HomeMy WebLinkAboutResolutions - 2017.12.07 - 23204MISCELLANEOUS RESOLUTION #17334 December 7, 2017
BY: Commissioner Robert Hoffman, Chairperson, Human Resources Committee
IN RE: HUMAN RESOURCES DEPARTMENT — DEFERRED COMPENSATION 457b PLAN
AMENDMENT AND RESTATEMENT
To the Oakland County Board of Commissioners
Chairperson, Ladies and Gentlemen:
WHEREAS under the authority of Public Law 95-600 Revenue Act of 1978, Oakland County
established a Deferred Compensation Plan for eligible employees effective May 4, 1978 per
MR#8898; and
WHEREAS the Deferred Compensation Plan is governed by the Oakland County Retirement and
Deferred Compensation Board ("Retirement Board"); and
WHEREAS the Retirement Board has amended and restated the Deferred Compensation Plan to
update language in Section 2.16 and 4.4 to include the County match benefit enacted with MR#15236;
and
WHEREAS the addition of Section 2.17 Normal Retirement Age is to allow plan participants more
flexibility in the years they may elect to enact the special catch-up provision of the Deferred
Compensation plan, as approved by the Internal Revenue Service; and
WHEREAS the amendments herein do not change benefit levels provided by the County, or result in
any additional costs to the County.
NOW THEREFORE BE IT RESOLVED that the Oakland County Board of Commissioners adopts the
amended and restated Deferred Compensation Plan as set forth in the attached document.
Chairperson, on behalf of the Human Resources Committee, I move the adoption of the foregoing
resolution.
Commissioner Robeft Hof)tipfi, District # 2
Chairperson, Human Resources Committee
HUMAN RESOURCES COMMITTEE VOTE:
Motion carried unanimously on a roll call vote with Bowman absent.
OAKLAND COUNTY
457(b) DEFERRED COMPENSATION PLAN
Restated Resolution
NOVEMBER 2017
457(b) DEFERRED COMPENSATION PLAN
Oakland County (the "Employer") hereby amends and restates the Oakland County
457(b) Deferred Compensation Plan (the "Plan") effective as of this 29 th day of November,
2017.
ARTICLE I - INTRODUCTION
It is intended that this Plan and the related Trust Agreement be interpreted and construed
as constituting parts of a plan designed to constitute a governmental unit eligible deferred
compensation plan within the meaning of section 457(b) of the Internal Revenue Code of 1986,
as amended, the regulations issued thereunder and other applicable law.
The purpose of the Plan is to attract and hold certain Employees and other parties related
to the Employer and permit eligible Employees to enter into agreements with the Employer
which will provide for payments upon retirement, termination or death.
ARTICLE II— DEFINITIONS
The following terms when used herein shall have the following meanings:
2.1 Account shall mean the bookkeeping account maintained with respect to each
Participant which reflects the value of the deferred compensation credited to the
Participant, including the Participant's Deferred Salary, the earnings or loss of the Trust
(net of Trust expenses) allocable to the Participant, any transfers for the Participant's
benefit, and any distributions made to the Participant, Participant's Beneficiary, or
Alternate Payee. If a Participant has more than one (1) Beneficiary at the time of the
Participant's death, then a separate Account shall be maintained for each Beneficiary.
A Participant's Account shall include any accounts established under Article 9.
2.2 Alternate Payee means a person who is or was the spouse of the Participant or is the
child of the Participant to the extent that such person has rights under a court order that
the Administrator has determined to be a Qualified Domestic Relations Order as
described in Treas. Reg. Section 1.457-10(c), or any successor regulation or guidance.
2.3 Annuity Contract means one or more group fixed, variable or combination fixed and
variable annuity contracts issued by an insurance company qualified to do business in
the Employer's state which provides for periodic payments at regular intervals, whether
for a period certain or during one or more lives and which are non-transferable, The
purposes of this Plan, an Annuity Contract shall also include any life insurance policies,
whole life or otherwise, issued by an insurance company duly licensed in the
Employer's state.
1.
2.4 Beneficiary shall mean the person or persons designated by the Participant to receive
distributions from the Participant's Account after the Participant's death, In the case of
multiple beneficiaries, unless otherwise provided in the Beneficiary designation form,
each designated Beneficiary shall be entitled to an equal share of the benefit payable
after the Participant's death. If the Participant fails to designate a Beneficiary, then the
estate of the Participant shall be the Beneficiary.
2.5 Board shall mean the Retirement and Deferred Compensation Board for Oakland County,
which shall include:
(a) The chairperson of the Board of County Board Members or designee by virtue of
that office;
(b) The County Executive or designee by virtue of that office;
(c) The chairperson of the County Finance Committee or designee by virtue of that
office;
(d) The County Treasurer or designee by virtue of that office;
(e) A citizen, who is an elector in Oakland County who is not eligible for
Membership in the Retirement System or benefits under the Retirement System and who
does not hold any other office or appointment with the County, to be selected by the
Oakland County Retirement and Deferred Compensation Board;
(f) Three Members of the Retirement System who are not elected officials, to be
elected by employees. The three Board Members shall be from different County
departments;
(g) A retired Member of the Retirement System to be elected by retirees of the
system;
(h) The Board shall establish rules and regulations for elections required by
subparagraphs (f) and (g).
2.6 Code means the Internal Revenue Code of 1986, as amended. Reference to a specific
Code section shall include such section, any valid Treasury Regulation promulgated
thereunder, and any comparable provision of any future legislation amending
supplementing or superseding such section.
2.7 Compensation means all compensation for services to the Employer, including salary,
wages, fees, commissions, bonuses, and overtime pay, that is includible in the
Employee's gross income for the calendar year.
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2.8 Contributions mean Employee Contributions and (if any) Employer Contributions
deferred under the Plan according to the provisions of the Plan. Contributions shall not
be reduced because of the Participant's attainment of any age. Contributions shall be
made according to the payroll methods of, and at such times as may be determined by
the Employer.
2.9 County shall mean Oakland County, Michigan.
2.10 Deferred Compensation means the amount of Compensation that the Participant and the
Employer agree to defer according to the provisions of the Plan. The amount or value of
the Participant's Deferred Compensation is the amount or value of the Participant's
Account (including any rights purchased under the Account). Deferred Compensation
may also refer to the right under this Plan of the Participant or Beneficiary to receive a
Distribution of all or any portion of the Account.
2.11 Effective Date means the date set forth in this Plan. The original effective date of the Plan
was April 5, 1979.
2.12 Employee shall mean a natural person characterized by the Plan Administrator, in its sole
and absolute discretion, as a "full-time eligible Employee" or "part-time eligible
Employee" as such is defined in the County's Merit System Rules. Employee shall
include natural persons who are covered by a collective bargaining agreement. Employee
shall not include part-time non-eligible or leased employees (as defined by Code Section
414(n)), or individuals determined by the County considering Internal Revenue Service
and Department of Labor guidelines for defining independent contractors, and as may be
amended and/or modified from time to time) even if such individuals are subsequently
deemed to be the County's common law employees.
2.13 Entry Date shall mean for each individual the date that such individual is characterized by
the Plan Administrator as an Employee.
2.14 Includible Compensation means an Employee's actual wages in box 1 of Form W-2 for a
year for services to the Employer, but subject to a maximum of $200,000 (or such higher
maximum as may apply under section 401(a)(17) of the Code), as adjusted thereunder
from time to time, and increased (up to the dollar maximum) by any compensation
reduction election under section 125, 132(f), 401(k), 403(b), or 457(b) of the Code
(including an election to defer Compensation under Article N).
2.15 Investment Sponsors means the insurance company providing Annuity Contracts under the
Plan.
2.16 Matching Contribution shall mean a voluntary contribution made by the County on behalf
of a Participant, as a result of the Participant's contribution into his or her account
maintained under this Plan.
