[Ord. 785, 3/12/2013, Art. I]
1.
The employer hereby establishes and maintains the employer's Deferred
Compensation Plan and Trust, hereafter referred to as the "plan."
The plan consists of the provisions set forth in this document.
2.
The primary purpose of this plan is to provide retirement income
and other deferred benefits to the employees of the employer and the
employees' beneficiaries in accordance with the provisions of § 457
of the Internal Revenue Code of 1986, as amended (the "Code").
3.
This plan shall be an agreement solely between the employer and participating
employees. The plan and trust forming a part hereof are established
and shall be maintained for the exclusive benefit of participants
and their beneficiaries. No part of the corpus or income of the trust
shall revert to the employer or be used for or diverted to purposes
other than the exclusive benefit of participants and their beneficiaries.
[Ord. 785, 3/12/2013, Art. II]
Twice the dollar limitation.
The bookkeeping account maintained for each participant reflecting
the cumulative amount of the participant's deferred compensation,
including any income, gains, losses, or increases or decreases in
market value attributable to the employer's investment of the participant's
deferred compensation, and further reflecting any distributions to
the participant's deferred compensation.
The person or persons named in writing to carry out certain
nondiscretionary administrative functions under the plan, as hereinafter
described. The employer may remove any person as administrator upon
75 days' advance notice in writing to such person, in which case the
employer shall name another person or persons to act as administrator.
The administrator may resign upon 75 days' advance notice in writing
to the employer, in which case the employer shall name another person
or persons to act as administrator.
April 1 of the calendar year after the plan year the participant
attains age 70 1/2 or, if later, has a severance event.
The person or persons designated by the participant in his or her joinder agreement who shall receive any benefits payable hereunder in the event of the participant's death. In the event that the participant names two or more beneficiaries, each beneficiary shall be entitled to equal shares of the benefits payable at the participant's death, unless otherwise provided in the participant's joinder agreement. If no beneficiary is designated in the joinder agreement, if the designated beneficiary predeceases the participant, or if the designated beneficiary does not survive the participant for a period of 15 days, then the estate of the participant shall be the beneficiary. If a married participant resides in a community or marital property state, the participant shall be responsible for obtaining appropriate consent of his or her spouse in the event the participant designates someone other than his or her spouse as beneficiary. The preceding sentence shall not apply with respect to a deemed IRA under § 1-559.
A separate account or annuity established under the plan
that complies with the requirements of § 408(q) of the Code,
the Income Tax Regulations thereunder, and any other IRS guidance.
The amount of includable compensation otherwise payable to the participant which the participant and the employer mutually agree to defer hereunder, any amount credited to a participant's account by reason of a transfer under § 1-556, Subsection 9 or 10, a rollover under § 1-556, Subsection 11, or any other amount which the employer agrees to credit to a participant's account.
The applicable dollar amount within the meaning of § 457(b)(2)(A)
of the Code, as adjusted for the cost-of-living in accordance with
§ 457(e)(15) of the Code.
Any individual employed by the employer on a regular, full-time
basis as a police officer of the employer's police force.
Borough of Beaver, which is a political subdivision, agency
or instrumentality of the Commonwealth of Pennsylvania, described
in § 457(e)(1)(A) of the Code.
Includable compensation of a participant means "compensation," as defined in § 415(c)(3) of the Code, for services performed for the employer. Includable compensation shall be determined without regard to any community property laws. For purposes of a participant's joinder agreement only and not for purposes of the limitations in § 1-555, includable compensation shall include pretax contributions (excluding direct employer contributions) to an integral part trust of the employer providing retiree health care benefits.
An agreement entered into between an employee and the employer,
including any amendments or modifications thereof. Such agreement
shall fix the amount of deferred compensation, specify a preference
among the investment alternatives designated by the employer, designate
the employee's beneficiary or beneficiaries, and incorporate the terms,
conditions, and provisions of the plan by reference.
Age 70 1/2, unless the participant has elected an alternate normal retirement age by written instrument delivered to the administrator prior to a severance event. A participant's normal retirement age determines the period during which a participant may utilize the 457 catch-up dollar limitation of § 1-555, Subsection 2B, hereunder. Once a participant has to any extent utilized the catch-up limitation of § 1-555, Subsection 2B, his normal retirement age may not be changed.
A participant's alternate normal retirement age may not be
earlier than the earliest date that the participant will become eligible
to retire and receive immediate, unreduced retirement benefits under
the employer's basic defined benefit retirement plan covering the
participant (or a money purchase pension plan in which the participant
also participates if the participant is not eligible to participate
in a defined benefit plan), and may not be later than the date the
participant will attain age 70 1/2 If the participant will not
become eligible to receive benefits under a basic defined benefit
retirement plan (or money purchase pension plan, if applicable) maintained
by the employer, the participant's alternate normal retirement age
may not be earlier than 65 and may not be later than age 70 1/2.
In no event may a participant's normal retirement age be different
than the normal retirement age under the employer's other 457(b) plans,
if any.
In the event the plan has participants that include qualified
police or firefighters (as defined under § 415(b)(2)(H)(ii)(I)
of the Code), a normal retirement age may be designated for such qualified
police or firefighters that is not earlier than age 40 or later than
age 70 1/2. Alternatively, qualified police or firefighters may
be permitted to designate a normal retirement age that is between
age 40 and age 70 1/2.
Any employee who has joined the plan pursuant to the requirements of § 1-554. For purposes of § 1-556, Subsection 11, of the plan, the term participant includes an employee or former employee of the employer who has not yet received all of the payments of benefits to which he/she is entitled under the plan.
100 percent of the participant's includable compensation
available to be contributed as deferred compensation for the taxable
year.
The calendar year.
The first date upon which both of the following shall have
occurred with respect to a participant: severance event and attainment
of age 65.
A severance of the participant's employment with the employer
within the meaning of § 457(d)(1)(A)(ii) of the Code.
In general, a participant shall be deemed to have experienced
a severance event for purposes of this plan when, in accordance with
the established practices of the employer, the employment relationship
is considered to have actually terminated. In the case of a participant
who is an independent contractor of the employer, a severance event
shall be deemed to have occurred when the participant's contract under
which services are performed has completely expired and terminated,
there is no foreseeable possibility that the employer will renew the
contract or enter into a new contract for the participant's services,
and it is not anticipated that the participant will become an employee
of the employer, or such other events as may be permitted under the
Code.
The trust created under § 1-556 of the plan which shall consist of all compensation deferred under the plan, plus any income and gains thereon, less any losses, expenses and distributions to participants and beneficiaries.
[Ord. 785, 3/12/2013, Art. III]
1.
Duties of the Employer. The employer shall have the authority to
make all discretionary decisions affecting the rights or benefits
of participants which may be required in the administration of this
plan. The employer's decisions shall be afforded the maximum deference
permitted by applicable law.
2.
Duties of Administrator. The administrator, as agent for the employer,
shall perform nondiscretionary administrative functions in connection
with the plan, including the maintenance of participants' accounts,
the provision of periodic reports of the status of each account, and
the disbursement of benefits on behalf of the employer in accordance
with the provisions of this plan.
[Ord. 785, 3/12/2013, Art. IV]
1.
Initial Participation. An employee may become a participant by entering
into a joinder agreement prior to the beginning of the calendar month
in which the joinder agreement is to become effective to defer compensation
not yet earned, or such other date as may be permitted under the Code.
A new employee may defer compensation in the calendar month during
which he or she first becomes an employee if a joinder agreement is
entered into on or before the first day on which the employee performs
services for the employer.
2.
Amendment of Joinder Agreement. A participant may amend an executed
joinder agreement to change the amount of includable compensation
not yet earned which is to be deferred (including the reduction of
such future deferrals to zero). Such amendment shall become effective
as of the beginning of the calendar month commencing after the date
the amendment is executed, or such other date as may be permitted
under the Code. A participant may at any time amend his or her joinder
agreement to change the designated beneficiary, and such amendment
shall become effective immediately.
[Ord. 785, 3/12/2013, Art. V]
1.
Normal Limitation. Except as provided in Subsection 2, the maximum amount of deferred compensation for any participant for any taxable year, shall not exceed the lesser of the dollar limitation or the percentage limitation.
2.
Catch-Up Limitations.
A.
