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HomeMy WebLinkAboutres1985-0101 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 t DATE 2 -7 -85 INTRODUCED BY Becker PROPOSED BY Count Executive RESOLUTION NO. 85 -10 A RESOLUTION AMENDING THE DEFERRED COMPENSATION PLAN FOR WHATCOM COUNTY EMPLOYEES WHEREAS, the WHATCOM COUNTY COUNCIL has adopted a Deferred Compensation Plan for County Employees, and WHEREAS, the Washington State Auditor's Office has indicated that a Determination Letter indicating the Plan qualifies under Section 457 of the Internal Revenue Code should be obtained from the Internal Revenue Service, (IRS) and WHEREAS, the Plan has been reviewed by the IRS and several changes have been recommended prior to final approval, which are: 1. Section 3.01(e) is changed to conform to the IRS Code require- ments on how funds are automatically transferred from another deferred compensation plan to this Plan. 2. Section 4.07 is changed to establish maximum deferral limits should there be any employer contribution. 3. Paragraph 2.19 is added defining "Deferred Retirement Date ". 4. Section 5.01(d) is changed to add the latest date that payments can commence under the Plan. 5. Section 5.01(b) is changed to conform with Section 1- 457- 2(0(1) of the IRS Regulations regarding automatic transfers if an employee changes employers. 6. A condition in Section 5.01(b) that a former participant has become a participant in another plan in order to be eligilbe for automatic transfer is dropped. 7. "independent contractor" is defined in paragraph 2.20, and is added to the definition of "participant" in Section 2.11. 8. The reference to a "peripheral employee" in Section 4.02 is changed to "independent contractor ". 9. Section 5.01(e) is changed to make lump sum payment within sixty (60) days mandatory to a participant who terminates employment. 10. The reference to "stated preference as provided in Article 4 ." is changed to "stated preference as provided in Article 5 . " A statement is also added limiting the period accumulations may be frozen to the "maximum Deferred Retirement Date ". 11. Section 5.02 is changed to conform to the definition of unforeseeable emergency. 12. The section of 6.08 that provided for a setoff of unpaid debt owed the County is dropped, and Draft 1, 1 -24 -85 4(RESDEFCP5) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 I� WHEREAS, the above changes have been made in the text of the Plan, attached hereto as Appendix I, NOW, THEREFORE, BE IT RESOLVED, That the Council does hereby authorize and approve the changes incorporated into the Deferred Compensation Plan for Whatcom County attached hereto as Appendix I. PASSED THIS 7th day of February 1985, WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON William P. Roehl, Chairperson APPROVED AS TO FORM: ATTEST: ':— C Vl Depu ros uting Attorney Clerk of the ouncil Draft 1, 1 -24 -85 4(RESDEFCP6) APPENDIX I DEFERRED COMPENSATION PLAN ARTICLE I General 1.01 Name. The name of this Plan shall be the Whatcom County Deferred Compensation Plan, which is hereby established and adopted. It may be, and sometimes is, referred to as the "Plan" or the "Deferred Compensation Plan ". 1.02 Purpose. The purpose of this Plan is to extend to Employees of the Employer certain benefits which ordinarily accrue from par- ticipation in a Deferred Compensation Plan. The Employer does not and cannot represent or guarantee that any particular federal or state income, payroll, or other tax consequence will occur by reason of an Employee's participation in this Plan. The Employee wishing to participate in the Plan should consult with his own attorney or other representative regarding all tax or other con- sequences of participation in this Plan. ARTICLE II Definitions 2.01 "Administrator" means the Employer or its duly authorized designee for that .purpose who shall govern the operation of the Plan. 2.02 "Advisory Committee" shall mean a committee consisting of the Whatcom County Auditor, the County Personnel Director and one other member at large appointed by the County Executive. The at large member's term shall be for four years from the date of appointment.The committee shall pick its own Chairperson. The committee shall administer the Plan according to the guidelines outlined in the Plan. 2.03 "Annuity Contracts" referred to in this Plan means any annuity contracts qualified for sale in Washington State and approved by Whatcom County. Notwithstanding the above definition, annuity contracts actually used in conjunction with the plan can be altered,.changed, or substituted for, from time to time by action of the Employer and such altered, amended, changed, or substituted contracts or contract thereafter may be used in the Plan.. 4(DEFCOMPLI) 2.04 "Beneficiary" means any person designated by the Participant to receive a pension, annuity, death benefit, or other benefit under the provisions of this Deferred Compensation Plan. 2.05 "County" means Whatcom County. 2.06 "Compensation" means all wages or salaries to be paid to an employee for services rendered, without deduction for any portion thereof deferred under the provisions of this Plan or for any amounts contributed to a tax deferred annuity plan pursuant to I.R.C. Section 403 (b). 2.07 "Deferred Compensation" means that portion of an Employee's Compensation which said Employee has elected to defer in accordance with the provisions of this Deferred Compensation Plan. 2.08 "Employee" means any full -time permanent employee, permanent part -time employee, or any elected official of the Employer. 2.09 "Employer" means Whatcom County government. 2.10 " Normal Retirement Date" means the last day of the month in which a Participant retires pursuant to the normal retirement practices of the Employer..(Such age may be no.later than age 701 and no earlier than the earliest age at which a Participant has the right to retire under the Employer's basic pension plan without consent of the Employer, and to receive immediate retire- ment benefits.) 2.11 "Participant" means any employee or independent contractor who voluntarily elects to participate in this Deferred Compensation Plan by filing a Participation Agreement with the Employer. 2.12 "Participation Account" means the book account to which there is credited the Participant's deferred compensation, together with any interest, dividends, gains, losses, or the like thereon. 2.13 "Participation Agreement" means the contract by which the Participant and the Employer agree that a portion of the Employee's compensation will be deferred pursuant to the Plan. 2.14 "Plan Year" means the calendar year in which the Plan becomes effective, and each succeeding year during the existence of this Plan. 4(DEFCOMPL2 1 -18 -85 2.15. "Termination of Employment" means in the case'of an Employee, separation from service. 2.16. "Unforseeable Emergency" means severe financial hardship to .the Participant resulting from a sudden and unexpected illness or accident of the Participant or of a dependent (as defined in Internal Revenue Code Section 152(a)) of the Participant, loss of the Participant's property due to casualty or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant. Unforseeable Emergencies do not include any hardships which have not occurred or which are or may be relieved (A) by reimbursement for compen- sation by insurance or otherwise; (B) by liquidation of the Participant's assets, to the extent the liquidation of such assets would not itself cause severe financial hardship; or (C) by cessa- tion of deferrals under the Plan. 2.17. "Eligible State Deferred Compensation Plan" has the meaning given it by the Internal Revenue Code Section 457 and the regula- tions thereunder. 