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2.17 Normal Retirement Age shall mean any age the Participant declares his/her Normal
Retirement age in writing with the Retirement Unit; however, the Participant must at least
reach age 55 with 25 years of service or age 60 with 8 years of service. Some represented
Employees' bargaining agreements may include a different definition of Normal
Retirement Age. Under no circumstances shall a Participant's Normal Retirement Age
under this 457(b) Plan be later than the age of 70 1/2, and/or as modified by IRS
regulations. Participants may only make one election to declare their Normal Retirement
Age with the Retirement Unit.
2.18 Participant shall mean an Employee who is currently deferring Compensation, or who has
previously deferred Compensation to the Plan by salary reduction and who has not
received a distribution of his or her entire benefit under the Plan.
2.19 Plan shall mean this 457(b) Deferred Compensation Plan for Oakland County, as such may
be amended from time to time.
2.20 Plan Administrator shall be the individual holding the position of Retirement
Administrator, or in his or her absence, the Manager of Human Resources, or as
appropriately appointed by the County in accordance with the County's policies and
protocols.
2.21 Plan Year means the 12-month period commencing January 1 and ending December 31,
2.22 Qualified Domestic Relations Order or "QDRO" means any judgment, decree or order as
defined in 1RC Section 414(p).
2.23 Severance from Employment means a voluntary or involuntary termination of employment
or expiration of all contractual relationships with the County for any reason including
death or disability, or for no reason. For purposes of the foregoing sentence, an approved
leave of absence by an Employee shall not constitute a Severance from Employment.
124 Trust shall mean all of the assets of the Plan held in trust pursuant to a written agreement
made by and between the County and the Trustee under which the Trust is maintained.
2.25 Trustee shall mean the trustee duly appointed and currently serving under the Trust's
written agreement.
2.26 USERRA means the Uniformed Services Employment and Reemployment Rights Act of
1994 (Public Law No. 103-353).
2.27 Valuation Date shall mean the date provided for valuing Plan Accounts as specified by
the Administrator.
ARTICLE III — ELIGIBILITY AND PARTICIPATION
3.1 Eligibility. All Eligible Employees can participate in the Plan by completing, executing,
and delivering all of the instruments and forms required by the Administrator. Each
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present Participant shall continue to be a Participant in the Plan. Any other Employee
who is classified as an eligible Employee as of the Effective Date shall be eligible to
participate in the Plan on the Effective Date. Any Employee who is not eligible to
participate in the Plan as of the Effective Date shall be eligible to- participate in the Plan
upon classification as an eligible Employee.
3.2 Procedure for and Effect of Admission. Any eligible Employee who elects to become a
Participant shall complete a Deferred Compensation Agreement by written or other means
as prescribed by the Plan Administrator. The Plan Administrator reserves the right to
reject any Deferred Compensation Agreement which does not conform with uniform,
non-discriminatory procedures it shall prescribe and advise the Eligible Employee of the
appropriate method of correction. By becoming a Participant, such Eligible Employee
shall for all purposes be deemed to have assented to the terms and provisions of this Plan
and to all amendments thereto.
The Administrator may establish a minimum deferral amount, and may change such
minimums from time to time. The participation election shall also include designation of
investment funds and a designation of Beneficiary. Any such election shall remain in
effect until a new election is filed. When entering into or amending his Participation
Agreement, the Participant must agree to defer not more than the maximum amount
provided by Article IV.
3.3 Time for Contributions to Begin. Contributions will be deferred for any calendar month
only if a Participation Agreement providing for the deferral has been entered into before
the beginning of the month. However, for a new employee, Compensation may be
deferred for the calendar month during which the Participant first becomes an employee if
a Participation Agreement providing for the deferral is entered into on or before the first
day on which he performs services for the Employer.
3.4 Contributions Made Promptly. Deferred Salary by a Participant under the Plan shall be
transferred to the Trust within a period that is not longer than is reasonable for the proper
administration of the Participant's Account.
3.5 Modification of Deferral Agreement. Subject to the other provisions of the Plan and the
Plan Administrator's discretion, a Participant may revise his or her Deferral Agreement
at any time in the month prior to the effective date of the deferral agreement.
3.6 Cancellation of Deferral Agreement. In accordance with procedures established by the
Plan Administrator, a Participant may cancel his or her Deferral Agreement at any time.
The cancellation shall be effective as of the next payroll period following the
Participant's election.
3.7 Leave of Absence. Unless a Deferred Salary election is otherwise revised, if a
Participant is absent from work by leave of absence, his or her Deferred Salary
contributions shall continue to the extent that his or her Compensation continues.
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3.8 Disability. A disabled Participant may make Employee Contributions during any portion
of the period of his disability to the extent that he has actual Compensation (not imputed
compensation and not disability benefits) from which to make Employee Contributions
and has not had a Severance from Employment.
3.9 Deferral of Sick, Vacation, and Back Pay Under Plan. A Participant may elect to defer
accumulated sick pay, accumulated vacation pay, and back pay under the Plan, provided
that these amounts may be deferred for any calendar month only if an agreement
providing for the deferral is entered into before the beginning of the month in which the
amounts would otherwise be paid or made available and the Participant is an employee in
that month.
ARTICLE IV — CONTRIBUTIONS AND LIMITATIONS
4.1 Employee Deferral General Limitations. Except as provided in section 4.2, the
maximum Annual Deferral amount under the Plan for any Participant for the taxable year
shall not exceed the lesser of (i) the Applicable Dollar Amount for such taxable year; or
(ii) 100% of the Participant's Includible Compensation for such taxable year.
4.2 Special Section 457 Catch-up. Notwithstanding any provision in Section 4.1 to the
contrary, with respect to any one or more of the three (3) taxable years ending before the
date of the Participant's Normal Retirement Age, a Participant may elect to have
Deferred Compensation contributed to the Plan in an amount not to exceed the lesser of:
(a) Twice the dollar amount in effect for such taxable year under IRC Section
457(e)(15), or
(b) The amount of the Participant's "Underutilized Limitation" for the
Participant's taxable year, as determined pursuant to Treas. Reg. Section
1.457-4(c)(3)(ii) and any successor regulations or guidance of similar import.
A Participant may elect to apply the 457(b) catch-up limitation under the Plan only once,
regardless of whether the full amount of the limitation is utilized or whether the
limitation is utilized for all three years.
4.3 Catch-Up Contributions for Individuals Age 50 and Older. Any Participant who is
projected to attain age 50 before the end of a calendar year (or such other date as the
Treasury Department may require by regulations) may elect to have additional Deferred
Compensation contributed to the Plan in an amount not to exceed the catch-up limit
under IRC Section 414(v) for the taxable year. The maximum amount of age 50 catch-up
contributions for a taxable year under IRC Section 414(v) is as follows: $2,000 for 2003;
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$3,000 for 2004; $4,000 for 2005; $5,000 for 2006 and thereafter. After 2006, the
$5,000 limitation is adjusted for cost-of-living in accordance with Code Section 414(v).
Notwithstanding the foregoing, this paragraph shall not apply for any taxable year for
which ....a higher limitation under the special Section 457 catch-up described in Section 4.2
applies to such Participant, to the extent required by applicable statute or regulations.
4.4 401(a) Matching Contributions. Annually, the County shall decide, in its sole discretion
and subject to the general limitation described in Section 4.1 and the 457(b) catch-up
limitations described in Section 4.2, whether sufficient funds exist to make Matching
Contributions into a separate 401(a) match account of each eligible Employee. The
County shall have exclusive discretion to decide whether sufficient funds exist to make a
Matching Contribution in any given year. If the County determines that sufficient funds
do exist, the Matching Contribution shall be at the rate established by the County for
non-represented employees, and for represented employees at a rate established in the
bargaining agreement between the County and the Union representing the respective
employees. Any such Matching Contributions shall be credited to the appropriate
Participants' 401(a) match source maintained under the County's 401(a) Plan. The
County may make Matching Contributions at any time permitted by law and regulation.