Catch-up contributions for participants age 50 and over a participant who has attained the age of 50 before the close of the plan year, and with respect to whom no other elective deferrals may be made to the plan for the plan year by reason of the normal limitation of Subsection 1, may enter into a joinder agreement to make elective deferrals in addition to those permitted by the normal limitation in an amount not to exceed the lesser of:
(1)
The applicable dollar amount as defined in § 414(v)(2)(B)
of the Code, as adjusted for the cost-of-living in accordance with
§ 414(v)(2)(C) of the Code.
(2)
The excess (if any) of:
(a)
The participant's includable compensation for the year.
(b)
Any other elective deferrals of the participant for such year which are made without regard to this Subsection 2A.
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An additional contribution made pursuant to this Subsection 2A shall not, with respect to the year in which the contribution is made, be subject to any otherwise applicable limitation contained in Subsection 1 above, or be taken into account in applying such limitation to other contributions or benefits under the plan or any other plan. This Subsection 2A shall not apply in any year to which a higher limit under Subsection 2B applies.
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B.
Last Three Years Catch-Up Contribution. For each of the last three
taxable years for a participant ending before his or her attainment
of normal retirement age, the maximum amount of deferred compensation
shall be the lesser of:
(1)
The 457 catch-up dollar limitation.
(2)
The sum of:
(a)
The normal limitation for the taxable year.
(b)
The normal limitation for each prior taxable year of the participant
commencing after 1978 less the amount of the participant's deferred
compensation for such prior taxable years. A prior taxable year shall
be taken into account under the preceding sentence only if (x) the
participant was eligible to participate in the plan for such year,
and (y) compensation (if any) deferred under the plan (or such other
plan) was subject to the normal limitation.
3.
Sick, Vacation and Back Pay. If the employer so elects, a participant
may defer all or a portion of the value of the participant's accumulated
sick pay, accumulated vacation pay and/or back pay, provided that
such deferral does not cause total deferrals on behalf of the participant
to exceed the dollar limitation or percentage limitation (including
any catch-up dollar limitation) for the year of deferral. The election
to defer such sick, vacation and/or back pay must be made in a manner
and at a time permitted under § 1.457-4(d) of the Income
Tax Regulations.
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For plan years beginning before January 1, 2009, pursuant to
proposed IRS regulations issued under § 415 of the Code,
the plan may permit deferrals from compensation, including sick, vacation
and back pay, so long as the amounts are paid within 2 1/2 months
following severance from employment and the other requirements of
§§ 457(b) and 415 of the Code are met. For plan years
beginning on or after January 1, 2009, pursuant to final IRS regulations
issued under § 415 of the Code, the plan may permit deferrals
from compensation, including sick, vacation and back pay, so long
as the amounts are paid by the later of: (A) 2 1/2 months following
severance from employment, and (B) the end of the calendar year that
includes the date of such severance from employment, and the other
requirements of §§ 457(b) and 415 of the Code are met.
Additionally, the agreement to defer such amounts must be entered
into prior to the first day of the month in which the amounts otherwise
would be paid or made available.
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4.
Other Plans. Notwithstanding any provision of the plan to the contrary,
the amount excludable from a participant's gross income under this
plan or any other eligible deferred compensation plan under § 457(b)
of the Code shall not exceed the limits set forth in §§ 457(b)
and 414(v) of the Code.
5.
Excess Deferrals. Any amount that exceeds the maximum dollar limitation
or percentage limitation (including any applicable catch-up dollar
limitation) for a taxable year, shall constitute an excess deferral
for that taxable year. Any excess deferral shall be distributed in
accordance with the requirements for excess deferrals under the Code
and § 1.457-4(e) of the Income Tax Regulations or other
applicable Internal Revenue Service guidance.
6.
Protection of Person Who Serves in a Uniformed Service. An employee
whose employment is interrupted by qualified military service under
§ 414(u) of the Code or who is on leave of absence for qualified
military service under § 414(u) of the Code may elect to
contribute additional deferred compensation upon resumption of employment
with the employer equal to the maximum deferred compensation that
the employee could have elected during that period if the employee's
employment with the employer had continued (at the same level of includable
compensation) without the interruption or leave, reduced by deferred
compensation, if any, actually made for the employee during the period
of the interruption or leave. This right applies for five years following
the resumption of employment (or, if sooner, for a period equal to
three times the period of the interruption or leave).
[Ord. 785, 3/12/2013, Art. VI]
1.
Investment of Deferred Compensation. A trust is hereby created to hold all the assets of the plan (except deemed IRA contributions and earnings thereon held pursuant to § 1-559) for the exclusive benefit of participants and beneficiaries, except that expenses and taxes may be paid from the trust as provided in Subsection 3. The trustee shall be the employer or such other person that agrees to act in that capacity hereunder.
2.
Investment Powers. The trustee or the administrator, acting as agent for the trustee, shall have the powers listed in this section with respect to investment of trust assets, except to the extent that the investment of trust assets is directed by participants, pursuant to Subsection 5 or to the extent that such powers are restricted by applicable law.
A.
To invest and reinvest the trust without distinction between principal
and income in common or preferred stocks, shares of regulated investment
companies and other mutual funds, bonds, loans, notes, debentures,
certificates of deposit, contracts with insurance companies including,
but not limited to, insurance, individual or group annuity, deposit
administration, guaranteed interest contracts, and deposits at reasonable
rates of interest at banking institutions including, but not limited
to, savings accounts and certificates of deposit. Assets of the trust
may be invested in securities that involve a higher degree of risk
than investments that have demonstrated their investment performance
over an extended period of time.
B.
To invest and reinvest all or any part of the assets of the trust
in any common, collective or commingled trust fund that is maintained
by a bank or other institution and that is available to employee plans
described under § 457 or 401 of the Code, or any successor
provisions thereto, and during the period of time that an investment
through any such medium shall exist, to the extent of participation
of the plans the declaration of trust of such commonly collective,
or commingled trust fund shall constitute a part of this plan.
C.
To invest and reinvest all or any part of the assets of the trust
in any group annuity, deposit administration or guaranteed interest
contract issued by an insurance company or other financial institution
on a commingled or collective basis with the assets of any other 457
plan or trust qualified under § 401(a) of the Code or any
other plan described in § 401(a)(24) of the Code, and such
contract may be held or issued in the name of the administrator, or
such custodian as the administrator may appoint, as agent and nominee
for the employer. During the period that an investment through any
such contract shall exist, to the extent of participation of the plan,
the terms and conditions of such contract shall constitute a part
of the plan.
D.
To hold cash awaiting investment and to keep such portion of the
trust in cash or cash balances, without liability for interest, in
such amounts as may from time to time be deemed to be reasonable and
necessary to meet obligations under the plan or otherwise to be in
the best interests of the plan.
E.
To hold, to authorize the holding of, and to register any investment
to the trust in the name of the plan, the employer, or any nominee
or agent of any of the foregoing, including the administrator, or
in bearer form, to deposit or arrange for the deposit of securities
in a qualified central depository even though, when so deposited,
such securities may be merged and held in bulk in the name of the
nominee of such depository with other securities deposited therein
by any other person, and to organize corporations or trusts under
the laws of any jurisdiction for the purpose of acquiring or holding
title to any property for the trust, all with or without the addition
of words or other action to indicate that property is held in a fiduciary
or representative capacity but the books and records of the plan shall
at all times show that all such investments are part of the trust.
F.
Upon such terms as may be deemed advisable by the employer or the
administrator, as the case may be, for the protection of the interests
of the plan or for the preservation of the value of an investment,
to exercise and enforce by suit for legal or equitable remedies or
by other action, or to waive any right or claim on behalf of the plan
or any default in any obligation owing to the plan, to renew, extend
the time for payment of, agree to a reduction in the rate of interest
on, or agree to any other modification or change in the terms of any
obligation owing to the plan, to settle, compromise, adjust, or submit
to arbitration any claim or right in favor of or against the plans
to exercise and enforce any and all rights of foreclosure, bid for
property in foreclosure, and take a deed in lieu of foreclosure with
or without paying consideration therefor, to commence or defend suits
or other legal proceedings whenever any interest of the plan requires
it, and to represent the plan in all suits or legal proceedings in
any court of law or equity or before any body or tribunal.
G.
To employ suitable consultants, depositories, agents, and legal counsel
on behalf of the plan.
H.
To open and maintain any bank account or accounts in the name of
the plan, the employer, or any nominee or agent of the foregoing,
including the administrator, in any bank or banks.
I.
To do any and all other acts that may be deemed necessary to carry
out any of the powers set forth herein.
3.
