102-296 Miscellaneous | Aurora City Code

Sec. 102-296. Miscellaneous.

(a) Right to dismiss—No contract of employment. The city may terminate the employment of any executive employee as freely and with the same effect as if this plan were not in existence. Participation in this plan shall not constitute an express or implied contract of employment between the city and any participant.

(b) Military service. A member who returns to employment with the city from qualified military service during the period within which reemployment rights are guaranteed by law will receive service credit with respect to the member's period of qualified military service (within the meaning of section 414(u)(1) of the code) in accordance with section 414(u) of the code and applicable regulations. Effective January 1, 2007, if a member dies while performing qualified military service (within the meaning of section 414(u)(1) of the code), the member shall be treated as having terminated employment with the city due to his death for purposes of any additional benefits (other than benefit accruals relating to the period of qualified military service) provided under the plan.

(1) All applications and claims for benefits shall be filed in writing with the plan administrator by the participant, his beneficiary, or the authorized representative of the claimant, by completing the procedures required by the plan administrator. The procedures shall be reasonable and may include the completion of forms and the submission of documents and additional information.

(2) The plan administrator shall review all applications and claims for benefits and shall decide whether to approve or deny the claim in whole or in part. If a claim is denied in whole or in part, the plan administrator shall furnish written notice of denial to the claimant within 90 days after the plan administrator receives the claim, unless special circumstances require an extension of time for processing the claim. If an extension is required, the plan administrator shall notify the claimant in writing before the end of the initial 90-day period. The extension shall not exceed an additional 90 days. The notice of denial shall be written in a manner calculated to be understood by the claimant and shall include the following:

a. Specific reasons for the denial;

b. Specific references to pertinent plan provisions;

c. A description of any additional material or information necessary for the claimant to perfect his claim and an explanation of why such information is necessary; and

d. Appropriate information as to the steps the claimant should take if he wishes to subject the denied claim for review.

(3) If the claimant wishes a review of the denied claim, he shall notify the plan administrator in writing within 60 days. The claimant or the claimant's representative may review pertinent documents and may submit issues or comments to the plan administrator in writing. The claimant or the claimant's representative may furnish the plan administrator with a written statement of his position and with written materials in support of his position.

(4) The plan administrator shall reexamine all facts related to the appeal and make a final determination as to whether the denial of benefits is justified under the circumstances. The plan administrator shall advise the participant (or beneficiary) of its decision within 60 days after its receipt of the written request for review unless special circumstances require additional time for review of the claim. If the plan administrator needs an extension of time to review the claim, it shall notify the claimant in writing before the end of the initial 60-day period. The extension shall not be longer than an additional 60 days. The plan administrator shall give the claimant written notice of its decision, written in a manner calculated to be understood by the claimant and shall include specific reasons for the decision as well as specific references to the pertinent plan provisions on which the decision is based. If the plan administrator does not make a decision within the time periods specified above, the claim shall be deemed denied.

(5) The plan administrator shall have full discretionary authority to consider claims filed under the plan and to determine eligibility, status and rights of all individuals under the plan and to construe any and all terms of the plan. The decisions of the plan administrator shall be final and binding on all persons.

(d) Source of benefits. Except as may be otherwise provided under the Code, all benefits payable under the plan shall be paid solely from the trust fund and the city assumes no liability or responsibility therefor.

(e) Irrevocability of contributions exclusive benefit. The city shall not have any right, title or interest in the contributions made by it to the trust fund, and no part of the trust fund shall revert to the City, except that after termination of the trust and satisfaction of all liabilities of the plan with respect to the participants and their beneficiaries, the city may receive any amount remaining in the trust fund, unless prohibited by applicable law. Subject to the foregoing, it is the intention of the city that it shall be impossible for any part of the trust ever to be used for or diverted to purposes other than for the exclusive benefit of its participants and their beneficiaries, and that this plan shall be construed to follow the spirit and intent of the Code.

(f) Forms of notices. Wherever provision is made in the plan for the filing of any notice, election or designation by a participant, the action of such participant shall be evidenced by the execution of such form as the plan administrator may prescribe for the purpose.

(1) Except as provided in (2) below, no participant or beneficiary shall have any right to assign, transfer, hypothecate, encumber or anticipate his interest in any benefits under this plan, nor shall such benefits be subject to any legal process to levy upon or attach the same for payment of any claim against any such participant or beneficiary.