In addition, the County shall also have the ability, subject to the general limitation
described in Section 4.1 and the 457(b) catch-up limitations described in Section 4.2, to
make voluntary discretionary contributions, in any amount it determines, into
Participants' Accounts maintained under this Plan.
4.5 Special Rules. For purpose of this Article 4, the following rules shall apply:
(a) Participants covered by more than one (1) eligible 457(b) plan. If a
Participant is or has been a participant in one (1) or more other eligible
457(b) plans (as defined by Code section 457(b)), then this Plan and all
such other 457(b) plans shall be considered as one (1) plan for purposes of
applying the foregoing limitations of this Article 4. For this purpose, the
Plan Administrator shall take into account any other such eligible plans
maintained by the County and shall also take into account any other such
eligible plans for which the Plan Administrator receives from the
Participant sufficient information concerning his or her participation in
such other plan.
(b) Participants covered by more than one (1) eligible 401(a) plan. If a
Participant is or has been a participant in one (1) or more other eligible
401(a) plans (as defined by Code section 401(a)), then the 401(a) Match
and all such other 401(a) plans shall be considered as one (1) plan for
purposes of applying the foregoing limitations of this Article 4. For this
purpose, the Plan Administrator shall take into account any other such
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eligible plans maintained by the County and shall also take into account
any other such eligible plans for which the Plan Administrator receives
from the Participant sufficient information concerning his or her
participation in such other plan.
(c) Pre-Participation Years. In applying Section 4.2, a year shall be taken
into account only if (i) the Participant was eligible to participate in the
Plan during all or a portion of the year; and (ii) Compensation deferred, if
any, under the Plan during the year was subject to the limitations
described in Section 4.1 or any other Plan limit required by Code section
457(b).
(d) Pre-2002 Coordination Years. For purposes of Section 4.2 (b),
"contributions to Pre-2002 Coordination Plans" shall mean any employer
contribution, salary reduction or elective contribution under any Code
section 401(k) qualified cash or deferred arrangement, Code section
402(h)(1)(B) simplified employee pension (SARSEP), Code section
403(b) annuity contract, and Code section 408(p) simple retirement
account, or under any plan for which a deduction is allowed because of a
contribution to an organization described in Code section 501(c)(18),
including plans, arrangements or accounts maintained by the County or
any employer for whom the Participant performed services. However, the
contributions for any calendar year are only taken into account for
purposes of Section 4.2(b) to the extent that the total of such contributions
does not exceed the aggregate limit referred to in Code section 457(b)(2)
for that year. In applying the section 457(b)(2)(B) limitation for
includible compensation for years prior to 2002, the limitation is 33% of
the Participant's compensation includible in gross income.
(e) Disregard Excess Deferral. For purposes of Sections 4.1, 4.2 and 4.3, an
individual is treated as not having deferred compensation under a plan for
a prior taxable year to the extent excess deferrals under the plan are
distributed, as described in Section 4.6. To the extent that the combined
deferrals for pre-2002 years exceeded the maximum deferral limitations,
the amount is treated as an excess deferral.
4.6 Correction of Excess Deferrals. If the Deferred Salary on behalf of a Participant for any
calendar year exceeds the limitations described in Sections 4.1, 4.2 and 4.3, or the
Deferred Salary on behalf of a Participant for any calendar year exceeds the limitations
described above when combined with other amounts deferred by the Participant under
another eligible deferred compensation plan under Code section 457(b) for which the
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Participant provides information that is accepted by the Plan Administrator, then the
Deferred Salary, to the extent in excess of the applicable limitation adjusted for any
income or loss in value, if any, allocable thereto, shall be distributed to the Participant.
4.7 Protection of Persons Who Serve In Uniformed Service. A Participant whose
employment with the County is interrupted by qualified military service under Code
section 414(u) or who is on a leave of absence for qualified military service under Code
section 414(u) may elect to have additional Deferred Salary made upon the resumption of
employment with the County equal to the maximum Deferred Salary that the Participant
could have elected during that period if the Participant's employment with the County
had continued (at the same level of Compensation) without interruption or leave, reduced
by Deferred Salary, if any, actually made for the Participant during the period of
interruption or leave. This right applies for five (5) years following the resumption of
employment (or, if sooner, for a period equal to three (3) times the period of the
interruption or leave).
ARTICLE V — DISTRIBUTIONS
5.1 Benefit Distributions. Upon Severance from Employment with the County, a Participant
shall be entitled to receive a distribution of his or her Account balance under a form of
distribution permitted under Section 5.3, and such distribution shall commence at the
date provided in Section 5.2. A Participant on a leave of absence shall not be deemed to
have had a Severance from Employment until the leave of absence expires and the
Participant separates from employment with the County.
5.2 Benefit Commencement Date. In accordance with and subject to Code section 401(a) (9)
and Section 5.5, a Participant (or his Beneficiary) after Severance from Employment with
the County shall be permitted to elect to receive a distribution from his or her Account.
The election shall be made in accordance with procedures established by the Plan
Administrator. Actual distributions shall be made as soon as administratively practicable
after a Participant's proper election.
5.3 Forms of Distribution. In coordination with an election to commence benefits under
Section 5.2, a Participant (or Beneficiary) shall elect to receive payment in one of the
following distribution forms:
(a) lump sum payment;
(b) installment payments; or
(c) any other option designated by the Plan Administrator, in its sole and absolute
discretion.
5.4 Minimum Distribution Rules
General Rules.
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The entire interest of the Participant will be distributed, or commence to be distributed,
not later than April 1 following the later of the calendar year in which the Participant
attains age 70 1/4 years or the calendar year in which the Participant retires, (referred to
herein as the "Required Beginning Date)."
Limitation of Distribution.
(a) Notwithstanding any other provision of the Plan, distributions shall be made in a
form under which:
(i) The amount distributed each year, commencing with the Required
Beginning Date, must be at least the level amount determined by applying
the Participant's entire interest to the purchase of an annuity contract
commencing payments at least annually on or before the Required
Beginning Date;
(ii) if provision is made for the payment of a portion of the benefits to a
Beneficiary, the amount payable to the Participant will be paid at times
specified by the Secretary of the Treasury, which are not later than the
times determine under regulations issued pursuant to section 401(a)(9)(G)
of the Code pertaining to the minimum distribution incidental benefit
requirements; and
(iii) any amount not distributed to the Participant during his or her life will be
distributed after the death of the Participant, at least as rapidly as the
method being used as of the date of death.
(b) If distribution first commences after the Participant's death, the Participant's entire
interest must be distributed over a period not to exceed (i) the Beneficiary's life or life
expectancy, if the Beneficiary is the Participant's surviving spouse and if distributions
commence on or before the date the deceased Participant would have attained age 70 I/2
years, (ii) the life expectancy of the Beneficiary, if the Beneficiary is not the Participant's
surviving spouse and if distributions commence within one (1) year of the date of the
Participant's death in equal or substantially equal payments, or (iii) the lesser of five (5)
years from the date of the Participant's death or the Beneficiary's life expectancy, if
subsection (b)(i) and (ii) of this paragraph are inapplicable. For purposes of this
subsection, any amount paid to a child of the Participant will be treated as if it had been
paid to the surviving spouse if the remainder of the interest becomes payable to the
surviving spouse when the child reaches the age of majority.
(c) The Plan will apply the minimum distribution requirements of IRC Section
401(a)(9) pursuant to Treasury Regulations section 1.401(a)(9)-1 through 1.401(a)(9)-6,.
Thereafter, distributions under the Plan shall be made in accordance with the
requirements of section 401(a) (9) of the Code, including the incidental death benefits
requirement of section 401(a) (9), and Treasury Regulations Sections 1.401(a) (9)-1
through 1.401(a) (9)-9, and such Code and Treasury Regulation provisions shall
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override any distribution options under the Plan that are inconsistent with such
provisions. For purposes of this section, life expectancies will be computed by use of
the expected return multiples as published in the applicable Treasury Regulations, using
the calculation methods required therein, and as described in the applicable regulations
under section 401(a)(9) of the Code.