2.18. "Includible Compensation" means the remuneration for services performed for the Employer which is currently includible in gross income. 2.19. "Deferred Retirement Date" means the date at which the Participant retires if later than the Normal Retirement Date, but in no.case shall the Deferred Retirement Date be later than age 70J and.no earlier than the earliest age at which a Participant has the right to retire under the Employer's basic pension plan without consent of the Employer, and to receive immediate retire- ment benefits.) 2.20 "Independent Contractor" means an employee of a county taxing district whose payroll is issued through the County's payroll system. ARTICLE III Operation of Plan 3.01 Participation. Any Employee may elect to become a Participant of the Plan and to defer payment of part of his or her Compensation by executing a written Participation Agreement and filing it in the manner set forth in this Article. The dollar amount deferred must be at least thirty dollars ($30.00) per month or such larger amount as may be designated by the Employer from time to time. a. The maximum amount that may be deferred under the Plan for the taxable year of a Participant shall not exceed the lesser of (a) $7,500, or (b) 33 -1/3 percent of the participant's includible com- pensation (typically twenty -five percent (25 %) of the Participant's gross compensation). 4(DEFCOMPL3) 1 -18 -85 b:.' Provided, however, that one or more of a Participant's last three full taxable years ending prior to a Participant's Normal Retirement Date as defined in 2.11, the maximum amount that may be deferred under the Plan shall be the lesser of (1) $15,000 or (2) (2) the sum of (i) the limitation in (a.) above for the taxable year; and (ii) the limitation under (a) above for any prior taxable year or years which began after December 31, 1978, and in which the Participant was eligible to participate in the Plan less the amount of compensation deferred under the Plan for any such taxable year or years. A Participant may only utilize this sub- section (b) once, whether under this Plan or any other eligible State Deferred Compensation Plan. c. For any individuals who are Participants in more than one plan, the maximum amount of compensation deferred for all plans during any taxable year shall not exceed $7,500 as modified by the adjustment provided under Subsection (b). of this section. d. For any individuals who are Participants in an IRC Section 403 (b) Plan, the amounts excluded in any taxable year under such plans shall be treated as amounts deferred for purposes of Subsections (a),(b), and (c) of this section and shall be treated as amounts excluded under IRC Section 403 (b)(2)(A)(ii). e. In addition to a Participant's election to participate pursuant to the preceding.paragraph, a Participant may transfer to this Plan amounts previously deferred under another Eligible State Deferred Compensation Plan maintained by an Employer located in the same state as the Employer maintaining this Plan. Only amounts aytomatically transferred under section 457- 2(k)(3) of the regulations shall be treated as if they had been originally deferred under the Plan. All other transfers to the Plan must be administered in accor- dance with any previously made irrevocable election. 3.02 Deferral of Compensation: Employer and Participant mutually acknowledge that the Compensation of each Participant is as established by contract or annual salary resolutions or ordinances of the Employer and that said Compensation includes the dollar amount of funds deferred under the terms of this Plan, or set aside under any 403(b) tax deffered annuity plan. Participant Compen- sation shall be paid monthly or as otherwise provided, except that during each employment year in which the Participant maintains an account in the Plan, that portion of said Compensation which is specified by the Participant in the Participation Agreement shall be deferred and paid in accordance with the provisions of this Plan. 3.03 Investment Accounts: The Employer shall cause to be established for each participant an Investment Account to provide a convenient method of measuring the Employer obligations to the Participant under the Plan. The Employer shall cause to have cre- dited to each account amounts equal to the compensation deferred by the participant under the Plan. The assets of the account shall be invested in Annuity contracts or other investments as the law may allow. The Employee's statement of investment preference shall only require the Employer to use such preference as an index for determining the benefits to be paid pursuant to Article 4. The Employer shall be under no obligation to invest the deferred amount in the manner requested. 4(DEFCOMPL4) 1 -18 -85 3.04. Employer Responsibility: The Employer may, but is not required to, invest Deferred Compensation held pursuant to agreements between Participants and the Employer, in accordance with the requests made by each Participant at the time of enrollment or change in enrollment. The Employer retains the right to approve or disapprove requests for a specific investment pre- ference. Any investment action by the Employer, or approving of any investment preference, shall not be considered to be an endor- sement or guarantee of any investment preference, nor shall it be considered to attest to the financial soundness or the suitability of any investment preference for the purpose of meeting future obligations as provided in Article 4 of this Plan. Further, the Employer shall not be held responsible for any investment results, either gains or losses, from any investment preference used to meet future obligations under the Plan. 3.05. Ownership of Deferred Amounts: The Employer shall establish and maintain a fund, hereinafter called the "Investment Fund ", to pro- vide a convenient method of setting aside sufficient of its assets to meet its future obligations under this Plan. The Employer shall at all times be the legal and beneficial owner of all assets in the Investment Fund and neither the existence of the Plan nor of the Investment Fund shall be deemed to create a trust or limit use by the Employer of the funds therein for general Employer purposes. The obligations of the Employer to make payments pursuant to this Plan is contractual only, and no Participant or Beneficiary shall have a preferred claim or lien on or to the assets of this Investment Fund, but shall have only the right to receive the benefits payable under the Plan. Interests of a Participant who changes employment may, under certain prescribed conditions, be transferred to the eligible deferred compensation plan of a new employer. ARTICLE IV Administration and Accounti 4.01 Administration by Advisory Committee: This Plan shall be admi- nistered by an Advisory Committee which shall prescribe such forms and adopt rules and regulations as are necesssary to carry out the purposes of the Plan. The Advisory Committee may employ investment counsel to provide advice concerning categories of investment, investment guidelines and investment policy, provided, however, that the advice or recommendations of any such investment counsel shall not be binding on the Advisory Committee which shall make the final determination concerning investment categories, investment guideli- nes and policies. 