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HomeMy WebLinkAboutC02-327 CCOERAr COLORADO COUNTY OFFICIALS AND EMPLOYEES RETIREMENT ASSOCIATION DEFERRED COMPENSATION PLAN Adopted January 1, 1979 Amended and Restated Effective January 2, 1993 Approved by the Internal Revenue Service by Private Letter Ruling Dated April 22, 1993 Amended and Restated Effective December 4, 1996 Amended and Restated Effective August 27, 1997 Amended and Restated Effective May 11, 2001 Amended and Restated Effective August 16, 2002 PREAMBLE THIS DEFERRED COMPENSATION RETIREMENT PLAN (hereinafter referred to as the "Plan" and known as the Colorado County Officials and Employees Retirement Association Deferred Compensation Plan) is amended and restated effective January 1, 1993, and as further amended and restated effective December 4,1996, and as further amended and restated effective August 27,1997, and as further amended and restated effective May 11, 2001, and as further amended and restated effective August 16, 2002 then Eagle County, -Colorado (hereinafter "Employer"). WMREAS, the Employer established this Plan effective _8/ 16/Oder the name of Colorado County Officials and Employees Retirement Association Deferred Compensation Plan to enable employees who become covered under the Plan to enhance their retirement security by permitting them to enter into agreements with the Employer to defer compensation and receive benefits at retirement, death, and separation from service, and WHEREAS, the Employer desires to amend and restate the Plan to effect certain changes; and VVHEREAS, the Plan shall be maintained for the exclusive benefit of covered employees, and is intended to comply with the eligible deferred compensation plan requirements of Section 457 of the Internal Revenue Code of 1986, as now in effect or as hereafter amended, and regulations thereunder, and other applicable law; NOW, THEREFORE, effective the Employer does hereby amend and restate the Plan as set forth in the following pages. 1%WW SECTION 1 DEFINITIONS The following terms when used herein shall have the following meaning, unless a different meaning is clearly required by the context. 1:1 Applicable Dollar Limit: "Applicable Dollar Limit" means the dollar amount specified in Code section 457(e)(15) (Other definitions and special rules). Section 457(e)(15) as amended by P.L. 107-16 provides the following table: For taxable years beginning in calendar year: The applicable dollar amount: 2002 $11,000 2003 $12,000 2004 $13 9000 2005 $14,000 2006 or thereafter $15,000 Such amounts provided above may be adjusted after 2006 by the Secretary of the Treasury for cost - of -living increases, as determined and set forth in section 457(e)(15)(B). 1.2 Beneficiary: "Beneficiary" means the persons(s) or estate entitled to receive benefits under this Plan after the death of a Participant. 1.3 Code: "Code" means the Internal Revenue Code of 1986, as amended and including all regulations promulgated pursuant thereto. 1.4 Colorado County Officials and Employees Retirement Association : "Colorado County Officials and Employees Retirement Association" (hereinafter CCOERA) means the non- profit Association of Counties, Municipalities, or Special Districts of the State of Colorado established to provide income after retirement for eligible officials and employees of Member Counties, Member Special Districts and Member Municipalities. 1.5 Compensation: "Compensation" means the total remuneration earned by an employee for personal services rendered to the Employer for the calendar year including amounts deferred under this Plan, any other Deferred Compensation Plan, and any other employee benefit plan. 1.6 Deferral: "Deferral" means the annual amount of Compensation that a Participant elects to defer receipt of pursuant to a properly executed Deferred Compensation Agreement. 2 1.7 Deferred Compensation Agreement: "Deferred Compensation Agreement" means the agreement between a Participant and the Employer to defer receipt by the Participant of Compensation not yet earned. Such agreement shall state the Deferral amount to be withheld from a Participant's paycheck and shall become effective no earlier than the first day of any month after it is executed by the Participant and accepted by the CCOERA and the Employer. 1.8 Effective Date: "Effective Date" means , 20 1.9 Eligible Employee: "Eligible Employee" means every officer and employee employedtby the Employer. Additionally, "Eligible Employee" may include an independent contractor who performs services for the Employer. 