Taxes and Expenses. All taxes of any and all kinds whatsoever that
may be levied or assessed under existing or future laws upon the plan,
or in respect to the trust, or the income thereof, and all commissions
or acquisitions or dispositions of securities and similar expenses
of investment and reinvestment of the trust, shall be paid from the
trust. Such reasonable compensation of the administrator, as may be
agreed upon from time to time by the employer and the administrator,
and reimbursement for reasonable expenses incurred by the administrator
in performance of its duties hereunder (including, but not limited
to, fees for legal, accounting, investment and custodial services)
shall also be paid from the trust.
4.
Payment of Benefits. The payment of benefits from the trust in accordance
with the terms of the plan may be made by the administrator, or by
any custodian or other person so authorized by the employer to make
such disbursement. The administrator, custodian or other person shall
not be liable with respect to any distribution of trust assets made
at the direction of the employer.
5.
Investment Funds. In accordance with uniform and nondiscriminatory
rules established by the employer and the administrator, the participant
may direct his or her accounts to be invested in one or more investment
funds available under the plan; provided, however, that the participant's
investment directions shall not violate any investment restrictions
established by the employer. Neither the employer, the administrator,
nor any other person shall be liable for any losses incurred by virtue
of following such directions or with any reasonable administrative
delay in implementing such directions.
6.
Valuation of Accounts. As of each accounting date, the plan assets
held in each investment fund offered shall be valued at fair market
value and the investment income and gains or losses for each fund
shall be determined. Such investment income and gains or losses shall
be allocated proportionately among all Account balances on a fund-by-fund
basis. The allocation shall be in the proportion that each such account
balance as of the immediately preceding accounting date bears to the
total of all such account balances as of that accounting date. For
purposes of this section, all account balances include the account
balances of all participants and beneficiaries.
8.
Crediting of Accounts. The participant's account shall reflect the amount and value of the investments or other property obtained by the employer through the investment of the participant's deferred compensation pursuant to Subsections 5 and 6. It is anticipated that the employer's investments with respect to a participant will conform to the investment preference specified in the participant's joinder agreement, but nothing herein shall be construed to require the employer to make any particular investment of a participant's deferred compensation. Each participant shall receive periodic reports, not less frequently than annually, showing the then current value of his or her account.
9.
Post-Severance Transfers Among Eligible Deferred Compensation Plans.
A.
Incoming Transfers. A transfer may be accepted from an eligible deferred
compensation plan maintained by another employer and credited to a
participant's or beneficiary's account under the plan if:
(1)
In the case of a transfer for a participant, the participant
has had a severance event with that employer and become an employee
of the employer.
(2)
The other employer's plan provides that such transfer will be
made.
(3)
The participant or beneficiary whose deferred amounts are being
transferred will have an amount immediately after the transfer at
least equal to the deferred amount immediately before the transfer.
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The employer may require such documentation from the predecessor
plan as it deems necessary to effectuate the transfer in accordance
with § 457(e)(10) of the Code, to confirm that such plan
is an eligible deferred compensation plan within the meaning of § 457(b)
of the Code, and to assure that transfers are provided for under such
plan. The employer may refuse to accept a transfer in the form of
assets other than cash, unless the employer and the administrator
agree to hold such other assets under the plan.
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B.
Outgoing Transfers. An amount may be transferred to an eligible deferred
compensation plan maintained by another employer, and charged to a
participant's or beneficiary's account under this plan, if:
(1)
In the case of a transfer for a participant, the participant
has a severance event with the employer and becomes an employee of
the other employer.
(2)
The other employer's plan provides that such transfer will be
accepted.
(3)
The participant or beneficiary and the employers have signed
such agreements as are necessary to assure that the employer's liability
to pay benefits to the participant has been discharged and assumed
by the other employer.
(4)
The participant or beneficiary whose deferred amounts are being
transferred will have an amount immediately after the transfer at
least equal to the deferred amount immediately before the transfer.
The employer may require such documentation from the other plan as
it deems necessary to effectuate the transfer, to confirm that such
plan is an eligible deferred compensation plan within the meaning
of § 457(b) of the Code, and to assure that transfers are
provided for under such plan. Such transfers shall be made only under
such circumstances as are permitted under § 457 of the Code
and the regulations thereunder.
10.
Transfers Among Eligible Deferred Compensation Plans of the Employer.
A.
Incoming Transfers. A transfer may be accepted from another eligible
deferred compensation plan maintained by the employer and credited
to a participant's or beneficiary's account under the plan if:
(1)
The employer's other plan provides that such transfer will be
made.
(2)
The participant or beneficiary whose deferred amounts are being
transferred will have an amount immediately after the transfer at
least equal to the deferred amount immediately before the transfer.
(3)
The participant or beneficiary whose deferred amounts are being
transferred is not eligible for additional annual deferrals in the
plan unless the participant or beneficiary is performing services
for the employer.
B.
Outgoing Transfers. A transfer may be accepted from another eligible
deferred compensation plan maintained by the employer and credited
to a participant's or beneficiary's account under the plan if:
(1)
The employer's other plan provides that such transfer will be
accepted.
(2)
The participant or beneficiary whose deferred amounts are being
transferred will have an amount immediately after the transfer at
least equal to the deferred amount immediately before the transfer.
(3)
The participant or beneficiary whose deferred amounts are being
transferred is not eligible for additional annual deferrals in the
employer's other eligible deferred compensation plan unless the participant
or beneficiary is performing services for the employer.
11.
Eligible Rollover Distributions.
A.
Incoming Rollovers. An eligible rollover distribution may be accepted
from an eligible retirement plan and credited to a participant's account
under the plan. The employer may require such documentation from the
distributing plan as it deems necessary to effectuate the rollover
in accordance with § 402 of the Code and to confirm that
such plan is an eligible retirement plan within the meaning of § 402(c)(8)(B)
of the Code. The plan shall separately account (in one or more separate
accounts) for eligible rollover distributions from any eligible retirement
plan.
B.
Outgoing Rollovers. Notwithstanding any provision of the plan to
the contrary that would otherwise limit a distributee's election under
this section, a distributee may elect, at the time and in the manner
prescribed by the administrator, to have any portion of an eligible
rollover distribution paid directly to an eligible retirement plan
specified by the distributee in a direct rollover.
C.
DIRECT ROLLOVER
DISTRIBUTEE
ELIGIBLE RETIREMENT PLAN
ELIGIBLE ROLLOVER DISTRIBUTION
Definitions.
A direct rollover is a payment by the plan to the eligible
retirement plan specified by the 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, as
defined in § 414(p) of the Code, are distributees with regard
to the interest of the spouse or former spouse.
An eligible retirement plan is an individual retirement account
described in § 408(a) of the Code, an individual retirement
annuity described in § 408(6) of the Code, an annuity plan
described in § 403(a) or 403(b) of the Code, a qualified
trust described in § 401(a) of the Code, or an eligible
deferred compensation plan described in § 457(b) of the
Code which is maintained by an eligible governmental employer described
in § 457(e)(1)(A) of the Code, that accepts the distributee's
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: 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 10 years or more; any distribution
to the extent such distribution is required under §§ 401(a)(9)
and 457(d)(2) of the Code; and any distribution made as a result of
an unforeseeable emergency of the employee. For purposes of distributions
from other eligible retirement plans rolled over into this plan, the
term eligible rollover distribution shall not include the portion
of any distribution that is not includable in gross income (determined
without regard to the exclusion for net unrealized appreciation with
respect to employer securities), such as after-tax contributions.
12.
Trustee-to-Trustee Transfers to Purchase Permissive Service Credit.
All or a portion of a participant's account may be transferred directly
to the trustee of a defined benefit governmental plan (as defined
in § 414(d) of the Code) if such transfer is (A) for the
purchase of permissive service credit (as defined in § 415(n)(3)(A)
of the Code) under such plan, or (B) a repayment to which § 415
of the Code does not apply by reason of Subsection (k)(3) thereof,
within the meaning of § 457(e)(17) of the Code.
13.
Treatment of Distributions of Amounts Previously Rolled Over From
§§ 401(a) and 403(b) Plans and IRAs. For purposes of
§ 72(t) of the Code, a distribution from this plan shall
be treated as a distribution from a qualified retirement plan described
in § 4974(c)(1) of the Code to the extent that such distribution
is attributable to an amount transferred to an eligible deferred compensation
plan from a qualified retirement plan (as defined in § 4974(c)
of the Code).
