extension of time for processing the claim. In no
event may the extension exceed 90 days from the end of the initial period. If such extension is
necessary, the claimant will be given a written notice to this effect prior to the expiration of the
initial 90-day period. The Board shall have full discretion to deny or grant a claim in whole or in
part. If notice of the denial of a claim is not furnished in accordance with this paragraph [a], the
claim shall be deemed denied and the claimant shall be permitted to exercise his right of review
pursuant to paragraphs [b] and [c] of this Section.
[b] Request for Review of Claim Denial: Within 60 days after receipt by the claimant of written
notification of the denial in whole or in part of his claim, the claimant or his duly authorized
representative, upon written application to the Board in person or by certified mail, postage
prepaid, may request a review of such denial, may review pertinent documents, and may submit
issues and comments in writing. Upon its receipt of the request for review, the Board shall notify
the Board of County Commissioners of the request.
[c] Claims Reviewer: Upon its receipt of notice of a request for review, the Board of County
Commissioners shall appoint a person other than the Board to be the claims reviewer. The Board
shall deliver to the claims reviewer all documents pertinent to the review. The claims reviewer
shall make a prompt decision on the review. The decision on review shall be written in a manner
calculated to be understood by the claimant, and shall include specific reasons for the decision
and specific references to the pertinent Plan provisions on which the decision is based. The
decision on review shall be made not later than 60 days after the Board's receipt of a request for a
review, unless special circumstances require an extension of time for processing, in which case a
decision shall be rendered not later than 120 days after receipt of a request for review. If such
20
TAX/1356984.2
extension is necessary, the claimant shall be given written notice of the extension prior to the
expiration of the initial 60-day period. If notice of the decision on the review is not furnished in
accordance with this paragraph [c], the claim shall be deemed denied and the claimant shall be
permitted to exercise his right to legal remedy pursuant to paragraph [d] of this Section.
[d] Legal Remedy: After exhaustion of the claims procedure as provided under this Plan, nothing
shall prevent any person from pursuing any other legal remedy.
ARTICLE 9
POWERS AND DUTIES OF THE TRUSTEE
9.1 INVESTMENT OF TRUST FUND:
[a] Duties of Trustee: The duty of the Trustee is to hold in trust the funds it receives. The Trustee
shall have exclusive authority and discretion to manage and control the assets of the Plan and to
manage, invest and reinvest the Trust Fund and the income from it under this article, without
distinction between principal and income. The Trustee shall be responsible only for the sums it
actually receives as Trustee. The Trustee shall have no duty to collect any sums from the Board.
[b] Powers of Trustee: The Trustee shall have the power to invest and/or reinvest any and all money
or property of any description at any time held by it and constituting a part of the Trust Fund,
without previous application to, or subsequent ratification of, any court, tribunal or commission,
or any federal or state governmental agency. The Trustees shall be governed by the standard for
investments prescribed in Colorado Revised Statutes Section 15-1-304. The Trustee may invest
in real property and all interests in real property, in bonds, notes, debentures, mortgages,
commercial paper, preferred stocks, common stocks, or other securities, rights, obligations or
property, real or personal, including shares or certificates of participation issued by regulated
investment companies or regulated investment trusts, shares or units of participation in qualified
common trust funds, in qualified pooled funds, or in pooled investment funds of an insurance
company qualified to do business in the state; provided, however, that the aggregate amount
invested in corporate stocks or corporate bonds, notes or debentures that are convertible into
corporate stock .or in investment trust shares, shall not exceed the limit specified in Colorado
Revised Statutes Section 24-51-206(3).
[c]
Participant Investment Directions:
(1)
'1'AX/1356984.2
General Rules. Each Participant may direct investment of their Account in categories of
investments permitted by law and in accordance with the rules and procedures for
Participant investment direction established by the Board. The rules may specify the
percentage of a Participant's Account that may be invested at the Participant's direction,
and any portion of a Participant's Account that will remain subject to investment
direction by the Board. The Board and the Trustee will be under no duty to question any
investment direction by a Participant, or to make suggestions to the Participant with
respect to Participant directed investments. If a Participant fails to direct the Trustee as to
the investment of any portion of the Participant's Account, that portion of the Account
will be invested at the Board's discretion until effective investment directions are
received. The right to direct investments under this Section will be the sole and exclusive
investment power granted to Participants. The exercise of investment direction by a
Participant will not cause the Participant to be a fiduciary, and neither the Trustee, Board,
21
nor the County will be liable for any loss that results from exercise of investment
direction by a Participant.