(2) Subsection (1) shall not apply to assignments for child support purposes as provided for in sections 14-10-118(1) and 14-14-107, C.R.S. as they existed prior to July 1, 1996, income assignments for child support purposes pursuant to section 14-14-111.5, C.R.S., writs of garnishment that are the result of a judgment taken for arrearages for child support or for child support debt, payments made in compliance with a properly executed court order approving a written agreement entered into pursuant to section 14-10-113(6), C.R.S., and for any other statutory exception to the anti-alienation provisions of section 24-54-111, C.R.S. adopted after the effective date of this plan.

(3) The written agreement entered into pursuant to section 14-10-113(6), C.R.S., referred to in subsection (2) shall be submitted by the parties to the plan administrator within 90 days after entry of the decree and the permanent orders regarding property distribution in a proceeding for dissolution of marriage, legal separation, or declaration of invalidity of marriage. The written agreement shall meet the following requirements:

a. The agreement shall specify the full legal name of the retirement plan to which it applies.

b. The agreement shall specify the name, social security number and last known mailing address of the participant and of the alternate payee as well as the alternate payee's relationship to the participant. For the purpose of this subsection, "alternate payee" means a party to a dissolution of marriage, legal separation or declaration of invalidity action who is not the participant.

c. The agreement shall specify the distribution method to be applied to divide the participant's benefit under the plan. For this purpose, the parties may select any one of the following methods, provided such method is otherwise permissible under the terms of the plan: (1) a fixed monetary amount; (2) a fixed percentage of the payment to the participant; (3) the time-rule formula determined by dividing the number of months of service credit acquired under the plan during the marriage as set forth in the court's order by the number of months of service credit in the plan at the time of the participant's retirement as determined by the plan administrator, which quotient shall be multiplied by a percentage specified in the court's order, and the product thereof shall be further multiplied by the amount of the payment to the participant at the date of retirement; (4) a formula determined by dividing the number of months of service credit acquired under the plan during the marriage as set forth in the court's order by the number of months of service credit in the plan as of the date of the decree as determined by the plan administrator, regardless of when the participant is expected to retire, which quotient shall be multiplied by a percentage specified in the court's order, and the product thereof shall be further multiplied by the amount of the payment the participant would be entitled to receive as if the participant were to retire and receive an unreduced benefit on the date of the decree; or (5) any other method or formula mutually agreed upon by the parties that specifies a dollar amount or percentage payable to the alternate payee. The formula selected under this subsection may provide for benefit adjustments payable at the same time and in the same manner as any benefit adjustments applicable to the participant's distribution.

d. The agreement shall not provide for payments to the alternate payee or to the participant for which he or she would not otherwise be eligible if there were no dissolution of marriage, legal separation or declaration of invalidity action pending.

e. The agreement shall not require the plan to pay the alternate payee prior to the date payments commence to the participant or prior to the earlier of the participant attaining age 65 or the participant's actual retirement, or at such later date as the parties may otherwise agree in writing.

f. The agreement shall provide that the alternate payee's rights to payments terminate upon the involuntary termination of benefits payable to the participant or upon the death of the alternate payee, whichever occurs first.

g. The agreement shall provide that the manner of payment shall be in a form or type permissible under the plan. The agreement shall not require the payment of a benefit, benefit amount, or distribution option not otherwise set forth in the plan or a statute.

h. The agreement shall not require the plan to pay benefits that are already required to be paid to another alternate payee or which are already subject to an assignment or lien.

i. The agreement shall specify that it shall apply to successor plans.

j. The agreement shall comply with any additional rules or procedures promulgated by the plan administrator governing the implementation of agreements under this subsection.

k. The agreement shall specify that once approved by the court, the order approving the agreement shall be certified by the clerk of the court and shall be submitted to and received by the plan administrator at least 30 days before the plan is required to make its first payment pursuant to the agreement.

4. The plan administrator may promulgate rules or procedures governing the implementation of subsection (g)(3) of this section. Such rules or procedures may include the requirement that a standardized form be used by the parties and the court for an order approving the parties' agreement to be effective, as well as other provisions consistent with the purposes of this section and applicable Colorado statutes.

(h) Payments due minors or incapacitated persons. If any person entitled to a payment under the plan is a minor, or if the plan administrator determines that any such person is incapacitated by reason of physical or mental disability, whether or not legally adjudicated an incompetent, the plan administrator shall have the power to cause the payments becoming due to such person to be made to another for his benefit, without responsibility of the plan administrator or the trustee to see to the application of such payments. Payments made pursuant to such power shall operate as a complete discharge of the trust fund, the trustee and the plan administrator.