5.5 Hardship Distributions, if, before his Severance from Employment, the Participant has
an unforeseeable emergency that is approved by the Administrator as satisfying section
8.2, the Participant (but not a Beneficiary or Alternate Payee) is entitled to receive a
hardship Distribution (as a cash lump sum) of the amount determined by the
Administrator to be the amount that is reasonably needed to satisfy the emergency need.
5.6 Definition of Unforeseeable Emergency. An unforeseeable emergency means a severe
financial hardship of the Participant resulting from:
(a) An illness or accident of the Participant or his Spouse or dependent (as
defined in section 152(a) of the Code);
(b) Loss of the Participant's or Beneficiary's property due to casualty; or
(c) Other similar extraordinary and unforeseeable circumstances arising as a
result of events beyond the control of the Participant or Beneficiary. The
imminent foreclosure of or eviction from the Participant's primary
residence, the need to pay for medical expenses, including non-refundable
deductibles, as well as for the cost of prescription drug medication or the
need to pay for the funeral expenses of a spouse or dependent may
constitute an unforeseeable emergency. Except in extraordinary
circumstances, the purchase of a home and the payment of college tuition
are not unforeseeable emergencies under this section.
5.7 Unforeseeable Emergency Distribution Standard. Whether a Participant or Beneficiary is
faced with an unforeseeable emergency, as defined in Section 5.6, permitting a
Distribution under this Article V is to be determined based on the relevant facts and
circumstances of each case, but, in any case, a Distribution on account of unforeseeable
emergency may not be made to the extent that such emergency is or may be relieved
through reimbursement or compensation from insurance or otherwise; by liquidation of
the Participant's assets, to the extent the liquidation of such assets would not itself cause
severe financial hardship; or by cessation of deferrals under the Plan.
5.8 Distribution Necessary to Satisfy Emergency Need. Distributions because of an
unforeseeable emergency must be limited to the amount reasonably necessary to satisfy
the emergency need (which may include any amounts necessary to pay any federal, state,
or local income taxes or penalties reasonably anticipated to result from the Distribution).
5.9 Administrator Must Determine Hardship. The Administrator must determine whether the
circumstances of the Participant constitute an unforeseeable emergency within the
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meaning of section 5.7. Following a uniform procedure, the Administrator's
determination shall consider any facts or conditions deemed necessary or advisable by
the Administrator, and the Participant shall be required to submit any evidence of his
circumstances that the Administrator requires. The determination as to whether the
Participant's circumstances are a case of hardship shall be based on the facts of each case;
provided, however, that all determinations as to hardship shall be uniformly and
consistently made according to the provisions of the Plan for all Participants in similar
circumstances. The Administrator may require that any statement made as part of a claim
for a hardship Distribution be made under penalties of perjury. The Administrator may
(but need not) require that any statement made as part of a claim for a hardship
Distribution be signed in the presence of a notary public.
5.10 Rollover Distributions.
(a) A Participant or the surviving spouse of a Participant (or a Participant's former
spouse who is an alternate payee under a Qualified Domestic Relations Order)
who is entitled to an eligible rollover distribution may elect, at the time and in
the manner prescribed in the sole and absolute discretion of the Plan
Administrator, to have all or any portion of the distribution paid directly to an
eligible retirement plan specified by the Participant in a direct rollover. The Plan
Administrator may require any documentation that it deems necessary to
effectuate the rollover.
(b) Distributions to Inherited Individual Retirement Plan of Nonspouse Beneficiary.
With respect to any portion of a distribution made after December 31, 2009 to an
individual who is the designated beneficiary (as defined by IRC Section
401(a)(9)(E)) of a deceased Participant and who is not the surviving spouse of
the Participant, if a direct rollover is made to an individual retirement plan (as
defined in 1R.0 Section 402(c)(8)(B)(i) and (ii)) of the non-spouse designated
beneficiary, such individual retirement plan shall be treated as an inherited
individual retirement account or inherited individual retirement annuity, pursuant
to RC Section 401(c)(11).
(c) For purposes of this Section 5.10, an eligible rollover distribution means any
distribution of all or any portion of a Participant's Account, except that an
eligible rollover distribution does not include (i) any installment payment under
Section 5.3 for a period of over ten (10) years or more; (ii) any distribution made
under Section 5.6 as a result of an unforeseeable emergency; or (iii) for any other
distribution, if any of the distribution is a required minimum distribution under
Code section 401(a)(9). An eligible retirement plan means an individual
retirement account described in Code section 408(a), an individual retirement
annuity described in Code section 408(b), a qualified trust described in Code
section 401(a), an annuity plan described in Code sections 403(a) or 403(b), or
an eligible governmental plan described in Code section 457(b), that accepts
eligible rollover distributions.
(d) Upon the transfer of assets pursuant to this Section 5.10, the Plan's liability to
pay benefits to the Participant or Beneficiary under the Plan shall be discharged
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to the extent of the amount transferred on behalf of the Participant or
Beneficiary. The Plan Administrator may require such documentation from the
receiving plan as it deems appropriate or necessary to effectuate the transfer.
ARTICLE VI— DEATH BENEFITS
6.1 Form and Amount of Death Benefits. Upon the death of a Participant, death benefits
shall be payable as follows:
(a) Death Prior to Benefit Commencement Date. If a Participant's death occurs
before his or her Benefit Commencement Date, his or her Beneficiary shall elect a
Benefit Commencement Date that is no later than the December 31st of the
calendar year in which the fifth (5th) anniversary of the date of the Participant's
death occurs and a Benefit Payment Option that requires a complete distribution
of the Participant's Account by such date. If the Beneficiary is the Participant's
surviving spouse, such spouse may elect that distributions commence at any time
on or before the later of: (1) December 31st of the calendar year immediately
following the calendar year of the Participant's death, or (2) December 31st of the
calendar year in which the Participant would have attained age 70 'A, in a
payment option that provides payments no longer than over the life of such
spouse (or over a period not extending beyond his or her life expectancy). If the
surviving spouse dies before completion of such payments, the remaining balance
of the Account shall be paid to his or her estate.
(b) Death After Benefit Commencement Date. If a Participant's death occurs after
he/she has begun to receive benefits under a Benefit Payment Option, the
remaining payments, if any, shall be payable to the Participant's Beneficiary
commencing within the thirty (30) day period commencing with the sixty-first
(61st) day following the Participant's death. If the Beneficiary is any person
other than the Participant's surviving spouse, such payments must be completed
on or before the 5th anniversary of the Participant's death. In no event shall the
County or Plan Administrator be liable to the Beneficiary for the amount of any
payment made in the name of the Participant before the Plan Administrator
receives proof of death of the Participant. If the Beneficiary dies before
completion of such payments, the remaining balance of the Account shall be paid
to his or her estate.
(c) A Participant or the surviving spouse of a Participant (or a Participant's former
spouse who is an alternate payee under a Qualified Domestic Relations Order)
who is entitled to an eligible rollover distribution may elect, at the time and in
the manner prescribed in the sole and absolute discretion of the Plan
Administrator, to have all or any portion of the distribution paid directly to an
eligible retirement plan specified by the Participant in a direct rollover. The Plan
Administrator may require any documentation that it deems necessary to
effectuate the rollover,
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(d) Distributions to Inherited Individual Retirement Plan of Non-spouse Beneficiary.
With respect to any portion of a distribution made after December 31, 2009 to an
individual who is the designated beneficiary (as defined by IRC Section
401(a)(9)(E)) of a deceased Participant and who is not the surviving spouse of
the Participant, if a direct rollover is made to an individual retirement plan (as
defined in IRC Section 402(c)(8)(B)(i) and (ii)) of the non-spouse designated
beneficiary, such individual retirement plan shall be treated as an inherited
individual retirement account or inherited individual retirement annuity, pursuant
to IRC Section 401(c)(11).