1.10 Eligible Deferred Compensation Plan or "Eligible Plan": "Eligible Deferred Compensation Plan" or "Eligible Plan" means anyplan defined in Section 457(b) ofthe Code and includes this Plan among others. 1.11 Employer: "Employer" means Eagle county a Member County, Member Municipality, or Member Special District of the Colorado County Officials and Employees Retirement Association, which is an "eligible employer" as defined by I.R.C. §457(e)(1)(A). 1.12 Includible Compensation: "Includible Compensation" means compensation for services performed for the Employer which is currently includible in gross income. In other words, it means Compensation reduced by the following amounts, to the extent such amounts are excludable from gross income: 1 12.1 amounts deferred under this Plan; 1.12.2 amounts deferred under any other Eligible Deferred Compensation Plan"; 1.12.3 employee contributions to a tax-sheltered annuityplan qualified under Section 403(b) of the Code; 1.12.4 contributions or benefits received pursuant to a "Cafeteria Plan" or "Flexible Compensation Plan" established pursuant to Code § 125; 1.12.5 contributions to a qualified deferred compensation plan under I.R.C. section 401(k); 1.12.6 any amount excluded from gross income under section 402(e)(3) or section 402(h)(1)(B) for the taxable year; 1.12.7 any amount with respect to which a deduction is allowable by reason of a contribution to an organization described in section 501(c)(18) for the taxable year. 1.13 Normal Retirement Age: "Normal Retirement Age" means age 70 %2 or other earlier age specified in writing by the Participant. In no event shall Normal Retirement Age be earlier than the earliest date at which one may retire under the Employer's and CCOERA's regular Defined Contribution pension plan. 1.14 Participant: "Participant" means an employee or former employee who is or has been enrolled in the Plan and who retains the right to benefits under the Plan. 3 1.15 Plan: "Plan" means this Colorado County Officials and Employees Retirement Association Deferred Compensation Plan either in its previous or present form or as amended from time to time. 1.16 Plan Year: "Plan Year" means the twelve-month period beginning July 1 and ending June 30 from and after the Effective Date. 1.17 Separation from Service: "Separation from Service" is defined differently for employees and independent contractors. An employee is considered to be separated from service upon the severance of a Participant's employment with the Employer within the meaning of I.R.C. section 402(d)(4)(A)(iii) (relating to lump -sum distributions), including but not limited to retirement, total disability, resignation, dismissal, and death. An independent contractor is considered to be separated from service as set forth in Internal Revenue Service Regulation § 1.457-2(h)(3) upon the expiration of the contract if there is a good faith and complete termination of the contractual relationship, and it is not anticipated that the contractual relationship would be renewed or that the independent contractor would become an employee, within the meaning as is more fully set forth in Reg. § 1.457-2(h)(3). 1.18 Transfer Contribution: means each amount deferred under the Plan pursuant to section 3.6. SECTION 2 PARTICIPATION 2.1 Eligibility for Participation: Each Eligible Employee may become a Participant in this Plan on the first day of the month next following commencement of employment as an Eligible Employee and enrollment pursuant to Section 2.2. Anyperson elected or appointed to a term of office with the Employer shall be deemed to commence employment at the time such person assumes office. 2.2 Enrollment: Eligible Employees may enroll in the Plan by completing a Deferred Compensation Agreement and submitting it to the Employer and CCOERA. Enrollment shall be effective on the first day of the month next following acceptance of the Deferred Compensation Agreement. SECTION 3 DEFERRAL OF COMPENSATION 3.1 Deferral Procedure: Pursuant to a Deferred Compensation Agreement, each Participants Deferral amount shall be deducted from his or her paychecks in approximately equal increments throughout the remainder of the year. The Deferral amount shall not be included as gross income on a Participant's federal income tax withholding statement (W-2 Form). 4 3.2 Maximum Deferral 3.2.1 Primary Limitation. -- The Deferral amount (other than rollover amounts) in any taxable year may not exceed the lesser of 3.2.1.1 The Applicable Dollar Limit, as defined above at section 1.1; or 3.2.1.2 100% of the Participant's Includible Compensation. 