HomeMy WebLinkAboutCC RES 08-047RESOLUTION NO. 08-47
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA, RESCINDING RESOLUTION 99-60, AND
ESTABLISHING AN EMPLOYEES' FLEXIBLE BENEFIT PROGRAM
AS DEFINED UNDER INTERNAL REVENUE CODE SECTION 125
WHEREAS, the flexible benefits plan allows employees to select to have health
benefit options on a pre -taxed basis.
WHEREAS, Section 125 of the Internal Revenue Code allows employees to
choose among two or more appropriate levels of health benefits for themselves and
their families.
WHEREAS, the flexible benefits plan offers optional pre -taxed spending options
including child/dependent care, medical reimbursement account and other future
options.
WHEREAS, the flexible benefits plan allows the City of Palm Desert to participate
in CALPERS Health Benefit Services for active and retired employees.
WHEREAS, the flexible benefits plan will help control the City's future costs of
health benefits for active and retired employees.
WHEREAS, the flexible benefits plan is not considered discriminatory to
collective bargaining units.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Palm
Desert, California, adopt the attached flexible benefits plan document in accordance
with the Internal Revenue Code Section 125.
PASSED, APPROVED AND ADOPTED at the regular meeting of the Palm
Desert City Council, held on this 26th day of June, 2008 by the following vote, to wit:
AYES: FERGUSON, FINERTY, KELLY, SPIEGEL, and BENSON
NOES: NONE
ABSENT: NONE
a4-e°A
ABSTAIN: NONE
BENSON/MAYOR7E1(M. R
ATTEST:
RACHELLE
1:12--rdS-G--
D. KLASSEN, CITY CLERK
City of Palm Desert, California
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CITY OF PALM DESERT
SECTION 125
PLAN DOCUMENT
Amended and Restated Effective July 1, 2008
STATEMENT OF PURPOSE
This document describes the City of Palm Desert Section 125 Plan. The Plan was originally
effective on July 1, 1999, and is hereby amended and restated effective July 1, 2008.
The Plan is intended to qualify as a "cafeteria plan" under section 125 of the Internal
Revenue Code of 1986, as amended, and is to be interpreted in a manner consistent with all
relevant provisions of the Code.
The purpose of the Plan is to give participants a choice between receiving cash or optional
benefit coverages. The Plan enables participants who choose an optional benefit coverage
to make their contributions for such coverage on a before -tax basis.
ARTICLE I
DEFINITIONS
Whenever used herein, the following terms shall have the following meaning, unless a
different meaning is clearly required by the context:
1.1 Administrator. The Administrator shall be the entity designated as the Administrator in
section 6.1 of the Plan.
1.2 Anniversary Date. The Anniversary Date shall mean the first day of any Plan Year.
1.3 Code. Code shall mean the Internal Revenue Code of 1986, as amended.
1.4 Compensation. Compensation shall mean the total remuneration of a Participant,
including (but not limited to) wages, salary, overtime, bonuses, commissions, and any
other payment which is not an advance, loan or expense reimbursement. Each
Participant's Compensation shall be determined prior to taking into account the
Participant's salary reduction contributions under the Plan.
1.5 Dependent. Dependent shall mean any individual who is a tax dependent of the
Participant as defined in Code section 152(a); however, in the case of a health benefit,
a Dependent shall be defined as set forth in Code section 105(b) and the regulations
issued under Code section 106. For purposes of a dependent -care flexible spending
arrangement (if offered under the Plan), a Dependent shall also be defined as in Code
section 21(e)(5) (i.e. a dependent of the parent with custody for the greater portion of
the calendar year).
1.6 Effective Date. Effective Date shall mean July 1, 2008.
1.7 Election Period. Election Period shall mean the period of time in which a Participant or
Eligible Employee may enter, change, or terminate from the Plan.
1.8 Eliaible Employee. Eligible Employee shall mean (a) any Employee who is regularly
scheduled to work a minimum of 20 hours per week and (b) any city council member.
Notwithstanding anything in the Plan to the contrary, the term "Eligible Employee" shall
not include Employees who are classified by the Employer as temporary Employees,
and Employees who are regularly scheduled to work less than 20 hours per week.
1.9 Employee. Employee shall mean (a) any individual who is classified by the Employer
as an employee of the Employer and who is on the Employer's Form W-2 payroll, and
(b) any elected official of the Employer; provided, that the person is not classified by
the Employer as a leased employee or contract worker.
1.10 Employer. Employer shall mean City of Palm Desert.
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1.11 "Flex Dollars": Flex Dollars shall mean benefit credits or benefit dollars provided to a
participant by the Employer, which may be applied towards the cost of Optional Benefit
Coverages.
1.12 Highly Compensated Employee. Highly Compensated Employee shall mean any
individual defined under Code section 125(e) as a "highly compensated individual" or
"highly compensated employee."