(e) Section 401(a) (9) Compliance. Notwithstanding any other provision of this
Article, all distributions shall commence not later than the latest permissible
Benefit Commencement Date under IRC Section 401(a)(9) and regulations
thereunder, and each benefit shall be distributed in accordance with IRC Section
401(a)(9) and the regulations thereunder. IRS Section 401(a) (9) and the
regulations thereunder are incorporated herein by reference.
6.2 Beneficiary Designation.
(a) In General. The Participant shall file with the Plan Administrator a
written designation of primary and contingent Beneficiary which shall indicate the
person or persons who shall receive benefits payable under this Plan upon the
Participant's death. The Participant accepts and acknowledges the burden for executing
and filing a proper Beneficiary designation with the Plan Administrator.
(b) Change in Beneficiary Designation. Any change in Beneficiary
designation shall become effective only upon receipt of the form by the Plan
Administrator whether or not the Participant is living at the time of such receipt. Any
change of Beneficiary designation filed in proper form with the Plan Administrator shall
revoke all prior Beneficiary designations.
(c) Adequacy of Beneficiary Designation. The Plan Administrator shall
determine the acceptability of a Beneficiary designation or change of Beneficiary
designation. The Plan Administrator shall notify the Participant if the Beneficiary
designation is not acceptable and inform the Participant of the method of correction. A
corrected Beneficiary designation shall be effective as of the date on which the
Participant first attempts to designate such individual.
(d) Death Without Beneficiary Designation. If a Participant dies without
having designated a beneficiary or if every designated beneficiary has predeceased the
Participant, the benefit payment under this Plan shall be made to the properly appointed
fiduciary of the Participant's estate provided that if a fiduciary has not been appointed
and qualified within 120 days after the death, the payment shall be made in accordance
with State Law.
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ARTICLE VII— WITHDRAWALS AND PAYMENTS NOT DEPENDENT ON A
SEVERANCE FROM...EMPLOYMEN.T
7.1 Qualified Domestic Relations Orders. The Sponsor and the Plan Administrator shall
comply with any "Qualified Domestic Relations Order" as defined in lRC Section 4 1 4(p)
(a "QDRO"), including an order requiring the distribution of a Participant's benefits to an
Alternate Payee in advance of the general rules for distributions set forth herein. To the
extent required in a QDRO, any portion of a Participant's benefits may be paid to (or a
portion of a Participant's Account may be set aside for the benefit of) the Participant's
spouse, former spouse or other Alternate Payee. Upon receipt of notification of any
judgment, decree or order which relates to the provision of child support, alimony
payments, or marital property rights of a spouse, former spouse, child, or other dependent
of a Participant and which is made pursuant to a state domestic relations and/or
community property law ("Court Order"), the Plan Administrator shall, within a
reasonable period after receipt of such Court Order, determine whether it satisfies the
requirements of a QDRO.
(a) Segregation of Account, Payment. The Plan Administrator may segregate in
a separate account in the Plan, the amounts which would be payable to the
Alternate Payee pursuant to a QDRO. Such amounts may be paid to the
Alternate Payee in advance of the general distribution rules under this Plan.
(b) Status, Rights and Privileges of Alternate Payees. Except as otherwise
provided herein, an Alternate Payee shall have the status and rights of a
Beneficiary under this Plan to the exclusion of all other rights associated with
Participants under this Plan, including the right to receive payment under the
terms of the QDRO at the time and manner specified in such QDRO
(provided, however, that such payment may not be made in a form which is
not available to Participants under the Plan), and the right to direct the manner
in which Plan amounts allocated to such Alternate Payee are invested.
(c) QDRO Expenses. Any expense related to the administration of a QDRO shall
be assessed against the Participant's Account.
ARTICLE VIII — PLAN LOANS
8.1 Loans. A Participant who is an active Employee of the County may apply for and
receive a loan from his or her Account as provided in this Article 8. As determined in
the sole and absolute discretion of the Plan Administrator, loans shall not be made in an
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amount less than two thousand dollars ($2,000.00). A Participant shall not be permitted
to have more than two (2) loans outstanding at any time. Loans shall be made in
accordance with procedures established in the sole and absolute discretion of the Plan
Administrator.
8.2 Maximum Amount of Loan. No loan to a Participant may exceed the lesser of: (a)
$50,000, reduced by the excess in any of the outstanding balance on any loan from the
Plan to the Participant during the one-year period ending on the day before the date the
loan is made over the outstanding balance of loans from the Plan on the date such loan
was made (not taking into account any payments made during such one-year period), or
(b) the greater of (i) one half of the present value of the Participant's Account balance
(as of the Valuation Date immediately preceding the date on which the loan is approved
by the Plan Administrator), or (ii) $10,000.00.
For purposes of this Section 8.2, any loan from any other plan maintained by the County
shall be treated as if it were a loan made from the Plan, and the Participant's interest
under any such other plan shall be considered an interest under this Plan; provided
however, that the provisions of this paragraph shall not be applied so as to allow the
amount of a loan under this Section 8.2 to exceed the amount that would otherwise be
permitted in the absence of this paragraph.
8.3 Terms of the Loan. The terms of the loan shall:
(a) require level amortization with payments not less frequently than quarterly
throughout the repayment period, except that alternative arrangements for
repayment may apply in the event that the borrower is on a bona fide unpaid
leave of absence for a period not to exceed one (1) year for leaves other than a
qualified military leave within the meaning of Code section 414(u) or for the
duration of a leave which is due to qualified military service;
(b) require that the loan be repaid within five (5) years unless the Participant
certifies in writing to the Plan Administrator that the loan is to be used to acquire
any dwelling unit which within a reasonable period of time (as determined in the
sole and absolute discretion of the Plan Administrator) is to be used (determined
at the time the loan is made) as the principal residence of the Participant; and
(c) provide for a reasonable rate of interest to be determined in the sole and absolute
discretion of the Plan Administrator.
8.4.1 Security for Loan; Default.
(a) Security. Any loan to a Participant under the Plan shall be secured by the pledge
of the portion of the Participant's interest in the Plan invested in such loan.
(b) Default. In the event that a Participant fails to make a loan payment under this
Article 8 within ninety (90) days after the date such payment is due, a default on
the loan shall occur. In the event of such a default: (i) all remaining payments on
the loan shall be immediately due and payable; (ii) effective as of the first day of
the calendar month next following the month in which any such loan default
occurs, the interest rate for such loan shall be (if higher than the rate otherwise
applicable) the rate being charged (or would be charged) on loans from the Plan
that are approved (or would be approved) by the Plan Administrator in the month
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in which such default occurs; (iii) no contributions shall be made on such
Participant's behalf prior to the first payroll period that follows by twelve (12)
calendar months the date of repayment in full of such loan; and (iv) the
Participant shall be permanently ineligible for any future loans from the Plan. in
case of any default on a loan to a Participant, the Plan Administrator shall apply
the portion of the Participant's interest in the Plan held as security for the loan in
satisfaction of the loan on the date of Severance from Employment with the
County. In addition, the Plan Administrator shall take any legal action it shall
consider necessary or appropriate to enforce collection of the unpaid loan, with
the costs of any legal proceeding or collection to be charged to the Account of
the Participant.
(c) Death. Notwithstanding any other provision of the Plan to the contrary, in the
event a loan is outstanding hereunder on the date of a Participant's death, his or
her estate shall be his or her Beneficiary as to the portion of his or her interest in
the Plan invested in such loan (with the Beneficiary or Beneficiaries as to the
remainder of his or her interest in the Plan to be determined in accordance with
the otherwise applicable provisions of the Plan).