3.2.2 Catch-up Limitations. -- 3.2.2.1 Traditional Catch-up. A Participant may trigger the catch-up limitation by electing a Normal Retirement Age pursuant to Section 1.12. The maximum Deferral amount of each of a Participant's last three (3) taxable years ending before he or she attains Normal Retirement age, is the lesser of: 3.2.2.1.1 Twice the Applicable Dollar Limit, or 3.2.2.1.2 the primary limitation amount determined under Section 3.2.1 for the current year, plus so much of the primary limitation amount that was not utilized in prior taxable years in which the employee was eligible to participate in the Plan, beginning after December 31, 1978. A Participant may use a prior year only if the Deferrals under the Plan in existence during that year were subject to the maximum deferral amount described in Treasury Regulation § 1.457-2(e) (1982). 3.2.2.1.3 The catch-up limitation expressed above in section 3.2.2.1.1 and 3.2.2.1.2 is available to a Participant only during one three-year period. If a Participant uses the catch-up limitation and then postpones Normal Retirement Age or returns to work after retiring, the limitation shall not be available again before a subsequent retirement. A Participant may not elect to apply the catch-up provisions more than once, even if the catch-up was used in fewer than all of the years preceding retirement. 3.2.2.2 Age 50 or Older Catch-up. In the case of an individual who is an eligible participant, as defined by Code section 414(v)(attains age 50 by the end of the taxable year), and who is a participant in CCOERA's Deferred Compensation Plan, the maximum deferral amount shall be, at the option of the participant: 3.2.2.2.1 The Traditional Catch-up, stated in 3.2.2.1, and subject to such section's requirements; or 3.2.2.2.2 That expressed in 3.2.1 (Normal primary limits), plus the applicable dollar amount for the taxable year determined under section 414(v)(2)(B)(i). Section 414(v)(2)(B)(i)asamended bvP.L_ 107-llSnrnviriecti,Pfnllr,�=,;,,nt�t,lo. For taxable years beginning in calendar year: •V ail &"UlV. The applicable dollar amount: 2002 $12000 2003 $2,000 2004 $3,000 2005 $4,000 2006 or thereafter $52000 5 1fte/ Such amounts provided above may be adjusted after 2006 by the Secretary of the Treasury for cost -of -living increases, as determined and set forth in section 414(v)(2)(C). 3.2.2.3 Coordination With Other Plans. --If a Participant participates in more than one Eligible State Deferred Compensation Plan, the total deferral under all plans shall be subject to the maximum limitations specified in Section 3.2. 3.3 Minimum Deferral: A Participant must comply with any minimum monthly deferral requirements which maybe set by the Employer from time to time on a nondiscriminatorybasis. i 3.4 Changing Deferrals: A Participant may change or cancel Deferrals with respect to Compensation not yet earned by executing a new Deferred Compensation Agreement or a written notice of cancellation. The change or cancellation shall be effective on the first day of the month following completion of a new Agreement and acceptance by CCOERA no earlier than the first day of the pay period following notice to CCOERA. 3.5 Suspension of Deferrals 3.5.1 Voluntary. -- A Participant may suspend Deferrals by giving Employer and CCOERA written notice. Following suspension, a Participant mayreinstate Deferrals by executing a new Deferred Compensation Agreement and delivering it to the Employer and CCOERA. Reinstatement shall be effective on the first day of the month following completion of the new Agreement and acceptance by the Employer and CCOERA. 3.5.2 Automatic. -- Deferrals shall automatically be suspended for any month in which there are insufficient monies available to make the entire deduction agreed upon, and automatically reinstated in the next month that Compensation is sufficient to make the agreed upon Deferral. 3.6 Acceptance of Transfers: CCOERA shall credit to a Participant's Account the amount transferred from another eligible deferred compensation plan (within the meaning of I.R.C. §457(b)). Any transferred amount is not treated as a deferral subject to the limitation of 3.2.1 except for the amount of deferred compensation during the Participant's taxable year in which the transfer occurred which is treated as deferrals subject to the limitation of 3.2.1. The amount of any deferred compensation under the plan from which the transfer is made shall be taken into account in computing the catch-up limitation under 3.2.2 to the extent required by that same section. The Plan shall not accept any transfers from individual retirement account described in section 408(a) ofthe Code, an individual retirement annuity described in section 408(b) ofthe Code, an annuity plan described in section 403(b) of the