4.02. Enrollment Periods: a. When the Plan is first made available, an Employee or independent contractor shall have sixty (60) days from the date participation in the Plan is offered to them to effect an election to participate. Such election shall be effective only for pay periods commencing in the month following the month in which a Participant makes the election to participate in the Plan. b. Any person who becomes an Employee after this Plan is first made available shall have the option, within sixty (60) days after becoming an employee, to effect an initial election to participate in the Plan. Such election shall only be effective for pay periods com- mencing in the month following the month in which an employee makes the election to participate in the Plan. 4(DEFCOMPL5) 1 -18 -85 4.05 Participation Accounts: A separate Participation Account shall be maintained for each Participant. Each Participation Account shall reflect the monies deferred, the invest- ment of the monies, and all consequences of the investment. For convenience, and to facilitate an orderly administration of the Plan, individual Participation Accounts for all Participants will be maintained by the Employer showing the Participant's name with all applicable debit and credit balances. The Participant's deferred account shall be credited each pay period with the amount deferred from the preceding pay period. A written report of the.status of the Participation Account shall be furnished to Participants at least annually. All interest, dividends, charges for premiums, capital gains, or market changes applicable to each Participation Account shall be credited or debited to the account as they occur. Credits to the Participant's Account shall be subject to the Participant's then effective investment preference. All reports to the participant shall be based on the net fair market value of the assets as of the reporting date as if the deferred amount had been invested according to' the investment preference,. 4.06 Administrative Costs: The Employer shall determine, in a manner deemed fair and equitable, the administrative costs associated with the withholding of Deferred Compensation amounts pursuant to this Plan or in making investments or otherwise administering or imple- menting this Plan. The Employer may withhold or collect, or have withheld or collected, such costs, in such manner as the Employer deems equitable either (1) from the compensation deferred,pursuant to the.Plan, the income produced from the compensation deferred pur- suant to the Plan, the-income produced from any investment, whether or not augmented; or (2) from the organization receiving such investment where required by law to collect therefrom or, if not so required, where mutually satisfactory to such organization and the Administrator. The Administrator may remit or direct the remission of appropriate amounts so withheld or collected to the Employer. Quarterly statements of accounts distributed to Participants shall specify any such amounts deducted by the Employer, or by any organi- zation contracting with the employer in connection with this Plan, from Deferred Compensation of such participants or.income derived therefrom. 4.07 Employer Participation: Notwithstanding any other provisions of the Plan, the Employer may make deposits into the Plan as compen- sation for services rendered by a participating Employee during an employment period in which the compensation would be earned. The Employer may make other additional deposits to the Plan as he may deem advisable. However, all amounts of compensation deposited by the employer into the account of a Participant are subject to the limita- tions on maximum deferral stated in section 3.01 of the Plan. 4(DEFCOMPL7) 1 -18 -85 ARTICLE V Ranafitc 5.01 Benefits Generally: The Participant is entitled to have paid to him the benefits created by his participating in this Plan, in accordance with.the provisions of this Article. The benefits. payable to the Participant will be the equivalent of the total benefits that would have been created had the deferred amounts been invested in the Annuity Contract(s) as specified by the Participant from time to time taking into consideration losses and gains where applicable and any deductions authorized in Section 4.06 above. Amounts paid to a Participant shall be reported on appropriate tax reporting forms to a Participant as wages subject to withholding for federal income taxes. In the event of death of a Participant prior to the commencement of benefits as called for under the Plan, the named Beneficiary of Participant's Account shall have the right to designate that payments to such Beneficiary shall be in accordance with one of the available options provided under the Plan. Such selection must be made within thirty (30) days prior to the time any payments commence. a. Retirement: Upon the Participant's reaching the Normal Retirement Date or the Deferred Retirement Date, he or she may receive the benefits provided under this Plan. Such benefits shall be paid in accordance with the Payment Options 1 through 7 as selected by the Participant pursuant to Subsection (f) of this sesction. Any credits remaining in the deferred account of 'a Participant receiving benefits under this paragraph who dies, shall be paid in accordance with Subsection( c) of this section. b. Termination of Employment: If the Participant incurs a Termination of Employment (other than for retirement), benefits shall be paid in accordance with Payment Options 1 through 7 as selected by the Participant pursuant to Subsection (f) of this section. If a Participant separates from service in order to accept employment with another entity maintaining a plan within the same State, payout will not commence upon separation from ser- vice, regardless of any other provision of the plan, and amounts previously deferred will automatically be transferred. 4(DEFCOMPL8) 1 -18 -85 c. Death: Benefits otherwise payable under this Plan will be paid to the Participant's Beneficiary as provided in Payment Options l through 7 below, whichever is applicable. Provided, however, that in the case of benefits payable to a Beneficiary, other than the spouse of the Participant, under Option (2) or (4) or 5.01(f) for a period which exceeds fifteen years, the entire amount payable shall be paid out over fifteen years. (1) Before benefits are paid for retirement, disability or termination of service. If the Participant dies while employed with the Employer and before the payment of retirement or Termination of Service benefits is made to them under this Plan, the benefits otherwise payable under this Plan shall be paid to the designated Beneficiary pursuant to Payment Options 1 through 7 as selected by the Participant pursuant to Subsection (f) of this section. (2) After benefits are being paid for retirement or ter- mination of service. If the Participant dies while benefits are being paid to them under this Plan pursuant to Payment Option 2,4, or 6 and before such benefits have been exhausted, then the remaining benefits payable shall be paid to the Participant's