8.5 Repayment. In the sole and absolute discretion of the Plan Administrator, a Participant
may be required, as a condition to receiving a loan, to comply with certain arrangements
prescribed by the Plan Administrator. Repayments of a loan shall be made in equal
amounts (comprised of both principal and interest) with the first payment to be made as
soon as practicable after the loan funds are disbursed; provided however, in the sole and
absolute discretion of the Plan Administrator, a Participant may prepay the entire
outstanding balance of his or her loan at any time. Loan repayments shall be
characterized as self-directed investments in accordance with Section 11.2.
ARTICLE IX —TRANSFERS TO THE PLAN
9.1 Transfers to the Plan. In the sole and absolute discretion of the Board, the Plan
Administrator may permit Participants who are entitled to receive an eligible rollover
distribution from another eligible retirement plan to request to have all or a portion of
the eligible rollover distribution paid to the Plan. The Plan Administrator may require
any documentation from the distributing plan it deems necessary to effectuate the
rollover. These transfers shall be permitted only if the other plan provides for the direct
transfer of the Participant's interest therein to the Plan. The Plan Administrator may
require, in its sole and absolute discretion that the transfer be in cash or other property
acceptable to the Plan Administrator.
An eligible rollover distribution means any distribution of all or any portion of a
Participant's benefit under another eligible retirement plan, except that an eligible
rollover distribution does not include (1) any installment payment for a period of ten
(10) years or more, (2) any distribution made as a result of an unforeseeable emergency
or other distribution which is made upon a hardship, or (3) for any other distribution, the
portion, if any, of the distribution that is a required minimum distribution under Code
section 401(a)(9). In addition, an eligible retirement plan means an individual
retirement account described in Code section 408(a), an individual retirement annuity
17
described in Code section 408(b), a qualified trust described in Code section 401(a), an
annuity plan described in Code sections 403(a) or 403(b), or an eligible governmental
plan described in Code section 457(b), that accepts the eligible rollover distribution.
The Plan shall establish and maintain for the Participant a separate account for any
eligible rollover distributions paid to the Plan from any eligible retirement plan.
ARTICLE X — TRUST
10.1 All contributions and transfers to the Plan, all property and rights purchased with such
amounts, and all income attributable to such amounts, shall be held and invested in the
Trust in accordance with the Plan and the Trust's written agreement. The Trust, and any
subtrust established under the Plan, shall be established pursuant to a written agreement
that constitutes a valid trust under the laws of the State of Michigan. The Trustee shall
ensure that all investments, amounts, property, and other rights held under the Trust are
held for the exclusive benefit of the Participants and their Beneficiaries and to defray
any reasonable expenses of the Plan and/or the Trust. It shall be impossible, prior to the
satisfaction of all liabilities with respect to the Participants and their Beneficiaries, for
any part of the assets and income of the Trust to be used for, or diverted to, purposes
other than for the exclusive benefit of the Participants and their Beneficiaries.
ARTICLE XI— INVESTMENT POWERS
Investment Powers. In accordance with the Investment Policy Statement prepared by the
Board, the Trustee shall have full discretion and authority to invest the Trust's assets,
except with respect to assets under the control or direction of an investment manager or
with respect to assets subject to Section 11.2.
11.2 Self Directed Investments. To the extent that a Participant's Account has been
designated as self-directed, a Participant may, subject to procedures established and
applied in a uniform, nondiscriminatory manner; elect to direct the Trustee to invest his
or her Account in specific assets or funds. In the absence of an election, Participant
Accounts shall be invested in an "age based lifestyle fund" to be selected in the sole and
absolute discretion of the Board.
The portion of a Participant's Account which is self-directed by the Participant shall not
share in Trust net earnings or net losses, but shall be charged or credited as appropriate
with net earnings, losses, appreciation and depreciation attributable to such investment
activities directly related to the Participant Account that is self-directed.
The Trustee shall follow the directions given by a Participant subject to the limitations
contained in this Plan. Neither the Trustee nor any other person shall be under a duty to
question any direction of the Participant, or make any suggestions to the Participant in
connection with any direction. The Trustee shall comply as promptly as practicable with
18
directions given by a Participant.
All self-directed Participant Accounts shall be subject to the following limitations:
The Board or Trustee shall not be responsible or liable for any loss or expense
which may arise from or result from the compliance with any Participant
direction, nor shall the Board or Trustee be liable for any loss or expense which
may result from either the Board's or the Trustee's refusal or failure to comply
with any Participant direction
(b) The Board shall establish rules and procedures limiting the investment vehicles
which may be selected by Participants, provided however, that such rules and
procedures shall be applied in a uniform and nondiscriminatory manner. The
Board shall have the express power to refuse any investment direction which
would be administratively burdensome or which the Board believes, in its sole
and absolute discretion, would constitute a prohibited transaction as defined in
Code section 4975, which would generate unrelated business income or unrelated
debt financed income to the Plan or would otherwise be improper by virtue of any
applicable law.
(c) All expenses incurred by the Trust or Plan pursuant to a Participant's investment
directions, including but not limited to brokerage fees, transfer taxes, state and
federal income taxes arising from unrelated business taxable income or any other
tax of any kind whatsoever which may be levied or assessed under existing or
future laws upon or in respect to a Participant's investment directions or any other
incidental expenses shall be paid solely with funds from the account of such
Participant.
(d) No Participant shall have the right to elect to have the Trustee purchase an
insurance contract on his or her life for his or her Account, except those certain
life insurance contracts purchased prior to January 1, 1989.
11.3 Investment Manager. In the event that the Plan Administrator appoints an investment
manager for all or a portion of the Trust, the following shall apply:
(a) The Plan Administrator shall notify the Trustee of the appointment and of the
date that the appointment becomes effective.
(b) The investment manager shall have the sole responsibility, duty and power to
manage and direct the Trust assigned to him.
(c) The investment manager may exercise his authority through procedures agreed
upon with the Trustee and in accordance with all applicable laws.
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11.4 Statutory Authorities. Notwithstanding any other provision of the Plan to the contrary,
the Trust's assets shall be invested in accordance with the applicable provisions of Code
section 457 (and the regulations thereunder) and Michigan Compiled Laws sections
38.1132-38.1141 (Public Employee Retirement System Investment Act; Public Act 314
of 1975).
ARTICLE XII— PLAN ADMINISTRATOR POWER AND DUTIES
12.1 Duties and Responsibilities of the Plan Administrator in the Administration of the Plan.
The powers, duties and responsibilities of the Plan Administrator, in its sole and absolute
discretion, with respect to the administration of the Plan, shall include but not be limited
to the following:
(a) To determine and authorize payment of Plan benefits;
(b) To make, amend and enforce all necessary rules and regulations regarding the
Plan's administration;
(c) To resolve any and all issues and problems as may arise in connection with the
interpretation, construction and administration of the Plan;
(d) To invest Plan assets in accordance with the Plan's terms;
(e) To ensure that the Plan complies with all Federal, State and local statutory and
regulatory agency requirements;
To cause the preparation and filing of all required agency reports;
(g) To establish and maintain appropriate books and records for the Plan;
(h) To draft and disseminate information regarding the Plan;
(i) To enter into agreements to provide services for the administration of the Plan;
(j) To approve or deny unforeseeable emergency distributions under Section 5.6; and
(k) To manage other duties assigned to him or her by the Board.
12.2 Binding Action. Any decision or action of the Plan Administrator concerning or in
respect to any issue or problem arising out of or in connection with the construction,
20
interpretation, administration and application of the Plan, including any rules and
regulations promulgated hereunder, may, in the Board's sole discretion he appealable to
the Board.
12.3 Cost. The method of defraying Plan costs shall be determined by the Plan Administrator.
ARTICLE XIII— PLAN ADMINISTRATION
13.1 Non-Assignability. Except as provided in Sections 13.2 and 13.3, the interests of each
Participant or Beneficiary under the Plan are not subject to claims of the Participant's or
Beneficiary's creditors; and neither the Participant nor any Beneficiary shall have any
right to sell, assign, transfer, or otherwise convey the right to receive any payments
hereunder or any interest under the Plan, which payments and interest are expressly
declared to be non-assignable and non-transferable.