(2) Investment Funds. The Trustee may offer investment funds that may include fixed
income obligations, such as savings accounts, certificates of deposit, and fixed income
government and corporate obligations. The investment categories also may include
common stock, real property, notes, mortgages, commercial paper, preferred stocks,
mutual funds, or other securities, rights, obligations, or property, real or personal,
including shares of certificates of participation issued by regulated investment trusts and
shares or units of participation in qualified common trust funds or pooled funds.
Participant Accounts in investment categories offered by the Trustee may be
commingled. Investment categories may not include collectibles within the meaning of
Code Section 408(m).
9.2 ADMINISTRATIVE POWERS OF THE TRUSTEE: Subject to the requirements imposed by
law, the Trustee shall have all powers necessary or advisable to carry out the provisions of this Plan and
Trust and all inherent, implied, and statutory powers now or subsequently provided by law, including
specifically the power to do any of the following:
[a] to cause any securities or other property to be registered and held in its name as Trustee, or in the
name of one or more of its nominees, without disclosing the Fiduciary capacity, or to keep the
same in unregistered form payable to bearer;
[b] to sell, grant options to sell, exchange, pledge, encumber, mortgage, deed in trust, or use any
other form of hypothecation, or otherwise dispose of the whole or any part of the Trust Fund on
such terms and for such property or cash, or part cash and credit, as it may deem best; to retain,
hold, maintain, or continue any securities or investments which it may hold as part of the Trust
Fund for such length of time as it may deem advisable; and generally, in all respects, to do all
things and exercise each and every right, power and privilege in connection with and in relation
to the Trust Fund as could be done, exercised or executed by an individual holding and owning
such property in absolute and unconditional ownership;
[c] to abandon, compromise, contest, and arbitrate claims and demands; to institute, compromise, and
defend actions by law (but without obligation to do so); in connection with such powers, to
employ counsel as the Trustee shall deem advisable; and to exercise such powers all at the risk
and expense of the Trust Fund;
[d] to borrow money for this Trust upon such terms and conditions as the Trustee shall deem
advisable, and to secure the repayment of such by the mortgage or pledge of any assets of the
Trust Fund;
[e] to vote in person or by proxy any shares of stock or rights held in the Trust Fund; to participate in
and to exchange securities or other property in reorganization, liquidation, or dissolution of any
corporation, the securities of which are held in the Trust Fund; and
If]
to pay any amount due on any loan or advance made to the Trust Fund, to charge against and pay
from the Trust Fund all taxes of any nature levied, assessed, or imposed upon the Trust Fund, and
to pay all reasonable expenses and attorney fees necessarily incurred by the Trustee with respect
to any of the foregoing matters.
22
TAX/1356984.2
9.3 ADVICE OF COUNSEL: The Trustee may consult with legal counsel, who may be counsel for
the County, or Trustee's own counsel, with respect to the meaning or construction of the Plan and Trust
or Trustee's obligations or duties. The Trustee shall be protected from any responsibility with respect to
any action taken or omitted by it in good faith pursuant to the advice of such counsel, to the extent
permitted by law.
9.4 RECORDS AND ACCOUNTS OF THE TRUSTEE: The Trustee shall keep all the records and
accounts that may be necessary in the administration and conduct of this Trust. The Trustee's records and
accounts shall be open to inspection by the County and the Board at all reasonable times during business
hours. All income, profits, recoveries, contributions, forfeitures, and any and all moneys, securities, and
properties of any kind at any time received or held by the Trustee shall be held for investment purposes as
a commingled Trust Fund. Separate accounts or records may be maintained for operational and
accounting purposes, but no such account or record shall be considered as segregating any funds or
property from any other funds or property contained in the commingled fund, except as otherwise
provided. After the close of each year of the Trust, the Trustee shall render to the County and the Board a
statement of assets and liabilities of the Trust Fund for such year.