designated Beneficiary in accordance with Subsection (3) of this section. (3) Designated Beneficiary: The Participant has the right to name and file with the Employer, a written Beneficiary or Change of Beneficiary form, designating the person or persons who shall receive the bene- fits payable under this Plan in the event of the Participant's death. The form for this purpose shall be provided by the Employer. It is not binding on the Employer until it is signed, filed with the Employer by the Participant, and accepted by the Employer. If the Participant dies without having a Beneficiary form on file, the Payments shall be made to the properly appointed fiduciary of the Participant's probate estate. However, if a fiduciary has not been appointed and qualified within one hundred twenty (120) days after the death, the payment may be made, first, to a surviving spouse, second, to a surviving child or children, and third, to a surviving parent or parents. The Participant accepts and acknowledges that he has the burden for executing and filing, with the Employer, a proper Beneficiary designation form. d. Commencement of payment: The.payment of benefits to the. Participant shall begin not later than sixty (60) days after the close of the plan year in which the participant or former par - ticipant attains (or whould have attained) normal retirement age, or, sixty days after the close of the plan year in which the par- ticipant separates from service with the County. Payment of bene- fits to an independent contractor on account of .Termination of Employment, for other than retirement, shall not commence until the first day of the month next following a twelve -month period after Termination of Employment and then only if the Participant has not performed services for the Employer as an Employee or Independent Contractor within such period. e. Short term or lump -sum settlement: Notwithstanding anything in this Article to the contrary, except Section 5.01(e), if at any time the total amounts held under this Plan in the account main- tained for the Participant or his Beneficiary, total to a credit of $5,000 or less and for any reason the Participant has incurred a termination of employment, the Employer shall, within sixty (60) days from the date of termination, deviate from the restrictions imposed by the paragraphs in this Article and effect a lump -sum settlement. f. Options: The following options are available for selection by Participant. However, any option selected must be.such that bene- fits payable to a Participant will exceed one -half of the-maximum that could have been payable to the Participant if no provisions were made for payment to a Beneficiary. If, at the time of the election to participate in the Plan, the Participant fails to state a preference by selecting a payment option for any event which causes payment of benefits to begin, the Participant shall be deemed to have elected to have the benefits payable upon occurrence of such event as if he had elected payments for a spe- cified period of ten (10) years as provided for in Option 2. (1) Payment Options: As provided in Subsections (a) through (d) of this section, Participant may select: Option 1. Lump -sum payment. The total benefits payable in one cash payment. Option 2. Payments for a Specified Period. Amounts payable in equal installments over a period of three (3) to thirty (30) years. Option 3. Life Annuity. An annuity payable during the lifetime of the Participant or their Beneficiary if this option is selected over subsection (d) of this section. Option 4. Life Annuity With Period Certain Guaranteed. An annuity payable during the lifetime of the Participant, or their Beneficiary, if this option is selected under Subsection (d) of this section, with the guarantee that if at his death payments have not been made for the guaranteed period as elected, payments will continue to the Beneficiary,. The guaranteed period to be elected must be either ten (10), fif- teen (15), or twenty (20) years. Option 5. Joint and Survivor Annuity. An annuity payment during the lifetime of the Participant and a secondary payee named by the Participant. Option 6. Designated Amount. A method of account liquidation of a specific dollar amount monthly until account funds are exhausted. 4(DEFCOMPLI0) 1 -18 -85 Option 7. Freeze. Notwithstanding any provisions of this Article, a terminating Employee may elect to leave the funds, assets, and accumulations in their Participation Account until such time as they would otherwise receive the benefits in accordance with.their stated preference as provided in Article 5 of this Plan. Provided that in no case shall funds, assets, and accumulations be frozen for a period in excess of the maximum Deferred Retirement Date. (2) Method of Payment Options. If the Participant has elected a payment option requiring installment payments, the Participant may also elect to have such payment made either monthly, quarterly, semi - annually or annually. 5.02 Severe Financial Hardship. Notwithstanding any other provision herein, a Participant may apply to the Advisory Committee to withdraw funds, in whole or in part, from the Plan prior to retirement or any other termination of his employment with the Employer because of severe financial hardship as defined in Article 2 of this Plan. Emergency withdrawal of amounts because of an unforeseeable emergency will only be permitted to the extent reasonably needed to satisfy the emergency need. Any remaining benefits shall be paid upon retirement, termination of employment, disability, or death in accordance with Section 5.01, above. The decision of the Advisory Committee concerning severe financial hardship shall be final as to all Participants. ARTICLE VI Miscellaneous 6.01 Leave of Absence: If a Participant is on an approved leave of absence from the Employer with compensation, participation in this Plan will continue. If a Participant is on an approved leave of absence without compensation and such leave of absence continues for more than six (6) months, said Participants will be deemed to have terminated participation in the Plan as of the end of such six (6) month period. Such termination of participation will not cause distribution of benefits. Upon return from such leave of absence, the Participant's full compensation on a non - deferred basis will be thereupon restored. Such employee may again become a Participant by meeting the requirements for eligibility as herein provided. 4(DEFCOMPLII) 1 -18 -85 6.02 Retirement System Integration: Benefits payable by, and deduction for Employee contributions to any retirement system of the Employer including Social Security, shall be computed without reference to amounts deferred pursuant to this Deferred Compensation Plan and shall instead be based upon the gross compensation the Participant would receive if he had not elected to participate in this Plan and to defer compensation. 6.03 Amendment: The Plan may be modified, amended or terminated in whole or in part (including retroactive amendments ) by the Advisory Committee at any time. No amendment or termination of the Plan shall reduce or impair the rights of any Participant or his Beneficiary which have already accrued. Upon termination of the Plan, the Employer shall distribute all amounts credited to each Participation Account in accordance with the Participant's payment option selected pursuant to Section 5.01. All Participants shall be treated in the same manner. 