13.2 Qualified Domestic Relations Orders. Notwithstanding Section 13.1, 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 ("QDRO"), then the specified amount of the
Participant's Account shall be paid in the manner and to the person or persons so directed
in the Qualified 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
Plan Administrator shall establish reasonable procedures for determining the status of
any such decree or order and for effectuating a distribution pursuant to the Qualified
Domestic Relations Order.
13.3 IRS Levy. Notwithstanding Section 13.1, the Plan Administrator may pay from a
Participant's or Beneficiary's Account the amount that the Plan 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.
13.4 Mistaken Contributions. If any contribution (or any portion of a contribution) is made to
the Plan by a good faith mistake of fact, then within one (1) year after the payment of the
contribution, and upon receipt in good order of a proper request approved by the Plan
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 Plan Administrator, to the Employer.
21
13.5 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 Plan Administrator (in its
sole and absolute discretion), benefits will be paid to such person as the Plan
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.
13.6 Procedure When Distributee Cannot Be Located. The Plan 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 County's or the Plan Administrator's records, (b) notification sent
to the Social Security Administration or the Pension Benefit Guaranty Corporation
(under their program to identify payees under retirement plans), and (c) the payee has not
responded within six (6) months. If the Plan Administrator is unable to locate a person
entitled to benefits hereunder, or if there has been no claim made for the benefits, the
benefits shall be deemed forfeited.
13.7 Forfeitures. A benefit shall be deemed forfeited if the Plan Administrator is unable to
locate a Participant or Beneficiary to whom payment is due. Such benefit shall not be
deemed forfeited for a period of at least five (5) years following the date on which the
benefit payments would otherwise commence. Such forfeitures may be used to defray
administrative expenses of the Plan.
13.8 Tax Benefits. The County does not and shall not guarantee any tax benefits or
advantages under the Plan.
13.9 Rights of Members. Each Employee, upon having elected to become a Participant, shall
be deemed to have assented to the terms and conditions of the Plan. Each Participant
shall at reasonable times be allowed to examine his or her particular Account to
determine its status and condition.
13.10 Termination or Amendment. Subject to the applicable requirements of the Code and
laws of the State of Michigan, the County reserves the right at any time to amend or
terminate the Plan without the consent of any Participant or Beneficiary. Except as may
be required to maintain the status of the Plan as an eligible deferred compensation plan
under Code section 457 or to comply with other applicable laws, no amendment,
modification or termination shall impair any individual's right to benefits under the Plan
or expand the County's obligation to provide benefits with respect to amounts previously
credited to Participants' Accounts.
13.11 Conformity with Internal Revenue Code Section 457. The Plan shall be operated and
administered consistent with Code section 457 and all applicable regulations. Such
22
authorities shall be controlling as to any inadvertent inconsistencies which may occur in
the Plan's provisions.
13.12 Employment. Nothing contained in this Plan shall be deemed to give any Participant or
Employee the right to be retained in the service of the County or to interfere with any
right of the County to discharge any Participant or Employee at any time regardless of
the effect which such discharge shall have upon him or her as a Participant in the Plan.
13.13 Construction. The Plan shall be construed under the laws of the State of Michigan and in
conformity with the requirements of Code section 457 and all regulations thereunder
applicable to eligible deferred compensation plans. Article headings are for convenience
only and shall not be considered as part of the terms and provisions of the Plan. Words
in the masculine gender shall include the feminine, and the singular shall include the
plural, and vice versa, unless otherwise qualified by the context.
13.14 Binding Contract. The terms of the Plan, as duly amended from time to time, shall
constitute a contract between each Participant and the County and shall be binding, as
applicable, upon their heirs, administrators, trustees, successors, assigns, and
Beneficiaries.
13.15 Plan Expenses. The expenses of administering the Plan and Trust, including (i) expenses
incurred by the Board in the administration of the Plan and Trust, (ii) fees and expenses
approved by the Board for investment advisory, custodial, recordkeeping, and other Plan
administration and communication services, and (iii) any other expenses or charges
allocable to the Plan or the Trust that have been approved by the Board shall be charged
to the Trust; provided however, the Board, in its sole and absolute discretion, may charge
an individual Participant's Account for expenses incurred by the Plan on behalf of the
Participant (including, but not limited to, expenses incurred by the Plan in determining
the status of a Qualified Domestic Relations Order or in preparation of loan documents).
Brokerage fees, transfer taxes, and any other costs incident to the purchase or sale by the
Trust of securities or other investments shall be deemed to be part of the cost of such
securities or investments or deducted in computing the sales proceeds therefrom and shall
be accounted for accordingly.
13.16 Right to Suspend Benefits and Correct Errors. The Plan Administrator shall take such
steps as are considered necessary and appropriate to remedy any inequity that results
from incorrect information received or communicated in good faith or as the
consequence of an administrative error. The Plan Administrator may suspend the
payment until satisfied as to the correctness of the payment or the person to receive the
payment or to allow filing in any court of competent jurisdiction of a suit in such form as
the Plan Administrator considers appropriate for a legal determination of the benefits to
be paid and the persons to receive them. The Plan Administrator specifically reserves the
right to correct errors of every sort, and the Participant hereby agrees as Participant or on
behalf of any Beneficiary or Beneficiaries to any method of error correction as the Plan
Administrator shall specify. The objective of any such method of error correction shall
23
be, to the extent reasonably possible, to adjust the Account of the Participant by
reversing transactions or taking other actions to approach the situation that would have
existed if the error had not been made. The Plan Administrator shall also be authorized
to recover any payment made in error including the right to make deductions from future
benefits.
13.17 Reliance on Electronic Instructions, Directions, Signatures, Contracts and Records. For
all purposes under the Plan, the Plan Administrator and the County may (but are not
required to) give the same effect to electronic instructions, directions, signatures,
contracts, records or similar communications (collectively, "records and signatures") as it
would give to written records and signatures, and the Plan Administrator's and the
County's actions in so doing shall be protected to the same extent as if such electronic
records and signatures were, in fact, in written form. Any such electronic records and
signatures shall be retained and provided by the Plan Administrator and/or the County in
accordance with applicable law. For all purposes under the Plan, the term "electronic" or
"electronically" shall mean relating to technology having electrical, digital, magnetic,
wireless, optical, electromagnetic, or similar capabilities.
13.18 Communications from Participants. All enrollments, elections, designations,
applications and other communications by or from an Employee, Participant,
Beneficiary, or legal representative of any such person regarding that person's rights
under the Plan shall be made in the form and manner established by the Plan
Administrator and shall be deemed to have been made and delivered only upon actual
receipt by the person designated by the Plan Administrator to receive such
communication. Neither the Plan Administrator nor the County shall be required to give
effect to any such communication that is not made on the prescribed form and in the
prescribed manner and that does not contain all information called for on the prescribed
form. The County shall promptly furnish the Plan Administrator or its designee a copy
of any such communication that is delivered or transmitted to the County.
13.19 Communications to Participants. All notices, statements, reports, and other
communications from the Plan Administrator or the County to any Employee,
Participant, Beneficiary, or legal representative of any such person shall be deemed to
have been duly given when delivered, or when mailed by first class mail, to such person
at his or her last mailing address appearing on the Plan's records.
13.20 Time Periods. As necessary or desirable to facilitate the proper administration of the
Plan and consistent with the requirements of Code section 457, the Plan Administrator
may further restrict the time periods during which a Participant or Beneficiary is required
to make any election under the Plan, including the making or amending of a Deferral
Agreement, the making or amending of investment option selections, the election of
distribution commencement dates or distribution forms.