1.13 Insurance Company. Insurance Company shall mean any insurance company,
insurance carrier, or insurer that underwrites insurance and has a contract with the
Employer for an Optional Benefit Coverage under this Plan.
1.14 Optional Benefit Coverage. Optional Benefit Coverage shall mean coverage available
to Participants under the Plan.
1.15 Participant. Participant shall mean any Eligible Employee who elects to participate in
the Plan in accordance with Article II.
1.16 Period of Coverage. Period of Coverage shall mean (i) a Plan Year, or (ii) the portion
of the Plan Year remaining after the effective date of an Eligible Employee's election of
an Optional Benefit Coverage under the Plan, or (iii) the portion of the Plan Year prior
to a Participant's termination from the Plan, whichever is applicable.
1.17 Plan. Plan shall mean the City of Palm Desert Section 125 Plan, as set forth herein.
1.18 Plan Year. Plan Year shall mean the period beginning January 1 and ending
December 31.
1.19 Salary Reduction Contributions. Salary Reductions Contributions shall mean the
amount that each Participant has authorized the Employer to reduce his or her
Compensation on a before -tax basis in order for such amount to be contributed to the
Plan to provide the Optional Benefit Coverages selected by the Participant. The
amount of Salary Reduction Contributions shall be designated on the salary reduction
agreement specified by the Administrator.
1.20 Status Chance. Status Change shall mean any of the events described in section
4.6(A) of the Plan.
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ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.1 Eligibility.
All Employees shall become eligible to participate in the Plan upon satisfying the
definition of an Eligible Employee.
2.2 Entry Date.
Eligible Employees begin participating in the Plan on the first day of the month
following their first day of active service for the Employer.
2.3 Employee Election.
All Employees who meet the eligibility requirements set forth in section 2.1 may elect,
during the appropriate Election Period, to become a Participant by completing the
salary reduction agreement specified by the Administrator, and submitting the
completed agreement to the Administrator. The agreement designates whether the
Employee desires to elect Optional Benefit Coverages under the Plan.
2.4 Election Periods.
Eligible Employees shall be allowed to make elections under the Plan during the
following Election Periods:
(A) Initial Election Period.
All Eligible Employees have an Election Period of 30 days, beginning on their
first date of active service for the Employer, during which they must complete
and submit the necessary forms to the Administrator to elect the Optional
Benefit Coverages that they desire under the Plan. This initial Election Period
may be extended by the Administrator, at its sole discretion, upon written notice
to Eligible Employees.
(B) Annual Election Periods.
After an Eligible Employee's initial Election Period, the Eligible Employee may
elect to change, modify, decrease, or increase his or her benefits during the
annual Election Period, which shall be the 30 day period immediately preceding
the Anniversary Date of the Plan or such other 30 day period as may be
specified by the Employer. Eligible Employees must complete a new salary
reduction agreement as described in section 2.3 in order to make changes in
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their Plan elections. This annual Election Period may be extended by the
Administrator, in its sole discretion, upon written notice to Eligible Employees.
2.5 Termination of Participation.
A Participant shall remain a Participant in the Plan until the occurrence of one or more
of the following:
(A) Participant ceases to be eligible to participate in Plan;
(B) Participant's employment is terminated;
(C) Participant's death;
(D) The termination of this Plan;
(E) Participant elects not to participate under section 4.4(c).
2.6 Termination of Employment.
If a Participant's employment is terminated, then all contributions to the Plan by the
Participant shall cease upon the termination date. The Participant shall no longer be
considered a Participant, effective on the date of termination of employment.
However, a Participant may still be eligible for certain benefits in accordance with the
terms of the Optional Benefit Coverages for which contributions have been paid on the
Participant's behalf. The continuation of any benefit shall be governed solely by the
terms and provisions of the plans providing the Optional Benefit Coverages, and in
accordance with applicable law.
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ARTICLE III
OPTIONAL BENEFIT COVERAGES
3.1 Coverage Options.
Each Participant may choose under this Plan to receive his or her Compensation in
cash, plus any flex dollars, or to have a portion of it applied by the Employer toward
the cost of the Optional Benefit Coverages available to the Participant.
Notwithstanding anything herein to the contrary, Optional Benefit Coverages shall be
limited to coverages and benefits available under the plans identified in schedule A.
3.2 Description of Optional Benefit Coverages.
While the election of one or more of the Optional Benefit Coverages may be made
under this Plan, the coverages and benefits thereunder will be provided not by this
Plan but by the plans identified in schedule A. The requirements for participating in
such plans, and the other terms and conditions of coverage and benefits under such
plans, are set forth from time to time in the plans identified in schedule A, and in any
group insurance contracts and prepaid health plan contracts that constitute (or are
incorporated by reference) in certain of those plans. The benefit descriptions in such
plans, as in effect from time to time, are hereby incorporated by reference into this
Plan.