14.
Employer Liability. In no event shall the employer's liability to
pay benefits to a participant under this plan exceed the value of
the amounts credited to the participant's account; neither the employer
nor the administrator shall be liable for losses arising from depreciation
or shrinkage in the value of any investments acquired under this plan.
[Ord. 785, 3/12/2013, Art. VII]
1.
Retirement Benefits and Election on Severance Event.
A.
General Rule. Except as otherwise provided in this section, the distribution of a participant's account shall commence as of a participant's automatic distribution date, and the distribution of such benefits shall be made in accordance with one of the payment options described in Subsection 2. Notwithstanding the foregoing, but subject to the following paragraphs of this Subsection 1, the participant may elect following a severance event to have the distribution of benefits commence on a fixed determinable date other than that described in the preceding sentence, but not later than April 1 of the year following the year of the participant's retirement or attainment of age 70 1/2, whichever is later. The participant's right to change his or her election with respect to commencement of the distribution of benefits shall not be restrained by this Subsection 1. Notwithstanding the foregoing, the administrator, in order to ensure the orderly administration of this provision, may establish a deadline after which such election to defer the commencement of distribution of benefits shall not be allowed.
2.
Payment Options. As provided in Subsections 1, 4 and 5, a participant may elect to have value of the participant's account distributed in accordance with one of the following payment options, provided that such option is consistent with the limitations set forth in Subsection 3:
A.
Equal monthly, quarterly, semi-annual or annual payments in an amount
chosen by the participant, continuing until his or her account is
exhausted.
B.
One lump-sum payment.
C.
Approximately equal monthly, quarterly, semi-annual or annual payments,
calculated to continue for a period certain chosen by the participant.
D.
Annual payments equal to the minimum distributions required under
§ 401(a)(9) of the Code, including the incidental death
benefit requirements of § 401(a)(9)(G), over the life expectancy
of the participant or over the life expectancies of the participant
and his or her beneficiary.
E.
Payments equal to payments made by the issuer of a retirement annuity
policy acquired by the employer.
G.
Any other payment option elected by the participant and agreed to by the employer and administrator. A participant's selection of a payment option under Subsections 2A, C, or G above may include the selection of an automatic annual cost-of-living increase. Such increase will be based on the rise in the consumer price index for all urban consumers (CPI-U) from the third quarter of the last year in which a cost-of-living increase was provided to the third quarter of the current year. Any increase will be made in periodic payment checks beginning the following January.
3.
Limitation on Options. No payment option may be selected by a participant under Subsection 2A or C unless the amount of any installment is not less than $100. No payment option may be selected by a participant under Subsection 2, 4, or 5 unless it satisfies the requirements of §§ 401(a)(9) and 457(d)(2) of the Code, including that payments commencing before the death of the participant shall satisfy the incidental death benefit requirements under § 401(a)(9)(G) of the Code.
4.
Minimum Required Distributions. Notwithstanding any provision of
the plan to the contrary, the plan shall comply with the minimum required
distribution rules set forth in §§ 457(d)(2) and 401(a)(9)
of the Code, including the incidental death benefit requirements of
§ 401(a)(9)(G) of the Code.
5.
Post-Retirement Death Benefits.
A.
Should the participant die after he or she has begun to receive benefits
under a payment option, the remaining payments, if any, under the
payment option shall continue until the administrator receives notice
of the participant's death. Upon notification of the participant's
death, benefits shall be payable to the participant's beneficiary
commencing not later than December 31 of the year following the year
of the participant's death, provided that the beneficiary may elect
to begin benefits earlier than that date.
B.
In the event that the beneficiary dies before the payment of death benefits has commenced or been completed, the remaining benefits payable under the payment option applicable to the beneficiary shall, subject to the requirements set forth in Subsection 4, be paid to an additional beneficiary designated by the beneficiary. If no additional beneficiary is named, payment shall be made to the beneficiary's estate in a lump sum.
C.
In the event that the participant's estate is the beneficiary, payment
shall be made to the estate in a lump sum.
6.
Pre-Retirement Death Benefits.
A.
Should the participant die before he or she has begun to receive the benefits provided by Subsection 1, the value of the participant's account shall be payable to the beneficiary commencing not later than December 31 of the year following the year of the participant's death, provided that the beneficiary may elect to begin benefits earlier than that date.
B.
In the event that the beneficiary dies before the payment of death
benefits has commenced or been completed, the remaining value of the
participant's Account shall be paid to the estate of the beneficiary
in a lump sum. In the event that the participant's estate is the beneficiary,
payment shall be made to the estate in a lump sum.
7.
Unforeseeable Emergencies.
A.
In the event an unforeseeable emergency occurs, a participant or
beneficiary may apply to the employer to receive that part of the
value of his or her account that is reasonably needed to satisfy the
emergency need. If such an application is approved by the employer,
the participant or beneficiary shall be paid only such amount as the
employer deems necessary to meet the emergency need, but payment shall
not be made to the extent that the financial hardship may be relieved
through cessation of deferral under the plan, insurance or other reimbursement,
or liquidation of other assets to the extent such liquidation would
not itself cause severe financial hardship.
B.
An unforeseeable emergency shall be deemed to involve only circumstances of severe financial hardship of a participant or beneficiary resulting from an illness or accident of the participant or beneficiary, the participant's or beneficiary's spouse, or the participant's or beneficiary's dependent (as defined in § 152 of the Code, and, for taxable years beginning on or after January 1, 2005, without regard to §§ 152(b)(1), (b)(2), and (d)(1)(B) of the Code); loss of the participant's or beneficiary's property due to casualty (including the need to rebuild a home following damage to a home not otherwise covered by homeowner's insurance, e.g., as a result of a natural disaster); or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the participant or the beneficiary. For example, the imminent foreclosure of or eviction from the participant's or beneficiary's primary residence may constitute an unforeseeable emergency. In addition, the need to pay for medical expenses, including non-refundable deductibles, as well as for the cost of prescription drug medication, may constitute an unforeseeable emergency. Finally, the need to pay for the funeral expenses of a spouse or a dependent (as defined in § 152 of the Code, and, for taxable years beginning on or after January 1, 2005, without regard to §§ 152(b)(1), (b)(2), and (d)(1)(B) of the Code) may also constitute an unforeseeable emergency: Except as otherwise specifically provided in this Subsection 7B, the purchase of a home and the payment of college tuition are not unforeseeable emergencies.
8.
In-Service Distribution of Rollover Contributions. Effective January
1, 2006, the employer may elect to allow participants to receive an
in-service distribution of amounts attributable to rollover contributions
to the plan. If the employer has elected to make such distributions
available, a participant that has a separate account attributable
to rollover contributions to the plan may at any time elect to receive
a distribution of all or any portion of the amount held in the rollover
account.
9.
In-service Distribution to Participants Age 70 1/2 or Older. A participant who has reached age 70 1/2 and has not yet had a severance event, may, at any time, request a distribution of all or a part of his or her account. A participant may only receive two such distributions pursuant to this Subsection 9 in any calendar year.
10.
Distribution De Minimis Accounts. Notwithstanding the foregoing provisions
of this section:
A.
Mandatory Distribution. If the value of a participant's account is
less than $1,000, the participant's account shall be paid to the participant
in a single lump sum distribution, provided that:
B.
Voluntary Distribution. If the value of the participant's account
is at least $1,000 but not more than the dollar limit under § 411(a)(11)(A)
of the Code, the participant may elect to receive his or her entire
account in a lump sum payment if:
[Ord. 785, 3/12/2013, Art. VIII]
1.
Availability of Loans to Participants.
A.
The employer may elect to make loans available to participants in
this plan. If the employer has elected to make loans available to
participants, a participant may apply for a loan from the plan subject
to the limitations and other provisions of this section. However,
no loans are available from deemed IRAs.
B.
The employer shall establish written guidelines governing the granting
of loans, provided that such guidelines are approved by the administrator
and are not inconsistent with the provisions of this section, and
that loans are made available to all participants on a reasonably
equivalent basis.
2.
Terms and Conditions of Loans to Participants. Any loan by the plan to a participant under Subsection 1 of the plan shall satisfy the following requirements:
A.
Availability. Loans shall be made available to all participants on
a reasonably equivalent basis.
B.
Interest Rate. Loans must be adequately secured and bear a reasonable
interest rate.
C.
Loan Limit. No participant loan shall exceed the present value of
the participant's account.
D.