9.5 APPOINTMENT, RESIGNATION, REMOVAL AND SUBSTITUTION OF TRUSTEE: The
Board may serve as Trustee or may appoint a Trustee or Trustees, each of which shall hold office until
resignation or removal by the Board. The Trustee may resign at any time upon 30 days' written notice to
the Board. The Trustee may be removed at any time by the Board upon 30 days' written notice to the
Trustee with or without cause. Upon resignation or removal of the Trustee, the Board, shall appoint a
successor trustee which shall have the same powers and duties as are conferred upon the Trustee
appointed under this Plan. The resigning or removed Trustee shall deliver to its successor trustee all
property of the Trust Fund, less a reasonable amount necessary to provide for its compensation, expenses,
and any taxes or advances chargeable or payable out of the Trust Fund. If the Trustee is an individual,
death shall be treated as a resignation, effective immediately. If any corporate Trustee at any time shall
be merged or consolidated with, or shall sell or transfer substantially all of its assets and business to
another corporation, whether state or federal, or shall be reorganized or reincorporated in any manner,
then the resulting or acquiring corporation shall be substituted for such corporate Trustee without the
execution of any instrument and without any action upon the part of the Board, any Participant or
beneficiary, or any other person having or claiming to have an interest in the Trust Fund or under the
Plan.
9.6 APPOINTMENT OF TRUSTEE --ACCEPTANCE IN WRITING: The Trustee shall accept its
appointment as soon as practical by executing this Plan or by delivering a signed document to the Board.
The Board shall appoint a new Trustee if the Trustee fails to accept its appointment in writing.
9.7 INVESTMENT MANAGER: If the Board so directs, the Trustee shall appoint an Investment
Manager to assume powers or responsibilities for the investment and management of assets of the Plan.
The Investment Manager shall assume full liability for all duties and powers assigned to him and shall be
subject to the fiduciary standards and responsibilities imposed by law. The Trustees shall not be liable for
acts or omissions of the Investment Manager nor shall the Trustees be under an obligation to manage any
assets of the Plan that are subject to the management of an Investment Manager. Nothing in this
paragraph shall relieve any Trustees of any liability under the Plan for any act or omission of the Trustees.
The Investment Manager shall be a fiduciary [a] who has the power to manage, acquire, or dispose of any
assets of a Plan; [b] who is [1] registered as an investment adviser under the Investment Advisers Act of
1940; [2] a bank, as defined in that Act; or [3] an insurance company qualified to perform services
described in [a] under the laws of more than one state; and [c] who has acknowledged in writing that he is
a fiduciary with respect to the Plan.
23
TAX/1356984.2
ARTICLE 10
CONTINUANCE, TERMINATION, AND
AMENDMENT OF PLAN AND TRUST
10.1 TERMINATION OF PLAN AND TRUST:
[a] General Rules: The expectation of the County is to continue this Plan and Trust indefinitely, but
the continuance of the Plan and Trust is not assumed as a contractual obligation by the County,
and the right is reserved to the County, by action of the Board of County Commissioners, to
terminate this Plan and/or Trust in whole or in part at any time. Such termination by the County
in no event shall have the effect of revesting any part of the Trust Fund in the County. Notice of
such termination shall be given to the Trustee and the Board in the form of an instrument in
writing executed by the County pursuant to the action of the Board of County Commissioners. In
its discretion the Board may request a favorable determination letter from the Internal Revenue
Service stating that the prior qualified status of the Plan has not been affected by such
termination. Termination of the Plan and/or Trust shall take effect as of the date of the delivery
of the notice of termination and favorable determination letter, if obtained, to the Trustee.
[b] Termination of Plan and Continuance of Trust: The County, by action of the Board of County
Commissioners, may terminate this Plan but retain the assets of the Trust Fund and pay them
under the terms of the Plan as if no Plan termination had occurred. In its discretion the Board
may request a favorable determination letter from the Internal Revenue Service stating that the
prior qualified status of the Plan and Trust has not been affected by the termination. The
termination of the Plan shall take effect as of the date specified by the Board of County
Commissioners. If the Plan is terminated under this paragraph, the Trust shall continue until the
earlier of such time as all assets of the Trust are distributed, or the Board of County
Commissioners terminates the Trust under Section 10.1 [a].