3.3 Election of Optional Benefit Coverages in Lieu of Cash.
A Participant may elect under this Plan to receive one or more of the Optional Benefit
Coverages described in section 3.2, to the extent available to the Participant under the
applicable plans identified on schedule A, in accordance with the procedures
described in sections 4.1, 4.2 and 4.3.
If a Participant elects coverage for a Period of Coverage under a plan identified on
Schedule A, and if the Participant is required under such plan to pay a share of the
cost of such coverage, such share shall be paid by the Participant. Payment shall first
be from the Participant's Flex Dollars, as provided in Section 5.2, and second by
means of a reduction in the Participant's regular compensation for the Period of
Coverage for the balance of the cost of each coverage elected.
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ARTICLE IV
ELECTIONS
4.1 Election Procedure.
Prior to the commencement of each Period of Coverage, the Administrator shall
provide one or more written election forms and salary reduction agreements to each
Participant and to each other individual who is expected to be an Eligible Employee at
the beginning of the applicable Period of Coverage. The election forms and
agreements shall be effective as of the first day of the Period of Coverage. Each
Participant who desires to elect an Optional Benefit Coverage available for the Period
of Coverage shall so specify on the appropriate election form or agreement, and shall
agree to a reduction in his or her Compensation.
(A) The amount of the reduction in the Participant's Compensation for the Period of
Coverage for an Optional Benefit Coverage on schedule A shall equal the
Participant's share of the cost of such coverage, reduced by the amounts paid
by the Employer (if any).
(B) The amount of contributions shall change according to the schedule of
Employee contributions for the Employer's group benefits. A Participant's salary
reduction agreement could automatically increase or decrease, depending upon
the change in premiums of that particular benefit offered by the Employer, or
increase or decrease depending upon the amount of the Participant's required
contribution for benefits.
Each election form must be completed and returned to the Administrator on or before
such date as the Administrator shall specify, which date shall be no later than the
beginning of the first pay period for which the participant's salary reduction agreement
will apply.
4.2 Salary Reduction Agreements
Each Participant shall complete a salary reduction agreement at the initial Election
Period. In all following years, if a Participant desires to change the amount of the
election, enroll in the Plan, or terminate from the Plan, a new salary reduction
agreement must be completed within the annual Election Period.
4.3 Initial Elections.
Upon commencing employment as an Eligible Employee, an Eligible Employee who is
not already a Participant in the Plan shall have 30 days to elect one or more Optional
Benefit Coverage under the Plan for the remainder of the Plan Year. Such election
shall be made by completing the salary reduction agreement and other necessary
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forms as specified by the Administrator. The Administrator may choose to extend this
initial Election Period, at its sole discretion, in order to assist Employees in determining
whether to participate in the Plan.
4.4 Failure to Return Election Forms.
(A) A new Participant's failure to return a completed election form under section
4.1, 4.2, or 4.3 to the Administrator on or before the specified due date for the
Period of Coverage in which he or she becomes a Participant with respect to
the benefits available for that Period of Coverage shall constitute (1) an election
to participate in any default coverage as the Administrator may, in its discretion,
designate from time to time; and (2) an agreement to a reduction in the
Participant's Compensation for the Period of Coverage equal to the cost of the
Participant's share of such coverages for the Period of Coverage, reduced by
the amounts paid by the Employer (if any).
(B) An existing Participant's failure to return a completed election form to the
Administrator relating to coverage under a plan identified as an Optional Benefit
Coverage on Schedule A on or before the specified due date for any subsequent
Period of Coverage shall be deemed to constitute (1) a reelection to participate
in any of the same Optional Benefit Coverages, if any, under such plans as were
in effect just prior to the end of the preceding Period of Coverage (to the extent
such coverage remains available as an Optional Benefit Coverage under the
Plan), and (2) an agreement to a reduction in the Participant's Compensation for
the subsequent Period of Coverage equal to the Participant share of each such
coverage for the Period of Coverage, reduced by the amounts paid by the
employee's flex dollars (if any) under Section 5.2.
(C) Participants may voluntarily terminate their participation in the Plan, but only
during an annual Election Period. If a Participant elects not to participate for the
Plan Year applicable for the annual Election Period, then that Participant cannot
elect to reenter the Plan until the next annual Election Period, unless a Status
Change occurs.
4.5 Irrevocable Nature of Salary Reduction Selected.
(A) A Participant's election of the amount of the Salary Reduction Contributions
shall be irrevocable during the Period of Coverage.
(B) Participants can change, modify, decrease or increase their Salary Reduction
Contributions only if a Status Change has occurred, a change has occurred in
the Employer's group benefits offered to its Employees, or a change has
occurred in the amount of contributions for the Plan as required by the
Employer during the Plan Year. If such a change has occurred, then the
Participant must submit to the Administrator a completed new salary reduction
agreement in order to have the change be effective at the beginning of the
following payroll period for the remaining Period of Coverage.