Foreclosure. In the event of default on any installment payment,
the outstanding balance of the loan shall be a deemed distribution.
In such event, an actual distribution of a plan loan offset amount
will not occur until a distributable event occurs in the plan.
E.
Reduction of Account. Notwithstanding any other provision of this
plan, the portion of the participant's account balance used as a security
interest held by the plan by reason of a loan outstanding to the participant
shall be taken into account for purposes of determining the amount
of the account balance payable at the time of death or distribution,
but only if the reduction is used as repayment of the loan.
F.
Amount of Loan. At the time the loan is made, the principal amount
of the loan plus the outstanding balance (principal plus accrued interest)
due on any other outstanding loans to the participant from the plan
and from all other plans of the employer that are either eligible
deferred compensation plans described in § 457(b) of the
Code or qualified employer plans under § 72(p)(4) of the
Code shall not exceed the lesser of:
G.
Application for Loan. The participant must give the employer adequate
written notice, as determined by the employer, of the amount and desired
time for receiving a loan. No more than one loan may be made by the
plan to a participant's in any calendar year. No loan shall be approved
if an existing loan from the plan to the participant is in default
to any extent.
H.
Length of Loan. Any loan issued shall require the participant to repay the loan in substantially equal installments of principal and interest, at least monthly, over a period that does not exceed five years from the date of the loan; provided, however, that if the proceeds of the loan are applied by the participant to acquire any dwelling unit that is to be used within a reasonable time (determined at the time of the loan is made) after the loan is made as the principal residence of the participant, the five-year limit shall not apply. In this event, the period of repayment shall not exceed a reasonable period determined by the employer. Principal installments and interest payments otherwise due may be suspended for up to one year during an authorized leave of absence, if the promissory note so provides, but not beyond the original term permitted under this Subsection 2H, with a revised payment schedule (within such term) instituted at the end of such period of suspension.
I.
Prepayment. The participant shall be permitted to repay the loan
in whole or in part at any time prior to maturity, without penalty.
J.
Promissory Note. The loan shall be evidenced by a promissory note
executed by the participant and delivered to the employer, and shall
bear interest at a reasonable rate determined by the employer.
K.
Security. The loan shall be secured by an assignment of the participant's
right, title and interest in and to his or her account.
M.
Other Terms and Conditions. The employer shall fix such other terms
and conditions of the loan as it deems necessary to comply with legal
requirements, to maintain the qualification of the plan and trust
under § 457 of the Code, or to prevent the treatment of
the loan for tax purposes as a distribution to the participant. The
employer, in its discretion for any reason, may also fix other terms
and conditions of the loan, including, but not limited to, the provision
of grace periods following an event of default, not inconsistent with
the provisions of this section and § 72(p) of the Code,
and any applicable regulations thereunder.
3.
Participant Loan Accounts.
A.
Upon approval of a loan to a participant by the employer, an amount not in excess of the loan shall be transferred from the participant's other investment fund(s), described in § 1-556, Subsection 5, of the plan, to the participant's loan account as of the accounting date immediately preceding the agreed upon date on which the loan is to be made.
B.
The assets of a participant's loan account may be invested and reinvested only in promissory notes received by the plan from the participant as consideration for a loan permitted by Subsection 1 of the plan or in cash. Uninvested cash balances in a participant's loan account shall not bear interest. Neither the employer, the administrator, nor any other person shall be liable for any loss, or by reason of any breach, that results from the participant's exercise of such control.
C.
Repayment of principal and payment of interest shall be made by payroll deduction or, where repayment cannot be made by payroll deduction, by check, and shall be invested in one or more other investment funds, in accordance with § 1-556, Subsection 5, of the plan, as of the next accounting date after payment thereof to the trust. The amount so invested shall be deducted from the participant's loan account.
D.
The employer shall have the authority to establish other reasonable
rules, not inconsistent with the provisions of the plan, governing
the establishment and maintenance of participant loan accounts.
[Ord. 785, 3/12/2013, Art. IX]
1.
General. This section of the plan reflects § 602 of the
Economic Growth and Tax Relief Reconciliation Act of 2001 ("EGTRRA"),
as amended by the Job Creation and Worker Assistance Act of 2002.
This section is intended as good faith compliance with the requirements
of EGTRRA and is to be construed in accordance with EGTRRA and guidance
issued thereunder. This section shall supersede the provisions of
the plan to the extent that those provisions are inconsistent with
the provisions of this section.
|
Effective for plan years beginning after December 31, 2002,
the employer may elect to allow employees to make voluntary employee
contributions to a separate account or annuity established under the
plan that complies with the requirements of § 408(q) of
the Code and any regulations promulgated thereunder (a "deemed IRA").
The plan shall establish a separate account for the designated deemed
IRA contributions of each employee and any earnings properly allocable
to the contributions, and maintain separate record keeping with respect
to each such deemed IRA.
|
2.
Voluntary Employee Contributions. For purposes of this section, a
voluntary employee contribution means any contribution (other than
a mandatory contribution within the meaning of § 411(c)(2)
of the Code) that is made by the employee and which the employee has
designated, at or prior to the time of making the contribution, as
a contribution to which this section applies.
3.
Deemed IRA Trust Requirements. This section shall satisfy the trust requirement under § 408(q) of the Code and the regulations thereto. IRAs established pursuant to this section shall be held in one or more trusts or custodial accounts (the "deemed IRA trusts"), which shall be separate from the trust established under the plan to hold contributions other than deemed IRA contributions. The deemed IRA trusts shall satisfy the applicable requirements of §§ 408 and 408A of the Code, which requirements are set forth in Subsections 5 and 6, respectively, and shall be established with a trustee or custodian meeting the requirements of § 408(a)(2) of the Code ("deemed IRA trustee"). To the extent that the assets of any deemed IRAs established pursuant to this section are held in a deemed IRA trust satisfying the requirements of this Subsection 3, such deemed IRA trust, and any amendments thereto, is hereby adopted as a trust maintained under this plan with respect to the assets held therein, and the provisions of such deemed IRA trust shall control so long as any assets of any deemed IRA are held thereunder.
4.
Reporting Duties. The deemed IRA trustee shall be subject to the
reporting requirements of § 408(i) of the Code with respect
to all deemed IRAs that are established and maintained under the plan.
5.
Deemed Traditional IRA Requirements. Deemed IRAs established in the
form of traditional IRAs shall satisfy the following requirements:
A.
Exclusive Benefit. The deemed IRA account shall be established for
the exclusive benefit of an employee or his or her beneficiaries.
B.
Maximum Annual Contributions.
(1)
Except in the case of a rollover contribution (as permitted
by §§ 402(c), 402(e)(6), 403(a)(4), 403(b)(8), 403(b)(10),
408(d)(3) and 457(e)(16) of the Code), no contributions will be accepted
unless they are in cash, and the total of such contributions shall
not exceed:
|
$3,000 for any taxable year beginning in 2002 through 2004;
| |
|
$4,000 for any taxable year beginning in 2005 through 2007;
| |
|
$5,000 for any taxable year beginning in 2008 and years thereafter.
|
|
After 2008, the limit will be adjusted by the Secretary of the
Treasury for cost-of-living-increases under § 219(b)(5)(C)
of the Code. Such adjustments will be in multiples of $500.
|
(2)
In the case of an employee who is 50 or older, the annual cash
contribution limit is increased by:
|
$500 for any taxable year beginning in 2002 through 2005;
| |
|
$1,000 for any taxable year beginning in 2006 and thereafter.
|
(3)
No contributions will be accepted under a simple IRA plan established
by any employer pursuant to § 408(p) of the Code. Also,
no transfer or rollover of funds attributable to contributions made
by a particular employer under its simple IRA plan will be accepted
from a simple IRA, that is an IRA used in conjunction with a simple
IRA plan, prior to the expiration of the two-year period beginning
on the date the employee first participated in that employer's simple
IRA plan.
C.
Collectibles. If the deemed IRA trust acquires collectibles with
within the meaning of § 408(m) of the Code after December
31, 1981, deemed IRA trust assets will be treated as a distribution
in an amount equal to the cost of such collectibles.
D.
Life Insurance Contracts. No part of the deemed IRA trust funds will
be invested in life insurance contracts.
E.
Minimum Required Distributions.