6.04. Creditors: A Participant may not assign, transfer, sell, hypothecate, or otherwise dispose of any or all of their investment account or any right which they may have under the Plan, and any attempt to do so shall be void. 6.05. Employment: Participation in the Plan shall not be construed as giving any Participant any right to continue their employment with the Employer. 6.06 Successors and Assigns: The Plan shall be binding upon and shall insure to the benefit of the Employer, its successors and assignes, all participants and Beneficiaries and their heirs and legal representative. 6.07 Written Notice: Any notice or other communication required or permitted under the Plan shall be in writing, and if directed to the Employer shall be sent to the designated office of the Employer, and, if directed to Participant or to a Beneficiary, shall be sent to such Participant or Beneficiary at either their last known address as it appears on the Employer's record, or to their work site, at the Employer's option. 6.08. Total Agreement: This Plan and the Participation Agreement, and any subsequently adopted amendment thereof, shall constitute the total agreement or contract between the Employer and the Participant regarding the Plan. No oral statement regarding the Plan may be relied upon by the Participant. 4(DEFCOMPLI2) 1 -18 -85 6.10. Gender: As used herein, the masculine shall include the neuter and the feminine where appropriate. 6.11. Controling Law: This Plan is created and shall be interpreted under the laws of the State of Washington as the same shall be at the time any dispute or issue is raised. IN WITNESS WHEREOF, the Employer has adopted this Plan document this 7th day of February , 1985. WHATCOM COUNTY, WASHINGTON D'-'L V C"' --� a'�— County ecut e ATTEST: C r Clerk of t e Coun&jl APRPROVED AS TO FORM Deputy Prosecuting Attorney 2.16. "Unf.orseeable Emergency" means severe financial hardship to the Participant resulting from a sudden and unexpected illness or accident of the Participant or of a dependent (as defined in Internal Revenue Code Section 152(a)) of the Participant, loss of the Participant's property due to casualty or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant. Unforseeable Emergencies do not include any hardships which have not occurred or which are or may be relieved (A) by reimbursement for compen- sation by insurance or otherwise) (B) by liquidation of the Participant's assets, to the extent the liquidation of such assets would not itself cause severe financial hardships or (C) by cessa- tion of deferrals under the Plan. 2.17. "Eli able State Deferred Compensation Plan" has the meaning given TU by the Internal Revenue Code Section 457 and the regula- tions thereunder. 2.18. "Includible Compensation" means the remuneration for services performed for the Employer which is currently includible in gross income. 2.19. "Retirement" means the first date upon which both of the follow n- g shall have occurred with respect to a Participant: Termination of employment and attainment of Normal Retirement Age. 2.20 "Independent Contractor" means an employee of a county taxing district whose payroll is issued through the County's payroll system. ARTICLE III operation of Plan 3.01 Participation. Any Employee may elect to become a Participant of the Plan and to defer payment of part of his or her Compensation by executing a written Participation Agreement and filing it in the manner set forth in this Article. The dollar amount deferred must be at least thirty dollars ($30.00) per month or such larger amount as may be designated by the Employer from time to time. a. The maximum amount that may be deferred under the Plan for the taxable year of a Participant shall not exceed the lesser of (a) $7,500, or (b) 33 -1/3 percent of the participant's includible com- pensation (typically twenty -five percent (259) of the Participant's gross compensation). b. Provided, however, that one or more of a Participant's last three full taxable years ending prior to a Participant's Normal Retirement Age as defined in 2.10, the maximum amount that may be deferred under the Plan shall be the lesser of (1) $15,000 or (2) (2) the sum of (i) the limitation in (a.) above for the taxable year; and (ii) the limitation under (a) above for any prior taxable year or years which began after December 31, 1978, and in which the Participant was eligible to participate in the Plan lose 4 (DEF'COMPL3 ) 6 -13 -85 the amount of compensation deferred under the Plan for any such taxable year or years. A Participant may only utilize this sub- section (b) once, whether under this Plan or any other eligible State Deferred Compensation Plan. c. For any individuals who are Participants in more than one plan, the maximum amount of compensation deferred for all plans during any taxable year shall not exceed $7,500 as modified by the adjustment provided under subsection (b) of this section. d. For any individuals who are Participants in an IRC Section 403 (b) Plan, the amounts excluded in any taxable year under such plans shall be treated as amounts deferred for purposes of subsections (a),(b), and (c) of this section and shall be treated as amounts excluded under IRC Section 403 (b)(2)(A)(ii). e. The Plan will accept transfers of amounts previously deferred under another Eligible State Deferred Compensation Plan maintained by an Employer located in the same state as the Employer main- taining this Plan. 3.02 Deferral of Compensation: Employer and Participant mutually acknowledge that the Compensation of each Participant is as established by contract or annual salary resolutions or ordinances of the Employer and that said Compensation includes the dollar amount of funds deferred under the terms of this Plan, or set aside under any 403(b) tax deferred annuity plan. Participant Compen- sation shall be paid monthly or as otherwise provided, except that during each employment year in which the Participant maintains an account in the Plan, that portion of said Compensati'dn which is specified by the Participant in the Participation Agreement shall be deferred and paid in accordance with the provisions 'of this Plan. 3.03 Inves_t_ment Accounts: The Employer shall cause to be established for each participant an Investment Account to provide a convenient method of measuring the Employer obligations to the Participant under the Plan. The Employer shall cause to have cre- dited to each account amounts equal to the compensation deferred by the participant under the Plan. The assets of the account shall be invested in Annuity contracts or other investments as the law may allow. The Employee's statement of investment preference shall only require the Employer to use such preference as an index for determining the benefits to be paid pursuant to Article 4. The Employer shall be under no obligation to invest the deferred amount in the manner requested. 