10.2 MERGER, CONSOLIDATION, OR TRANSFER OF ASSETS OR LIABILITIES OF THE
PLAN: The Board of County Commissioners may merge or consolidate this Plan with any other plan or
may transfer the assets or liabilities of the Plan to or from any other plan.
After approval by the Internal Revenue Service, the Board of County Commissioners transferred
to a qualified defined contribution plan established by the Roaring Fork Transportation Authority the
Account of any Participant who transferred employment from the County to the Roaring Fork
Transportation Authority, including the unvested portion. Thereafter, each such Participant's Account
was subject to the terms of the Roaring Fork Transportation Authority Plan. After such transfer, such
Participant ceased to have any further interest or participation in the Trust Fund or any subsequent
accruals or contributions to the Trust Fund. Such transfer did not result in a partial termination of the
Plan.
10.3 DISTRIBUTION UPON TERMINATION OF TRUST: If the Trust is terminated under this
article, the Trustee shall determine the value of the Trust Fund and of the respective interests of the
Participants and beneficiaries under Article 5 as of the business day next following the date of such
termination. The Trustee then shall transfer to each Participant or beneficiary the net balance of the
Participant's Account.
10.4 AMENDMENTS TO PLAN AND TRUST: At any time the County may amend this Plan and
Trust by action of the Board with the approval of the County Board of Commissioners, provided that no
amendment shall cause the Trust Fund to be diverted to purposes other than for the exclusive benefit of
24
TAX! € 356984.2
the Participants and their beneficiaries. No amendment shall decrease the vested interest of any
Participant. Notwithstanding anything in this Plan and Trust to the contrary, the Plan and Trust may be
amended at any time to conform to the provisions and requirements of federal and state law with respect
to employees' trusts or any amendments to such laws or regulations or rulings issued pursuant to them.
No such amendment shall be considered prejudicial to the interest of any Participant or beneficiary under
this Plan.
ARTICLE 11
MISCELLANEOUS
11.1 BENEFITS TO BE PROVIDED SOLELY FROM THE TRUST FUND: All benefits payable
under this Plan shall be paid or provided solely from the Trust Fund, and the County assumes no liability
or responsibility for payment of benefits.
11.2 NOTICES FROM PARTICIPANTS TO BE FILED WITH BOARD: Whenever provision is
made in the Plan that a Participant may exercise any option or election or designate any beneficiary, the
action of such Participant shall be evidenced by a written notice signed by the Participant and delivered to
the Board in person or by certified mail. If a form is furnished by the Board for such purpose, a
Participant shall give written notice of his exercise of any option or election or of his designation of any
beneficiary on the form provided for such purpose. Written notice shall not be effective until received by
the Board.
11.3 TEXT TO CONTROL: The headings of articles and sections are included solely for convenience
of reference. If any conflict between any heading and the text of this Plan and Trust exists, the text shall
control.
11.4 SEVERABILITY: If any provision of this Plan and Trust is illegal or invalid for any reason, such
illegality or invalidity shall not affect the remaining provisions. On the contrary, such remaining
provisions shall be fully severable, and this Plan and Trust shall be construed and enforced as if such
illegal or invalid provisions never had been inserted in this Plan and Trust.
11.5 JURISDICTION: This Plan shall be construed and administered under the laws of the State of
Colorado when the laws of that jurisdiction are not in conflict with federal substantive law.
11.6 PLAN FOR EXCLUSIVE BENEFIT OF PARTICIPANTS: REVERSION PROHIBITED: This
Plan and Trust has been established for the exclusive benefit of the Participants and their beneficiaries.
Under no circumstances shall any funds contributed to or held by the Trustee at any time revert to or be
used by or enjoyed by the County, except to the extent permitted by law.
IN WITNESS WHEREOF, the parties to thi agree vent have executed this document by their
duly authorized officers, this 5day of 2013.
(Corporate Seal)
PITKIN COUNTY, COLORADO
ATTEST: By:
TAX/1356984.2
25
Secretary
PITKIN COUNTY PUBLIC EMPLOYEES'
RETIREMENT BOARD
By:
Chairman
TRUSTEE: PITKIN COUNTY EMPLOYEES'
RETIREMENT BOARD
By: /
26
TAX/1356984.2
Chairman