Code, or a qualified plan described in section 401(a) of the Code. Such transfers or rollovers are accepted by CCOERA's Retirement Plan. 3.7 Correction of Contributions. If during any taxable year of a Participant, the total amount of all contributions exceeds that allowed in Code section 457, as indexed, then the amounts in excess of the annual allowable amount shall be returned to the Participant and included in the Participant's gross income for the taxable year for which such deferral relates. rol Ifto/ SECTION 4 TI1\4E OF BENEFIT PAYMENT 4.1 Eligibility for Payment: Except for Transfers to other Plans, as set forth in Section 5.5 and 5.6, payments from the Plan shall be made only upon Separation from Service, as defined in Section 1.16. No payments will be made from the Plan upon any financial hardship of the Participant, even if such hardship results from an unforeseeable emergency. 4.2 Benefit Commencement Date: 4.2.1 Time of Commencement. -- Benefit payments to a Participant shall commence 60 days after the date of Separation from Service, unless the Participant elects a later date. 4.2.2 Participant Election. -- A Participant or Beneficiary may make an election to defer commencement of benefits to a date later than the automatic commencement time under Section 4.21, according to the rules and regulations adopted by CCOERA. SECTION 5 FORM OF BENEFIT PAYMENT 5.1 Election: A Participant or Beneficiary may elect the form of payment of benefits, and may revoke that election (with or without a new election) at any time before 30 days preceding the benefit commencement date, by notifying the Employer and CCOERA in writing. 5.2 Forms of Payment: A Participant or Beneficiary may elect payment in the following forms: 5.2.1 Lump Sum. -- A payment of all or a portion of the balance in a Participant's account. 5.2.2 Annuity. -- All or a portion of the balance in a Participant's account may be applied to the purchase of a non-transferrable annuity or endowment income contract, with or without right to refund, with or without provisions guaranteeing payment for a fixed number of years, and the cost thereof charged against the distribution to which he or she is entitled. CCOERA will be the listed owner of any such annuity. 5.2.3 Periodic Installments. -- All or a portion of the balance in a Participant's account may be distributed by periodic installments over a reasonable time, and in amounts which, except for the final distribution, shall be not less than three hundred dollars ($300) for each year. 5.2.4 Direct Rollover. - - A Participant may elect, at the time and in the manner prescribed by CCOERA, to have any portion of an eligible rollover distribution that is equal to or at least $500 paid directly to an eligible retirement plan specified by the Participant in a direct rollover. 5.2.4.1 Definitions. 5.2.4.1.1 Eligible rollover distribution. An eligible rollover distribution is any distribution of all or any portion of the balance to the credit of the Participant, except that an eligible rollover distribution does not include: 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 Participant or the joint lives (or joint life expectancies) of the Participant and the Participant's designated beneficiary, or for a specified period of ten years or more; and any distribution 7 M MI to the extent such distribution is required under section 401(a)(9) of the Internal Revenue Code (minimum distributions). 5.2.4.1.2 Eligible retirement plan. An eligible retirement plan is 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(b) of the Code, a qualified plan described in section 401(a) of the Code, or an eligible deferred compensation plan described in section 457(b) of the Code, that accepts the Participant's eligible rollover distribution. 5.2.4.1.3 Direct rollover. A direct rollover is a payment by the plan to the eligible retirement plan specified by the distributee. Distribution from this Plan must be made primarily for the benefit of Participants. With respect to distributions under the Plan made for calendar years beginning on or after January 1, 2001, the Plan will apply the minimum distribution requirements of section 401(a)(9) of the Internal Revenue Code in accordance with the regulations under section 401(a)(9) that were proposed in January 2001, notwithstanding any provision of the Plan -to the contrary. The amendment shall continue in effect until the end of the last calendar year beginning before the effective date of final regulations under section 401(a)(9) or such other date as may be specified in guidance published by the Internal Revenue Service. 