(1)
Notwithstanding any provision of this deemed IRA to the contrary, the distribution of the employee's interest in the account shall be made in accordance with the requirements of § 408(a)(6) of the Code and the Income Tax Regulations thereunder, the provisions of which are herein incorporated by reference. If distributions are made from an annuity contract purchased from an insurance company, distributions thereunder must satisfy the requirements of Q&A-4 of § 1.401(a)(9)-6T of the Income Tax Regulations (or § 1.401(a)(9)-6 of the Income Tax Regulations, as applicable), rather than Subsections 5E(2), (3) and (4) below and Subsection 5F. The minimum required distributions calculated for this IRA may be withdrawn from another IRA of the employee in accordance with Q&A-9 of § 1.408-8 of the Income Tax Regulations.
(2)
The entire value of the account of the employee for whose benefit
the account is maintained will commence to be distributed no later
than the first day of April following the calendar year in which such
employee attains age 70 1/2 (the "required beginning date") over
the life of such employee or the lives of such employee and his or
her beneficiary.
(3)
The amount to be distributed each year, beginning with the calendar
year in which the employee attains age 70 1/2 and continuing
through the year of death shall not be less than the quotient obtained
by dividing the value of the IRA (as determined under Subsection 5F(3)
as of the end of the preceding year by the distribution period in
the Uniform Lifetime Table in Q&A-2 of § 401(a)(9)-9
of the Income Tax Regulations, using the employee's age of his or
her birthday in the year. However, if the employee's sole beneficiary
is his or her surviving spouse and such spouse is more than 10 years
younger than the employee, then the distribution period is determined
under the Joint and Last Survivor Table in Q&A-3 of § 1.401(a)(9)-9
of the Income Tax Regulations, using the ages as of the employee's
and spouse's birthdays in the year.
(4)
The required minimum distribution for the year the employee
attains age 70 1/2 can be made as late as April 1 of the following
year. The required minimum distribution for any other year must be
made by the end of such year.
F.
Distribution Upon Death.
(1)
Death on or After Required Beginning Date. If the employee dies
on or after the required beginning date, the remaining portion of
his or her interest will be distributed at least as rapidly as follows:
(a)
If the beneficiary is someone other than the employee's surviving
spouse, the remaining interest will be distributed, over the remaining
life expectancy of the beneficiary, with such life expectancy determined
using the beneficiary's age as of his or her birthday in the year
following the year of the employee's death, or over the period described
in Subsection 5E(1)(c) below if longer.
(b)
If the employee's sole beneficiary is the employee's surviving
spouse, the remaining interest will be distributed over such spouse's
life or over the period described in Subsection 5E(1)(c) below if
longer. Any interest remaining after such spouse's death will be distributed
over such spouse's remaining life expectancy determined using the
spouse's age as of his or her birthday in the year of the spouse's
death, or, if the distributions are being made over the period described
in Subsection 5E(1)(c) below, over such period.
(c)
If there is no beneficiary, or if applicable by operation of
Subsection 5E(1)(a) or (b) above, the remaining interest will be distributed
over the employee's remaining life expectancy determined in the year
of the employee's death.
(d)
The amount to be distributed each year under Subsection 5E(1)(a),
(b), or (c), beginning with the calendar year following the calendar
year of the employee's death, is the quotient obtained by dividing
the value of the IRA as of the end of the preceding year by the remaining
life expectancy specified in such paragraph. Life expectancy is determined
using the Single Life Table in Q&A-1 of § 1.401(a)(9)-9
of the Income Tax Regulations. If distributions are being made to
a surviving spouse as the sole beneficiary, such spouse's remaining
life expectancy for a year is the number in the Single Life Table
corresponding to such spouse's age in the year. In all other cases,
remaining life expectancy for a year is the number in the Single Life
Table corresponding to the beneficiary's or employee's age in the
year specified in Subsection 5E(1)(a), (b), or (c) and reduced by
one for each subsequent year.
(2)
Death Before Required Beginning Date. If the employee dies before
the required beginning date, his or her entire interest will be distributed
at least as rapidly as follows:
(a)
If the beneficiary is someone other than the employee's surviving
spouse, the entire interest will be distributed, starting by the end
of the calendar year following the calendar year of the employee's
death, over the remaining life expectancy of the beneficiary, with
such life expectancy determined using the age of the beneficiary as
of his or her birthday in the year following the year of the employee's
death, or, if elected, in accordance with Subsection 5E(2)(c) below.
(b)
If the employee's sole beneficiary is the employee's surviving
spouse, the entire interest will be distributed, starting by the end
of the calendar year following the calendar year of the employee's
death (or by the end of the calendar year in which the employee would
have attained age 70 1/2, if later), over such spouse's life,
or, if elected, in accordance with Subsection 5E(2)(c) below. If the
surviving spouse dies before distributions are required to begin,
the remaining interest will be distributed, starting by the end of
the calendar year following the calendar year of the spouse's death,
over the spouse's beneficiary's remaining life expectancy determined
using such beneficiary's age as of his or her birthday in the year
following the death of the spouse, or, if elected, will be distributed
in accordance with Subsection 5E(2)(c) below. If the surviving spouse
dies after distributions are required to begin, any remaining interest
will be distributed over the spouse's remaining life expectancy determined
using the spouse's age as of his or her birthday in the year of the
spouse's death.
(c)
If there is no beneficiary, or if applicable by operation of
Subsection 5E(2)(a) or (2)(b) above, the entire interest will be distributed
by the end of the calendar year containing the fifth anniversary of
the beneficiary's death (or of the spouse's death in the case of the
surviving spouse's death before distributions are required to begin
under Subsection 5E(2)(b) above).
(d)
The amount to be distributed each year under Subsection 5E(2)(a)
or (b) is the quotient to be obtained by dividing the value of the
IRA as of the end of the preceding year by the remaining life expectancy
specified in such paragraph. Life expectancy is determined using the
Single Life Table in Q&A-1 of § 1.401(a)(9)-9 of the
Income Tax Regulations. If distributions are being made to a surviving
spouse as the sole beneficiary, such spouse's remaining life expectancy
for a year is the number in the Single Life Table corresponding to
the beneficiary's age in the year specified in Subsection 5E(2)(a)
or (b) and reduced by one for each subsequent year.
(e)
The "value" of the IRA includes the amount of any outstanding
rollover, transfer and recharacterization under Q&As-7 and -8
of § 1.408-8 of the Income Tax Regulations.
(f)
If the sole beneficiary is the employee's surviving spouse,
the spouse may elect to treat the IRA as his or her own IRA. This
election will be deemed to have been made if such surviving spouse
makes a contribution to the IRA or fails to take required distributions
as a beneficiary.
G.
Nonforfeitable. The interest of an employee in the balance in his
or her deemed IRA account is nonforfeitable at all times.
H.
Reporting. The deemed IRA trustee of a deemed traditional IRA shall
furnish annual calendar-year reports concerning the status of the
deemed IRA account and such information concerning required minimum
distributions as is prescribed by the Commissioner of Internal Revenue.
I.
Substitution of Deemed IRA Trustee. If the deemed IRA trustee is
a nonbank trustee or custodian, the non-bank trustee or custodian
shall substitute another trustee or custodian if the non-bank trustee
or custodian receives notice from the Commissioner of Internal Revenue
that such substitution is required because it has failed to comply
with the requirements of § 1.408-2(e) of the Income Tax
Regulations and § 1.408-2T of the Income Tax Regulations.
6.
Deemed Roth IRA Requirements. Deemed IRAs established in the form
of Roth IRAs shall satisfy the following requirements:
A.
Exclusive Benefit. The deemed Roth IRA shall be established for the
exclusive benefit of an employee or his or her beneficiaries.
B.
Maximum Annual Contributions.
(1)
Maximum Permissible Amount. Except in the case of a qualified rollover contribution or recharacterization (as defined in Subsection 6B(6) below), no contribution will be accepted unless it is in cash and the total of such contributions to all the employee's Roth IRAs for a taxable year does not exceed the applicable amount (as defined in Subsection 6B(2) below), or the employee's compensation (as defined in Subsection 6B(8) below) if less, for that taxable year. The contribution described in the previous sentence that may not exceed the lesser of the applicable amount or the employee's compensation is referred to as a "regular contribution." A "qualified rollover contribution" is a rollover contribution that meets the requirements of § 408(d)(3) of the Code, except the one-rollover-per-year rule of § 408(d)(3)(B) does not apply if the rollover contribution is from another IRA other than a Roth IRA (a "nonRoth IRA"). Contributions may be limited under Subsections 6B(3) through (5) below.