3.04. Employer Responsibility. The Employer may, but is not required to, invest Deferred Compensation held pursuant to agreements between Participants and the Employer, in accordance with the requests made by each Participant at the time of enrollment or change in enrollment. The Employer retains the right to approve or disapprove requests for a specific investment pre- ference. Any investment action by the Employer, or approving of any investment preference, shall not be considered-to be an endor- sement or guarantee of any investment preference, nor shall it be considered to attest to the financial soundness or the suitability 4(DEFCOMPL4) 6 -13-85 of any investment preference for the purpose of meeting future obligations as provided in Article 5 of this Plan. Further, the Employer shall not be held responsible for any investment results, either gains or losses, from any investment preference used to meet future obligations under the Plan. 3.05. Ownership of Deferred Amounts: All amounts deferred under the Plan, all property and rights to property purchased with the amounts, and all income attributable to the amounts, property or rights to property, remain solely the property and rights of the Employer subject to the claims of the general creditors of the Employer only. The Employer shall establish and maintain a fund, hereinafter called the "Investment Fund ", to provide a convenient method of setting aside sufficient of its assets to meet its future obligations under this Plan. The Employer shall at all times be the legal and beneficial owner of all asse�p in the Investment Fund and neither the existence of the Plan nor of the Investment Fund shall be deemed to create a trust or limit use by the Employer of the funds therein for general Employer purposes. The obligations of the Employer to make payments pursuant to this Plan is contractual only, and no Participant or Beneficiary shall have a preferred claim or lien on or to the assets of this Investment Fund, but shall have only the right to receive the benefits payable under the Plan. Interests of a Participant who changes employment will, under the conditions prescribed in sec- tion 5.01(b), be transferred to the Eligible State Deferred Compensation Plan maintained by an Employer located in the same state as the Employer maintaining this Plan. ARTICLE IV Administration and Accounting 4.01 Administration by Advisory Committee: This Plan shall be admi- nistered by an Advisory Committee which shall prescribe such forms and adopt rules and regulations as are necessary to carry out the purposes of the Plan. The Advisory Committee may employ investment counsel to provide advice concerning categories of investment, investment guidelines and investment policy, provided, however, that the advice or recommendations of any such investment counsel shall not be binding on the Advisory Committee which shall make the final determination concerning investment categories, investment guideli- nes and policies. 4.02. Enrollment Periods: a. When the Plan is first made available, an Employee or independent contractor shall have sixty (60) days from the date par- ticipation in the Plan is offered to them to effect an election to participate. Such election shall be effective only for pay periods commencing in the month following the month in which a Participant makes the election to participate in the Plan. b. Any person who becomes an Employee after this'Plan is first made available shall have the option, within sixty (60) days after becoming an employee, to effect an initial election to participate in the Plan. Such election shall only be effective for pay periods com- mencing in the month following the month in which an employee makes the election to participate in the Plan. 4(DEFCOMPL5) 6 -13 -85 c. Any Employee who does not file an initial election, pursuant to (a) or (b) above, shall have the right to elect participation during enrollment periods for the Plan which will be held during the months of March and June and September and December. Such election will be for pay periods in the first month after the date on which his or her Participation Agreement is filed with the Employer. 4.03. Partici ation Agreement: The Employer shall establish a form of Participation Agreement and other enrollment forms which shall contain, among other provisions, the following: (a) A provision whereby the Participant specifies the portion of his or her compensation which is to be deferred. (b) A provision whereby the Participant shall indicate his or her investment preference. (c) A provision whereby the Participant shall designate a Beneficiary or Beneficiaries, including one or more contingent Beneficiaries, to receive any benefits which may be payable under this Plan on death of the Participant. (d) An acknowledgement by the Participant that his or her salary, wage, or other compensation is as set forth in any salary ordinance, resolution, classification plan, or collective bargaining agreement or otherwise, without deductions for amounts deferred under the provisions of this Plan. (e) A provision whereby the Participant together with his or her heirs, successors and assigns holds harmless the Employer and the Deferred Compensation Advisory Committee from any liability hereunder for all acts performed in good faith, including acts relating to the investment of deferred amounts and /or the Employee's investment preference hereunder. 4.04. Amendment of Participation Agreement: The Participant may revoke h s or her election to participate and may change the amount of Compensation to be deferred, or their investment preference, by signing and filing with the Employer a written revocation or amend- ment, on a form approved by the Plan Administrator. A Participant's revocation of their election to participate may be made at any time. A Participant's amendment to change the amount of Compensation to be deferred, or their investment preference, can be made only during the December and June enrollment periods. Any such revocation or amendment shall be effective with the first pay period of the subsquent month. A Participant may amend their statement of invest- ment preference by filing with the Employer a signed amendment on a form approved by the Plan Administrator. If a Participant requests that amounts then held in a Participant's Account also be invested in accordance with an amended investment preference, the Employer may, if it deems it in the best interest of the Participant to do so, approve such change. Any such changes shall be governed by the provi- sions of Section 3.03 hereof. All contracts and other evidence of the investment of assets under this Plan shall be registered in the name of the Employer which shall be the owner- beneficiary thereof. 4(DEPCOMPL6) 6-13 -85 4.05 Participation Accounts: A separate Participation Account shall be maintained for each Participant. Each Participation Account shall reflect the monies deferred, the invest- ment of the monies, and all consequences of the investment. For convenience, and to facilitate an orderly administration of the Plan, individual Participation Accounts for all Participants will be maintained by the Employer showing the Participant's name with all applicable debit and credit balances. The Participant's deferred account shall be credited each pay period with the amount deferred from the preceding pay period. A written report of the status of the Participation Account shall be furnished to Participants at least annually. All interest, dividends, charges for premiums,,capital gains, or market changes applicable to each Participation Account shall be credited or debited to the account as they occur. Credits to the Participant's Account shall be subject to the Participant's then effective investment preference. All reports to the participant shall be based on the net fair market value of the assets as of the reporting date as if the deferred amount had been invested according to the investment preference. 