5.3 Failure to Elect: If a Participant or Beneficiary fails to elect a form of payment before 30 days preceding the benefit commencement date orNormal Retirement Date, the account shall be paid in a lump sum. 5.4 Distribution by Plan. The entire account of a Participant may, at the sole option of the Trustee, be distributed to the Participant, and the Participant's account closed, if 5.4.1 The entire amount in such account, including all income attributable to deferred amounts in such account, does not exceed $5,000.00 5.4.2 No amount has been deferred under the plan with respect to such Participant during the 2-year period ending on the date of the distribution 5.4.3 There has been no prior distribution under this Section 5.4 to the Participant. 5.5 Transfer to Eligible Plan. Any portion of the account of a Participant may, at the written election of the Participant, be transferred to another eligible deferred compensation plan (within the meaning of I.R.C. §457(b)) that is offered by the Participant's current employer. 5.6 Transfers to a Defined Benefit Plan. A participant in the CCOERA Deferred Compensation Plan may transfer funds directly to an Internal Revenue Code Section 401(a) defined benefit plan for purchase of service credit. 11%� fir✓ 6.2 Failure to Designate a Beneficiary: If no designated Beneficiary survives the Participant and benefits are payable following the Participant's death, CCOERA may direct that payment of benefits be made to the person or persons in the first of the following classes of successive preference Beneficiaries. The Participant's: (a) Spouse; (b) Descendants, by representation, as defined in C.R.S. § 15-11-106; (c) Parents; (d) Brothers and Sisters, share and share alike; (e) Estate. SECTION 7 PLAN AD imsTRATION 7.1 Plan Administrator: The Plan shall be administered by the Colorado County Officials and Employees Retirement Association. The CCOERA shall have responsibility for operation and administration of the Plan and shall direct payment of Plan benefits. CCOERA shall have the power and authority to adopt, interpret, alter, amend or revoke rules and regulations necessary to administer the Plan and to delegate ministerial duties and employ such outside professionals as may be required for prudent administration of the Plan. The CCOERA shall also have authority to enter agreements on behalf of the employer necessary to implement this Plan. A member of CCOERA or its staff may participate in the Plan, but shall not be entitled to make decisions solely with respect to his or her own participation. 7.2 Ownership of Assets: 7.2.1 Assets held in trust. All amounts deferred under this Plan, all property and rights purchased with such amounts, and all income attributable to such amounts, property or rights shall, until made available to the Participant or Beneficiary, be held in THE COLORADO COUNTY OFFICIALS AND EMPLOYEES RETIREMENT ASSOCIATION DEFERRED COMPENSATION PLAN TRUST for the exclusive benefit of participants and their beneficiaries. Colorado County Officials and Employees Retirement Association is Trustee of the Trust. 7.3 Plan -to -Plan Transfers: A distribution ofamounts deferred by a former Participant ofthis Plan may not commence upon Separation from service, but instead may be automatically transferred to another Eligible Deferred Compensation Plan, of which the former Participant has become a Participant if. 7.3.1 The Plan receiving such amounts provides for their acceptance, and 7.3.2 A Participant Separates from Service with the Employer in order to accept employment with another "eligible" entity; 7.3.3 Such transfer is not in violation of any State or Federal law; 7.3.4 A Participant, within 30 days of Separation from Service, directs, in writing, for CCOERA to transfer amounts in such account to the receiving Plan. 10 7.4 Accounts and Expenses: CCOERA shall establish and maintain accounts on behalf of each Participant. Accounts shall be valued at least once each Plan Year and each Participant shall receive written notice of his or her account balance following such valuation. Account balances shall reflect the Deferral amount, any earnings attributable to such amount, and shall be reduced by administrative, investment, legal, accounting, and other fees, in such amounts and at such times as the CCOERA deems necessary for the maintenance of this Plan. 7.5 Investments: CCOERA is authorized to invest the --assets of this Plan, without distinction between principal and income, in such bonds, notes, debentures, mortgages, equipment trust certificates, investment trust certificates, preferred or common stock, or in such other property, real or personal, either within or without the