(2)
(a)
If the employee is under age 50, the applicable amount is:
|
$3,000 for any taxable year beginning in 2002 through 2004;
| |
|
$4,000 for any taxable year beginning in 2005 through 2007;
and,
| |
|
$5,000 for any taxable year beginning in 2008 and years thereafter.
|
(b)
If the employee is 50 or older, the applicable amount is:
|
$3,500 for any taxable year beginning in 2002 through 2004;
| |
|
$4,500 for any taxable year beginning in 2005;
| |
|
$5,000 for any taxable year beginning in 2006 through 2007;
and,
| |
|
$6,000 for any taxable year beginning in 2008 and years thereafter.
|
(3)
If Subsection 6B(3)(a) and/or (b) below apply, the maximum regular contribution that can be made to all the employee's Roth IRAs for the taxable year is the smaller amount determined under Subsection 6B(3)(a) or (b).
(a)
The maximum regular contribution is phased out ratably between certain levels of modified adjusted gross income ("modified ACT," defined in Subsection 6B(7) below) in accordance with the following table:
|
Modified AGI
| |||
|---|---|---|---|
|
Filing Status
|
Full Contribution
|
Phase-out Range
|
No Contribution
|
|
Single or Head of Household
|
$95,000 or less
|
Between $95,000 and $110,000
|
$110,000 or more
|
|
Joint Return or Qualifying Widower
|
$150,000 or less
|
Between $150,000 and $160,000
|
$160,000 or more
|
|
Married Separate Return
|
$0
|
Between $0 and $10,000
|
$10,000 or more
|
|
If the employee's modified AGI for a taxable year is in the
phase-out range, the maximum regular contribution determined under
this table for that taxable year is rounded up to the next multiple
of $10 and not reduced below $200.
|
(b)
If the employee makes regular contributions to both Roth and
nonRoth IRAs for a taxable year, the maximum regular contribution
that can be made to all the employee's Roth IRAs for that taxable
year is reduced by the regular contributions made to the employee's
nonRoth IRAs for the taxable year.
(4)
Qualified Rollover Contribution Limit. A rollover from a nonRoth
IRA cannot be made to this IRA if, for the year the amount is distributed
from the nonRoth IRA,(a) the employee is married and files a separate
return, (b) the employee is not married and has modified AGI in excess
of $100,000 or (c) the employee is married and together the employee
and the employee's spouse have modified AGI in excess of $100,000.
For purposes of the preceding sentence, a husband and wife are not
treated as married for a taxable year if they have lived apart at
all times during that taxable year and file separate returns for the
taxable year.
(5)
Simple IRA Limits. No contributions will be accepted under a
simple IRA plan established by any employer pursuant to § 408(p)
of the Code. Also, no transfer or rollover of funds attributable to
contributions made by a particular employer under its simple IRA plan
will be accepted from a simple IRA, that is, an IRA used in conjunction
with a simple IRA plan, prior to the expiration of the two-year period
beginning on the date the employee first participated in that employer's
simple IRA plan.
(6)
Recharacterization. A regular contribution to a nonRoth IRA may be recharacterized pursuant to the rules in § 1.408A-5 of the Income Tax Regulations as a regular contribution to this IRA, subject to the limits in Subsection 6B(3) above.
(8)
Compensation. For purposes of Subsection 6B(1) above, compensation is defined as wages, salaries, professional fees, or other amounts derived from or received for personal services actually rendered (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 includes earned income, as defined in § 401(c)(2) of the Code (reduced by the deduction the self-employed individual takes for contributions made to a self-employed retirement plan). For purposes of this definition, § 401(c)(2) of the Code shall be applied as if the term trade or business for purposes of § 1402 of the Code included service described in Subsection (c)(6). Compensation does not include amounts derived from or received as earnings or profits from property (including, but not limited to, interest and dividends) or amounts not includable in gross income. Compensation also does not include any amount received as a pension or annuity or as deferred compensation. The term "compensation" shall include any amount includable in the employee's gross income under § 71 of the Code with respect to a divorce or separation instrument described in Subparagraph (A) of § 71(b)(2) of the Code In the case of a married employee filing a joint return, the greater compensation of his or her spouse is treated as his or her own compensation but only to the extent that such spouse's compensation is not being used for purposes of the spouse making a contribution to a Roth IRA or a deductible contribution to a nonRoth IRA.
C.
Collectibles. If the deemed IRA Trust acquires collectibles within
the meaning of § 408(m) of the Code after December 31, 1981,
deemed IRA trust assets will be treated as a distribution in an amount
equal to the cost of such collectibles.
D.
Lift Insurance Contracts. No part of the deemed IRA trust funds will
be invested in life insurance contracts.
E.
Distributions Before Death. No amount is required to be distributed
prior to the death of the employee for whose benefit the account was
originally established.
F.
Minimum Required Distributions.
(1)
Notwithstanding any provision of this IRA to the contrary, the distribution of the employee's interest in the account shall be made in accordance with the requirements of § 408(a)(6) of the Code, as modified by § 408A(c)(5), and the regulations thereunder, the provisions of which are herein incorporated by reference. If distributions are made from an annuity contract purchased from an insurance company, distributions thereunder must satisfy the requirements of § 1.401(a)(9)-6T of the Temporary Income Tax Regulations (taking into account § 408A(c)(5) of the Code) (or § 1.401(a)(9)-6 of the Income Tax Regulations, as applicable), rather than the distribution rules in Subsections 6F(2), (3) and (4) below.
(2)
Upon the death of the employee, his or her entire interest will
be distributed at least as rapidly as follows:
(a)
If the beneficiary is someone other than the employee's surviving spouse, the entire interest will be distributed, starting by the end of the calendar year following the year of the employee's death, over the remaining life expectancy of the beneficiary, with such life expectancy determined using the age of the beneficiary as of his or her birthday in the year following the year of the employee's death, or, if elected, in accordance with Subsection 6F(2)(c) below.
(b)
If the employee's sole beneficiary is the employee's surviving spouse, the entire interest will be distributed starting by the end of the calendar year following the calendar year of the employee's death (or by the end of the calendar year in which the employee would have attained age 70 1/2, if later), over such spouse's life, or, if elected, in accordance with Subsection 6F(2)(c) below. If the surviving spouse dies before distributions are required to begin, the remaining interest will be distributed, starting by the end of the calendar year following the calendar year of the spouse's death, over the spouse's beneficiary's remaining life expectancy determined using such beneficiary's age as of his or her birthday in the year following the death of the spouse, or, if elected, will be distributed in accordance with Subsection 6F(2)(c) below. If the surviving spouse dies after distributions are required to begin, any remaining interest will be distributed over the spouse's remaining life expectancy determined using the spouse's age as of his or her birthday in the year of the spouse's death.
(c)
If there is no beneficiary, or if applicable by operation of Subsection 6F(2)(a) or (2)(b) above, the entire interest will be distributed the end of the calendar year containing the fifth anniversary of the employee's death (or of the spouse's death in the case of the surviving spouse's death before distributions are required to begin under Subsection 6F(2)(b) above).
(d)
The amount to be distributed each year under Subsection 6F(2)(a) or (b) is the quotient obtained by dividing the value of the IRA as of the end of the preceding year by the remaining life expectancy specified in such paragraph. Life expectancy is determined using the Single Life Table in Q&A-1 of § 1.401(a)(9)-9 of the Income Tax Regulations. If distributions are being made to a surviving spouse as the sole beneficiary, such spouse's remaining life expectancy for a year is the number in the Single Life Table corresponding to such spouse's age in the year. In all other cases, remaining life expectancy for a year is the number in the Single Life Table corresponding to the beneficiary's age in the year specified in Subsection 6F(2)(a) or (b) and reduced by one for each subsequent year.
(3)
The "value" of the IRA includes the amount of any outstanding
rollover, transfer and recharacterization under Q&As-7 and -8
of § 1.408-8 of the Income Tax Regulations.
(4)
If the sole beneficiary is the employee's surviving spouse,
the spouse may elect to treat the IRA as his or her own IRA. This
election will be deemed to have been made if such surviving spouse
makes a contribution to the IRA or fails to take required distributions
as a beneficiary.
G.
Nonforfeitable. The interest of an employee in the balance in his
or her account is nonforfeitable at all times.
H.
Reporting. The deemed IRA trustee of a deemed Roth IRA shall furnish
annual calendar-year reports concerning the status of the deemed IRA
account and such information concerning required minimum distributions
as is prescribed by the Commissioner of Internal Revenue.