4.06 Administrative Costs: The Employer shall determine, in a manner deemed fair and equ table, the administrative costs associated with the withholding of Deferred Compensation amounts pursuant to this Plan or in making investments or otherwise administering or imple- menting this Plan. The Employer may withhold or collect, or have withheld or collected, such costs, in such manner as the Employer deems equitable either (1) from the compensation deferred pursuant to the Plan, the income produced from the compensation deferred pur- suant to the Plan, the income produced from any investment, whether or not augmented; or (2) from the organization receiving such investment where required by law to collect therefrom or, if not so required, where mutually satisfactory to such organization and the Administrator. The Administrator may remit or direct the remission of appropriate amounts so withheld or collected to the Employer. Quarterly statements of accounts distributed to Participants shall specify any such amounts deducted by the Employer, or by any organi- zation contracting with the employer in connection with this Plan, from Deferred Compensation of such participants or income derived therefrom. 4.07 Employer Participation: Notwithstanding any other provisions of the Plan, the Employer may make deposits into the Plan as compen- sation for services rendered by a participating Employee during an employment period in which the compensation would be earned. The Employer may make other additional deposits to the Plan as he may deem advisable. However, all amounts of compensation deposited by the employer into the account of a Participant are subject to the limita- tions on maximum deferral stated in section 3.01 of the Plan. ARTICLE V Benefits 5.01 Benefits Generally: The Participant is entitled to.have paid to h m the benefits created by his participating in this Plan, in accordance with the provisions of this Article. The benefits payable to the Participant will be the equivalent of the total 4(DEFCOMPL7) 6 -13 -85 benefits that would have been created had the deferred amounts been invested in the Annuity Contract(s) as specified by the Participant from time to time taking into consideration losses and gains where applicable and any deductions authorized in Section 4.06 above. Amounts paid to a Participant shall be reported on appropriate tax reporting forms to a Participant as wages subject to withholding for federal income taxes. In the event of,death of a Participant prior to the commencement of benefits as called for under the Plan, the named Beneficiary of Participant's Account shall have the right to designate that payments'to such Beneficiary shall be in accordance with one of the available options provided under the Plan. Such selection must be made within thirty (30) days prior to the time any payments commence. a. Retirement: Upon the Participant's reaching retirement, he or she will receive the benefits provided under this Plan. Such bene- fits shall be paid in accordance with the Payment Options 1 through 6 as selected by the Participant pursuant to subsection (f) of this section, and shall commence 60 days after retirement unless the Participant elects to defer commencement of benefits under section 5.01(f)(2). b. Termination of Employment: If the Participant incurs a Termination of Employment (other than for retirement), benefits shall be paid in accordance with Payment Options 1 through 6 as selected by the Participant pursuant to subsection (f) of this section, and shall commence 60 days after termination of employment unless the participant elects to defer commencement of benefits under section 5.01(f)(2). If a Participant incurs a ter- mination of employment in order to accept employment with another entity maintaining an Eligible State Deferred Compensation Plan within the same state, payout will not commence upon termination of employment, regardless of any other provisions of the Plan, and amounts previously deferred will automatically be transferred, provided that (1) the employer sponsoring the other plan is located within the same state as the Employer maintaining this plan; and (2) such other plan provides for accepting such amounts. c. Death: Benefits otherwise payable under this Plan will be paid to the Participant's Beneficiary as provided in the Payment Option elected by the Participant and shall commence 60 days after the date of the Participant's death. Provided, however, that in the case of benefits payable to a Beneficiary, other than the spouse of the Participant,.the entire amount payable shall be paid out over fifteen years. In the case of benefits payable to a Beneficiary, if the Beneficiary is the Participant's surviving spouse, the entire amount payable shall be paid out over the life of the Beneficiary. (1) Designated Beneficiary: The Participant has the right to name and file with the Employer, a written Beneficiary or Change of Beneficiary form, designating the person or persons who shall receive the bene- fits payable under this Plan in the event of the Participant's death. The form for this purpose shall be provided by the Employer. It is not binding on the Employer until it is signed, filed with the Employer by the Participant, and accepted by the Employer. If the Participant dies without 4(DEFC014PL8) 6 -13 -85 having a Beneficiary form on file, the Payments shall be made to the properly appointed fuduciary of the Participant's probate estate 60 days after the appointment of the fiduciary. However, if a fiduciary has not been appointed and qualified within one hundred twenty (120) days after the death, the payment will be made, first, to a surviving spouse, second, to a surviving child or children, and third, to a surviving parent or parents. Such payment shall be made within the sixty (60) day period commencing one hundred twenty (120) days after the death. The Participant accepts and acknowledges that he has the burden for executing and filing, with the Employer, a proper Beneficiary designation form. d. Commencement of payment: Notwithstanding any other provision of this Plan, the payment of benefits to the Participant or Beneficiary shall begin no later than the later of sixty (60) days after the close of the plan year in which the Participant or former Participant attains (or would have attained) Normal Retire- ment Age or, sixty (60) days after the close of the plan year in which the Participant incurs a termination of employment with Employer. Payment of benefits to an independent contractor on account of Termination of Employment, for other than retirement, shall not commence until the first day of the month next following a twelve -month period after Termination of Employment and then only if the Participant has not performed services for the Employer as an Employee or Independent Contractor within such period. e. Short term or lump -sum settlement: Notwithstanding anything in this Art cle to the contrary, except Section 5.01(e), if at any time the total amounts held under this Plan in the account main- tained for the Participant or his Beneficiary, total to a credit of $5,000 or less and for any reason the Participant has incurred a termination of employment, the Employer shall, within sixty (60) days from the date of termination, deviate from the restrictions imposed by the paragraphs in this Article and effect a lump -sum settlement which shall be paid 60 days after termination ot` employment. f. _Options: The following options are available for selection by Participant. However, any option selected must be such that bene- fits payable to a Participant will exceed one -half of the maximum that could have been payable to the Participant if no provisions were made for payment to a Beneficiary. Any payment option elected may be changed by the Participant within sixty (60) days of retirement or termination of employment. (1) Pa ment Options: As provided in Subsections (a) through (d) of this section, Participant may selects " Option 1. Lump -sum payment. The total benefits payable in one cash payment. Option 2. Pa ments_ for a Specified Period. Amounts payable in equal Installments over a period of three (3) to thirty (30) years. 