(i) Uniformity of application. The provisions of this plan shall be applied in a uniform and nondiscriminatory manner in accordance with rules adopted by the plan administrator which shall be systematically followed and consistently applied so that all persons similarly situated shall be treated alike.

(j) Disposition of unclaimed payments. Any communication, statement or notice addressed to a participant, beneficiary or alternate payee at his last post office address filed with the plan administrator, or if no address is filed with the plan administrator then at his last post office address as shown on the City's records, will be binding on the participant, his beneficiaries, or alternate payees for all purposes of the plan. Neither the plan administrator nor the trustee shall be required to search for or locate a participant, beneficiary, or alternate payee. If the plan administrator notifies a participant, beneficiary, or alternate payee that he is entitled to a distribution and also notifies him of the provisions of this section, and the participant, beneficiary, or alternate payee fails to claim his benefits under the plan or make his address known to the plan administrator within three calendar years after the participant's required beginning date, the benefit will be treated as having been forfeited. The plan shall pay the benefit to the participant, beneficiary, or alternate payee when the participant, beneficiary, or alternate payee files a claim for the benefit and makes his address known to the plan administrator.

(1) The entire vested accrued benefit of a participant in the plan will be distributed (i) to such participant not later than the required beginning date, or (ii) beginning not later than the required beginning date, in accordance with the regulations to be issued by the Secretary of Treasury, over the life of such participant or over the lives of such participant and a designated beneficiary (or over a period not extending beyond the life expectancy of such participant or the life expectancy of such participant and a designated beneficiary). The amount distributed shall be not less than the amount required by code section 401(a)(9) and the regulations promulgated thereunder.

(2) If the distribution of a participant's interest has begun in accordance with subsection (1) and if the participant dies before his entire accrued benefit has been distributed to him, the remaining portion of such accrued benefit must be distributed at least as rapidly as under the method of distributions being used under subsection (1) as of the date of his death. If a participant dies before the distribution of the participant's accrued benefit has begun in accordance with subsection (1), the entire accrued benefit of the participant will be distributed within five years after the death of such participant. Notwithstanding the foregoing sentence, if any portion of the participant's accrued benefit is payable to (or for the benefit of) a designated beneficiary, and if such portion will be distributed (in accordance with the regulations to be issued by the Secretary of the Treasury) over the life of such designated beneficiary (or over a period not extending beyond the life expectancy of such beneficiary), and if such distributions begin not later than one year after the date of the participant's death or such later date as the Secretary of the Treasury may by regulations prescribe, then for purposes of this sentence any portion of the participant's accrued benefit payable to (or for the benefit of) a designated beneficiary shall be treated as distributed on the date on which such distributions begin. Notwithstanding the foregoing, if the designated beneficiary referred to in the preceding sentence is the beneficiary of the participant, the date on which the distributions are required to begin under the foregoing sentence shall not be earlier than the date on which the participant would have attained age 70½ and, if the beneficiary dies before the distributions to such spouse begin, this provision shall be applied as if the beneficiary were the participant.

(3) The following special rules apply:

a. The life expectancy of a participant and the participant's spouse (other than in the case of a life annuity) may be redetermined but not more frequently than annually.

b. For purposes of this subsection, the term "designated beneficiary" means any individual designated as a beneficiary by the participant.

c. For purposes of this section, any amount paid to a child shall be treated as if it had been paid to the surviving spouse if such amount will become payable to the surviving spouse upon such child reaching majority (or other designated event) permitted under regulations to be issued by the Secretary of Treasury.

(l) Forfeitures. Forfeitures arising from separation of employment, death, or for any other reason shall not be applied to increase the benefits any participant would otherwise receive under the plan at any time prior to the termination of the plan or the complete discontinuance of contributions to the plan. Any amounts so forfeited shall be used as soon as possible to reduce the City's contributions under the plan.

(m) Gender and number. Whenever used herein, words in any gender shall be deemed to include the other gender and the singular shall be deemed to include the plural and vice versa, unless the context expressly indicates otherwise.

(n) Applicable law. This plan shall be construed and regulated by the Code, and to the extent applicable, the laws of the State of Colorado. (Ord. No. 2011-47, § 1, 1-9-2012; Ord. No. 2001-70, § 12, 11-19-2001)