24
13.21 Reliance on Data and Consents. The County, the Plan Administrator, and all other
persons or entities associated with the operation of the Plan, the administration
management of its assets, and the provision of benefits thereunder, may reasonably rely
on the truth, accuracy and completeness of all data provided by a Participant, and/or
Beneficiary, including, without limitation, data with respect to age, health and marital
status. Furthermore, the County, the Plan Administrator, and all persons identified above
may reasonably rely on all consents, elections and designations filed with the Plan or
those associated with the administration operation of the Plan by any Participant or
Beneficiary, or the representatives of such persons without duty to inquire into the
genuineness of any such consent, election or designation. None of the aforementioned
persons or entities associated with the administration operation of the Plan, its assets and
the benefits provided under the Plan shall have any duty to inquire into any such data,
and all may rely on such data being current to the date of reference. It shall be the duty
of the Participant or Beneficiary to advise the appropriate parties of any change in such
data. The Plan Administrator shall not be liable for the consequences of such change in
data,
13.22 Tax Consequences. Subject to the provisions of Section 13.23, the County does not
represent or guarantee that any particular Federal or State income, estate, payroll,
personal property or other tax consequences will occur because of the Participant's or
Beneficiary's participation in this Plan. The Participant shall be responsible to obtain
appropriate advice regarding all questions related to Federal, State or local income,
estate, payroll, personal property or other tax consequences arising from participation in
this Plan.
13.23 Withholding; Payroll Taxes. The trustee or custodian shall be entitled to withhold from
payments or benefits hereunder any income tax or payroll taxes required to be withheld
from such payments under local, state or federal law.
13.24 Equal Access to Benefits, Rights and Features. Any determination made by the County
with respect to the availability of benefits, rights and features under this Plan shall apply
on a non-discriminatory basis allowing equal access for all Participants; provided,
however, that such access may be limited by the terms of a collective bargaining
agreement or individual employment contract.
13.25 Effective Date. The effective date of this Plan shall be the date specified in the
Introduction.
13.26 Entire Agreement. This Plan and all properly adopted amendments to the Plan shall
govern the provision of deferred compensation benefits pursuant to IRC Section 457(b).
No other instrument, communication statement of any sort shall modify this Plan in any
way or be relief upon the parties to this Agreement.
13.27 Claims Procedures. Any person claiming a benefit, or requesting an interpretation or
ruling under the Plan, or requesting information under the Plan, shall present his or her
request in writing to the Plan Administrator. Any dispute over payment from Accounts
under the Plan shall be resolved by the Plan Administrator pursuant to its written claims
25
procedures. Such claims procedures shall comply with applicable State Laws including,
but not limited to, civil service rules and applicable collective bargaining agreements.
(a) Initial Claim. In order to request a benefit (a "Claim"), a Participant or
Beneficiary under the Plan (a "Claimant") or his duly authorized representative
must file such Claim in accordance with procedures established by the Plan
Administrator.
(b) Initial Decision.
(1) Time Limit. The Plan Administrator shall decide upon a Claim and notify
the Claimant of the decision within a reasonable period of time after
receipt of a Claim; provided however, that such period shall in no event
exceed ninety (90) days, unless special circumstances require an extension
of time for processing. If such an extension of time for processing is
required, then the Claimant shall, prior to the termination of the initial
ninety (90) day period, be furnished a written notice indicating such
special circumstances and the date by which the Plan Administrator
expects to render a decision. In the case of an extension, the Claimant
shall receive a written determination regarding the Claim no later than
ninety (90) days after the end of the initial ninety (90) day period.
(2) Notice of Denial. If the Claim is wholly or partially denied, then the Plan
Administrator shall furnish to the Claimant, within the time limit
applicable under (1) above, a written notice setting forth in a manner
calculated to be understood by the Claimant:
(a) The specific reason or reasons for such denial;
(b) Specific reference to the pertinent Plan provisions on which the
denial is based;
(e)
A description of any additional material or information necessary
for the Claimant to perfect his Claim and an explanation of why
such material or information is necessary; and
(d) Appropriate information as to the steps to be taken if the Claimant
wishes to submit his Claim for review pursuant to Section 13.28,
including notice of the applicable time limits set forth in Section
13.28(c)(1)
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13.28 Claim Review Procedure.
(a) Claimant's Rights. If a Claim is wholly or partially denied under Section 13.27,
the Claimant or his duly authorized representative shall have the following rights:
(1) To obtain, subject to (b) below, a full and fair review;
(2) To obtain, upon request and free of charge, reasonable access to, and
copies of, all documents, records and other information relevant to the
Claimant's Claim;
(3) To submit written comments, documents, records and other information
relating to the Claim; and
(4) For a review that takes into account all comments, documents, records and
other information submitted by the Claimant relating to the Claim, without
regard to whether the information was submitted or considered in the
initial benefit determination.
(b) Request for Review.
(1) Filing. To obtain a review pursuant to (a) above, a Claimant entitled to a
review or his duly authorized representative shall, subject to (2) below,
request a review (a "Request for Review") in accordance with procedures
established by the Plan Administrator.
(2) Time Limits for Requesting a Review. A Request for Review must be
mailed or delivered within sixty (60) days after receipt by the Claimant of
the written notice of the initial denial of the Claim.
(c) Decision on Review.
(1) Time Limit.
(A) If, pursuant to (b) above, a review is requested, the Plan
Administrator shall make a decision regarding the Request for
Review and notify the Claimant of the decision within a reasonable
period of time after the receipt of the request; provided however
that such period shall in no event exceed one hundred eighty (180)
days, unless special circumstances require an extension of time for
processing. If such an extension of time for processing is
required, then the Claimant shall, prior to the termination of the
initial one hundred eighty (180) day period, be furnished a written
notice indicating the special circumstances and the date by which
the Plan Administrator expects to render a decision. In the case of
an extension, the Claimant shall receive a written determination
27
regarding the Request for Review no later than sixty (60) days
after the end of the initial one hundred eighty (180) day period.
(2) Notice of Decision. The Plan Administrator shall furnish to the Claimant,
within the time limit applicable under (1) above, a written notice setting
forth in a manner calculated to be understood by the Claimant:
(A) The specific reason or reasons for the decision on review;
(B) Specific reference to the pertinent Plan provisions on which the
decision on review is based;
(C) A statement that the Claimant is entitled to receive, upon request
and free of charge, reasonable access to, and copies of, all
documents, records, and other information relevant to the
Claimant's Claim; and
(D) A statement describing any voluntary appeal procedures that may
be offered by the Plan and the Claimant's right to obtain the
information about such procedures.
ARTICLE XIV — SIGNATURES
This Plan document is signed on
PLAN ADMINISTRATOR:
By:
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Resolution #17334 December 7, 2017
Moved by KowaII supported by Jackson the resolutions (with fiscal notes attached) on the amended
Consent Agenda be adopted (with accompanying reports being accepted).
AYES: Dwyer, Fleming, Gershenson, Gingell, Hoffman, Jackson, Kowaii, Long, McGillivray,
Middleton, Quarles, Tietz, Weipert, Woodward, Zack, Berman, Crawford. (17)
NAYS: None. (0)
A sufficient majority having voted in favor, the resolutions (with fiscal notes attached) on the amended
Consent Agenda were adopted (with accompanying reports being accepted).
7047/
GERALD D. PDISSON
CHIEF DEPUTY COUNTY EXECUTIVE
ACTING PURSUANT TO MCL 45.559A(7)
STATE OF MICHIGAN)
COUNTY OF OAKLAND) ,
I, Lisa Brown, Clerk of the County of Oakland, do hereby certify that the foregoing resolution is a true and
accurate copy of a resolution adopted by the Oakland County Board of Commissioners on December 7,
2017, with the original record thereof now remaining in my office.
In Testimony Whereof, I have hereunto set my hand and affixed the seal of the County of Oakland at
Pontiac, Michigan this 7th day of December, 2017.
Lisa Brown, Oakland County