4(DEPCOMPL9) 6 -13 -85 Option 3. Life Annuity. An annuity payable during the lifetime of the Participant or their Beneficiary if this option is selected over subsection (d) of this section. Option 4. Life Annuity With Period Certain Guaranteed. An annuity payable during the lifetime of the Participant, or their Beneficiary, if this option is selected under Subsection (d) of this section, with the guarantee that if at his death payments have not been made for the guaranteed period as elected, payments will continue to the Beneficiary,-The guaranteed period to be elected must be either ten (10), fif- teen (15), or twenty (20) years. Option 5. Joint and Survivor Annuity. An annuity payment during the lifetime of the Participant and a secondary payee named by the Participant. Option _6. Designated Amount. A method of account liquidation of a specific dollar amount monthly until account funds are exhausted. (2) Freeze. Notwithstanding any provisions of this Article, except section 5.01(e), a Participant who incurs a termination of employment may elect, within 60 days after termination of employment, to leave the funds, assets and accumulations in his or her Participation Account until a specific date not later than the later of sixty (60) days after the close of the plan year in which the Participant attains Normal Retirement Age or sixty (60) days after the close of the plan year in which the Participant incurs a termination of employment. Amounts deferred under this section shall be paid in accor- dance with the payment option elected by the Participant under. section 5.01 (f)(1), which election must be made before the date payments commence as elected under this subsection (3) Method of Payment Options.' If the Participant has elected a payment option requiring installment payments, the Participant or Beneficiary may elect to have such payment made either monthly, quarterly, semi - annually or annually. Such election must be made before the date payment commence under the Plan. If no such election is made, payments shall be made monthly. 5.02 Severe Financial Hardshi . Notwithstanding any other provision herein, a Participant may apply to the Advisory Committee to withdraw funds, in whole or in part, from the Plan prior to retirement or any other termination of his employment with the Employer because of severe financial hardship as defined in Article 2 of this Plan. Emergency withdrawal of amounts because of an unforeseeable emergency will only be permitted to the extent reasonably needed to satisfy the emergency need. Any remaining benefits shall be paid upon retirement, termination of employment, disability, or death in accordance with Section 5.01, above. The decision of the Advisory Committee concerning severe.financial; hardship shall be final as to all Participants. 4(DEFCOMPLI0) 6 -13 -85 ARTICLE VI Miscellaneous 6.01 Leave of Absence: If a Participant -is on an approved leave of absence from the Employer with compensation, participation in this Plan will continue. If a Participant is on an approved leave of absence without compensation and such leave of absence continues for more than six (6) months, said Participants will be deemed to have terminated participation in the Plan as of the end of-such six (6) month period. Such termination of participation will not cause distribution of benefits. Upon return from such leave of absence, the Participant's full compensation on a non - deferred basis will be thereupon restored. Such employee may again become a Participant by meeting the requirements for eligibility as herein provided. 6.02 Retirement System Int_egr�rat_ion: Benefits payable by, and deduction for Employee contributions to any retirement system of the Employer including Social Security, shall be computed without reference to amounts deferred pursuant to this Deferred Compensation Plan and shall instead be based upon the gross compensation the Participant would receive if he had not elected to participate in this Plan and to defer compensation. 6.03 Amendment: The Plan may be modified, amended or terminated T_n whole or in part (including retroactive amendments ) by the Advisory Committee at any time. No amendment or termination of the Plan shall reduce or impair the rights of any Participant or his Beneficiary which have already accrued. Upon termination of the Plan, the Employer shall distribute all amounts credited to each Participation Account in accordance with the Participant's payment option selected pursuant to Section 5.01. All Participants shall be treated in the same manner. 6.04. Creditors: A Participant may not assign, transfer, sell, hypothecate, or otherwise dispose of any or all of their investment account or any right which they may have under the Plan, and any attempt to do so shall be void. 6.05. Employment: Participation in the Plan shall not be construed as giving any Participant any right to continue their employment with the Employer. 6.06 Successors and Assigns: The Plan shall be binding upon and shall Insure to the benefit of the Employer, its successors and assignes, all participants and Beneficiaries and their heirs and legal representative. 6.07 Written Notice: Any notice or other communication required or permitted under the Plan shall be in writing, and if directed to the Employer shall be sent to the designated office of the Employer, and, if directed to Participant or to a Beneficiary, shall be sent to such Participant or Beneficiary at either their last known address as it appears on the Employer's record, or to their work site, at the Employer's option. 4(DEPCOMPLII) 6 -13 -85 6.08. Total Agreement: This Plan and the Participation ,Agreement, and any subsequently adopted amendment thereof, shall constitute the total agreement or contract between the Employer and the Participant regarding the Plan. No oral statement regarding the Plan may be relied upon by the Participant. 6.10. Gender: As used herein, the masculine shall include the neuter and the feminine where appropriate. 6.11. Controlin Law: This Plan is created and shall-be nterpreted under the laws of the State of Washington as the same shall be at the time any dispute or issue is raised. IN WITNESS WHEREOF, the Employer has adopted this Plan document this day of IF 1985. WHATCOM COUNTY, WASHINGTON County Execut ve ATTEST: Clerk of the Council APPROVED AS TO FORM Deputy Prosecuting Attorney 4(DEFCOMPLI2) 1 -1885