I.
Substitution of Deemed IRA Trustee. If the deemed IRA trustee is
a nonbank trustee or custodian, the non-bank trustee or custodian
shall substitute another trustee or custodian if the non-bank trustee
or custodian receives notice from the Commissioner of Internal Revenue
that such substitution is required because it has failed to comply
with the requirements of § 1.408-2(e) of the Income Tax
Regulations and § 1.408-2T of the Income Tax Regulations.
[Ord. 785, 3/12/2013, Art. X]
1.
General. Except as provided in § 1-558 and Subsection 2, no participant or beneficiary shall have any right to commute, sell, assign, pledge, transfer or otherwise convey or encumber the right to receive any payments hereunder, which payments and rights are expressly declared to be non-assignable and non-transferable.
2.
Domestic Relations Orders.
A.
Allowance of Transfers. To the extent required under a final judgment, decree, or order (including approval of a property settlement agreement) that (1) relates to the provision of child support, alimony payments, or marital property rights and (2) is made pursuant to a state domestic relations law, and (3) is permitted under §§ 414(p)(11) and (12) of the Code, any portion of a participant's account may be paid or set aside for payment to a spouse, former spouse, child, or other dependent of the participant (an "alternate payee"). Where necessary to carry out the terms of such an order, a separate account shall be established with respect to the alternate payee who shall be entitled to make investment selections with respect thereto in the same manner as the participant. Any amount so set aside for an alternate payee shall be paid in accordance with the form and timing of payment specified in the order. Nothing in this section shall be construed to authorize any amount to be distributed under the plan at a time or in a form that is not permitted under § 457(b) of the Code and is explicitly permitted under the uniform procedures described in Subsection 2D below. Notwithstanding the foregoing sentence, if a judgment, decree or order (including approval of a property settlement agreement) that relates to the provision of child support, alimony payments, or the marital property rights of a spouse or former spouse, child, or other dependent of a participant is made pursuant to the domestic relations law of any state, then the amount of the participant's account shall be paid in the manner and to the person or persons so directed in the domestic relations order. Such payment shall be made without regard to whether the participant is eligible for a distribution of benefits under the plan. The administrator shall establish reasonable procedures for determining the status of any such decree or order and for effectuating distribution pursuant to the domestic relations order. Any payment made to a person pursuant to this section shall be reduced by any required income tax withholding.
B.
Release From Liability to Participant. The employer's liability to pay benefits to a participant shall be reduced to the extent that amounts have been paid or set aside for payment to an alternate payee to Subsection 2A of this section and the participant and his or her beneficiaries shall be deemed to have released the employer and the plan administrator from any claim with respect to such amounts.
C.
Participation in Legal Proceedings. The employer and administrator shall not be obligated to defend against or set aside any judgment, decree, or order described in Subsection 2A or any legal order relating to the garnishment of a participant's benefits, unless the full expense of such legal action is borne by the participant. In the event that the participant's action (or inaction) nonetheless causes the employer or administrator to incur such expense, the amount of the expense may be charged against the participant's account and thereby reduce the employer's obligation to pay benefits to the participant. In the course of any proceeding relating to divorce, separation, or child support, the employer and administrator shall be authorized to disclose information relating to the participant's account to the alternate payee (including the legal representatives of the alternate payee), or to a court.
D.
Determination of Validity of Domestic Relations Orders. The administrator
shall establish uniform procedures for determining the validity of
any domestic relations order. The administrator's determinations under
such procedures shall be conclusive and binding on all parties and
shall be afforded the maximum amount of deference permitted by law.
3.
IRS Levy. Notwithstanding Subsection 1, the administrator may pay from a participant's or beneficiary's account balance the amount that the administrator finds is lawfully demanded under a levy issued by the Internal Revenue Service with respect to that participant or beneficiary or is sought to be collected by the United States Government under a judgment resulting from an unpaid tax assessment against the participant or beneficiary.
4.
Mistaken Contribution. To the extent permitted by applicable law,
if any contribution (or any portion of a contribution) is made to
the plan by a good faith mistake of fact, then after the payment of
the contribution, and upon receipt in good order of a proper request
approved by the administrator, the amount of the mistaken contribution
(adjusted for any income or loss in value, if any, allocable thereto)
shall be returned directly to the participant or, to the extent required
or permitted by the administrator, to the employer.
5.
Payments to Minors and Incompetents. If a participant or beneficiary
entitled to receive any benefits hereunder is a minor or is adjudged
to be legally incapable of giving valid receipt and discharge for
such benefits, or is deemed so by the administrator, benefits will
be paid to such persons as the administrator may designate for the
benefit of such participant or beneficiary. Such payments shall be
considered a payment to such participant or beneficiary and shall,
to the extent made, be deemed a complete discharge of any liability
for such payments under the plan.
6.
Procedure When Distributee Cannot Be Located. The administrator shall
make all reasonable attempts to determine the identity and address
of a participant or a participant's beneficiary entitled to benefits
under the plan. For this purpose, a reasonable attempt means (A) the
mailing by certified mail of a notice to the last known address shown
on the employer or Administrator's records, (B) notification sent
to the Social Security Administration or the Pension Benefit Guarantee
Corporation (under their program to identify payees under retirement
plans), and (C) the payee has not responded within six months. If
the administrator is unable to locate such a person entitled to benefits
hereunder, or if there has been no claim made for such benefits, the
trust shall continue to hold the benefits due such person.
[Ord. 785, 3/12/2013, Art. XI]
This plan serves in addition to any other retirement, pension,
or benefit plan or system presently in existence or hereinafter established
for the benefit of the employer's employees, and participation hereunder
shall not affect benefits receivable under any such plan or system.
Nothing contained in this plan shall be deemed to constitute an employment
contract or agreement between any participant and the employer or
to give any participant the right to be retained in the employ of
the employer. Nor shall anything herein be construed to modify the
terms of any employment contract or agreement between a participant
and the employer.
[Ord. 785, 3/12/2013, Art. XII]
1.
The employer may at any time amend this plan provided that it transmits
such amendment in writing to the administrator at least 30 days prior
to the effective date of the amendment. The consent of the administrator
shall not be required in order for such amendment to become effective,
but the administrator shall be under no obligation to continue acting
as administrator hereunder if it disapproves of such amendment.
2.
The administrator may at any time propose an amendment to the plan
by an instrument in writing transmitted to the employer at least 30
days before the effective date of the amendment. Such amendment shall
become effective unless, within such thirty-day period, the employer
notifies the administrator in writing that it disapproves such amendment,
in which case such amendment shall not become effective. In the event
of such disapproval, the administrator shall be under no obligation
to continue acting as administrator hereunder.
3.
The Employer may at Any Time Terminate This Plan. In the event of
termination, assets of the plan shall be distributed to participants
and beneficiaries as soon as administratively practicable following
termination of the plan. Alternatively, assets of the plan may be
transferred to an eligible deferred compensation plan maintained by
another eligible governmental employer within the same state if (A)
all assets held by the plan (other than deemed IRAs) are transferred;
(B) the receiving plan provides for the receipt of transfers; (C)
the participants and beneficiaries whose deferred amounts are being
transferred will have an amount immediately after the transfer at
least equal to the deferred amount immediately before the transfer;
and (D) the participants or beneficiaries whose deferred amounts are
being transferred is not eligible for additional annual deferrals
in the receiving plan unless the participants or beneficiaries are
performing services for the employer maintaining the receiving plan.
4.
Except as may be required to maintain the status of the plan as an
eligible deferred compensation plan under § 457(b) of the
Code or to comply with other applicable laws, no amendment or termination
of the plan shall divest any participant of any rights with respect
to compensation deferred before the date of the amendment or termination.
[Ord. 785, 3/12/2013, Art. XIII]
1.
This plan and trust shall be construed under the laws of the state
where the employer is located and is established with the intent that
it meet the requirements of an "eligible deferred compensation plan"
under § 457(b) of the Code, as amended. The provisions of
this plan and trust shall be interpreted wherever possible in conformity
with the requirements of that section of the Code.
2.
In addition, notwithstanding any provision of the plan to the contrary,
the plan shall be administered in compliance with the requirements
of § 414(u) of the Code.
[Ord. 785, 3/12/2013, Art. XIV]
The masculine pronoun, whenever used herein, shall include the
feminine pronoun, and the singular shall include the plural, except
where the context requires otherwise.