State of Colorado, as CCOERA in its sole discretion may deem advisable, being limited, however, as to types of investments pursuant to § 24-54-1112, Colorado Revised Statutes, as amended. CCOERA may hold any portion of the assets of the Plan in cash or in a savings account or other bank account. CCOERA, its governing board and employees and agents, shall not be liable for the making, retaining or disposing of any investment made by it as herein provided, nor for any loss or diminution of the assets ofthe Plan, except if such loss or diminution results from its own willful misconduct or lack of good faith, and shall be indemnified and saved harmless by the assets of the Plan from and against all other liability to which it may be subjected by reason of any such act or conduct, omission, or the making, retaining or disposing of an investment or reinvestment made by it hereunder, including all expenses reasonably incurred in its defense in case the CCOERA fails to provide such defense. If any Participant or his Beneficiary brings legal action against the CCOERA, members of its Governing Board or employees or agents, the result of which shall be adverse to the party bringing the action, or if any dispute shall be adverse to the party bringing the action, or if any dispute shall arise as to the person or persons entitled to distributions hereunder, the cost of participating in such action or dispute shall be charged to such extent as is possible directly to the share of the said Participant or his Beneficiary or estate, and the excess, if any shall be paid by the Participant. SECTION 8 AMENDMENT AND TER CNATION 8.1 Amendment: The Employer shall have the right to amend this Plan, at any time and from time to time, in whole or in part. The Employer shall notify each Participant in writing of any Plan amendment. 8.2 Termination: Although the Employer has established this Plan with a bona fide intention and expectation to maintain the Plan indefinitely, the Employer may terminate or discount the Plan in whole or in part, at any time without any liability for such termination or discontinuance. Upon Plan termination, all Deferrals shall cease. Unless a Transfer to an Eligible Plan is initiated by a Participant pursuant to Section 5.5 or 5.6, CCOERA shall retain all Deferrals until each Participant Separates from Service, and benefits continence under Section 5.1 and 5.2, in the form determined under Section 6. 11 u SECTION 9 MISCELLANEOUS 9.1 Limitation of Rights; Employment Relationship: Neither the establishment of this Plan nor any modification thereof, nor the creation of any fund or account, nor the payment of any benefits, shall be construed as giving a Participant or other person any legal or equitable right against the Employer except as provided in the Plan. In no event shall the terms of employment of any employee be modified or in any way be affected by the Plan. 9.2 Limitation on Assignment: Benefits under this Plan may not be assigned, sold, transferred, or encumbered, and any attempt to do so shall be void. A Participant's or Beneficiary's interest in benefits under the Plan shall not be subject to debts or liabilities of any kind and shall not be subject to pledge, attachment, garnishment or other legal process. 9.3 Representations: The Employer does not represent or guarantee that any particular federal or state income, payroll, personal property or other tax consequence will result from participation in this Plan. A Participant should consult with professional tax advisors to determine the tax consequences of his or her participation. Furthermore, the Employer does not represent or guarantee successful investment of Deferrals, and shall not be required to repay any loss which may result from such investment or lack of investment. 9.4 Severability: If a court of competent jurisdiction holds anyprovisions of this Plan to be invalid or unenforceable, the remaining provisions of the Plan shall continue to be fully effective. 9.5 Applicable Law: This Plan shall be construed in accordance with applicable federal law and, to the extent otherwise applicable, the laws of the State of Colorado. The Colorado County Officials and Employees Retirement Association Deferred Compensation Plan is amended and restated to be effective as appearing on the cover page of this Plan. IN WITNESS WHEREOF, the Employer has caused this Plan to be executed by its duly authorized representative this lt)OL day of DA4 & ,,)o_. , 20_(2R. EAGLE COUNTY STATE OF COLORADO BY AND THROUGH ITS BOARD OF COUNTY COMMISSIONERS EMPLOYER: Po.� `%m/ DISTRIBUTION O_rieinals to: Contract Book 2. .3. 4. Copies to: 1. Acroundng 2.. i