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(C) The Employer and/or the Administrator cannot change any amount of the
Salary Reduction Contributions selected by each Participant during the Plan
Year, unless a termination has occurred as defined under section 2.5 or 2.6 of
this Plan, or a Status Change has occurred, or a change has occurred in the
Employer's group benefits offered to its Employees, or a change has occurred
in the amount of contribution for the plan's benefits as required by the
Employer.
4.6 Status Chances.
A Participant's election made under the Plan (including an election made through
inaction under section 4.4) shall be irrevocable by the Participant during the Period of
Coverage, except as otherwise provided in sections (A) through (F) below. A
Participant may revoke an election in writing for the balance of the Period of Coverage
and, if desired, file a new election in writing if, under the facts and circumstances, a
Status Change occurs, and the requested revocation and new election satisfy the
applicable consistency requirements in section 4.7 hereof. Application for a Status
Change must be submitted to the Administrator within 30-days of the actual event.
(A) For this purpose, a Status Change includes the following events:
1. Legal Marital Status. Events that change a Participant's legal marital
status, including marriage, death of spouse, divorce, legal separation,
or annulment.
2. Number of Dependents. Events that change the Participant's number
of Dependents, including birth, adoption, placement for adoption (as
defined in regulations under Code section 9801), or death of a
Dependent.
3. Employment Status. Any of the following events that change the
employment status of the Employee, Employee's spouse, or the
Employee's Dependent: a termination or commencement of
employment; a strike or lockout; a commencement of or return from
an unpaid leave of absence; and a change in worksite. In addition, if
the eligibility conditions of the cafeteria plan or other employee
benefit plan of the employer of the Employee, spouse, or Dependent
depend on the employment status of that individual and there is a
change in that individual's employment status with the consequence
that the individual becomes (or ceases to be) eligible under the plan,
then that change constitutes a change of employment under this
paragraph.
4. Requirements For Unmarried Dependents. An event that causes a
Participant's Dependent to satisfy or cease to satisfy the
requirements for coverage due to attainment of age, student status,
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or any similar circumstance as provided in any accident or health plan
identified in schedule A under which the Participant received
coverage.
5. Residence or Worksite. A change in the place of residence or work of
the Participant or the Participant's spouse or Dependent.
6. Enrollment in Health Coveraae. A significant change in the cost or
health coverage of the Participant or the Participant's spouse
attributable to the spouse's employment, and such other events that
the Administrator determines will permit the revocation of an election
(and, if applicable, the filing of a new election) during a Period of
Coverage under regulations and rulings of the Internal Revenue
Service.
(B) In order to revoke an election or file a new election under this subsection, a
Participant must submit to the Administrator a written application within 30 days
of the Status Change.
(C) In the case of coverage under a welfare plan identified in Schedule A, a
Participant may revoke an election in writing for the balance of the Period of
Coverage and file a new election in writing that corresponds with the special
enrollment rights provided in Code section 9801(f), whether or not the change in
election is permitted under section 4.6 above.
(D) In the case of a judgment, decree or order resulting from a divorce, legal
separation, annulment, or change in legal custody (including a qualified medical
child support order) that requires accident or health coverage for a Participant's
child, a Participant may change his or her election (1) to provide coverage for
the child under a health plan identified in schedule A if the order so requires, or
(2) to cancel coverage under a health plan identified in schedule A for the
Participant's child if such order requires the Participant's former spouse to
provide coverage.
(E) In the case of coverage under a health plan identified in schedule A, a
Participant may revoke an election in writing for the balance of the Period of
Coverage and file a new election in writing to cancel such health plan coverage
for the Participant and/or the Participant's spouse or Dependent to the extent
that such individual become entitled to coverage under Part A or Part B of Title
XVIII of the Social Security Act (Medicare) or Title XIX of the Social Security Act
(Medicaid), other than coverage consisting solely of benefits under section 1928
of the Social Security Act (the program for distribution of pediatric vaccines). In
addition, if an Employee, spouse or Dependent who has been entitled to such
coverage under Medicare or Medicaid loses eligibility for such coverage, the
Plan may permit the Employee to make a prospective election to commence or
increase coverage of that Employee, spouse, or Dependent under the accident
or health plan. A Participant may not revoke his or her election if he or she
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becomes eligible for state children's health insurance program coverage during
the year.
(F) In the case of coverage under a health plan identified in schedule A which is
provided by an independent third -party provider, if:
1. The Participant's share of the cost of such coverage significantly
increases as a result of a significant cost increase by the independent
third -party provider, or
2. Such coverage ceases or is significantly curtailed,
the Administrator may permit all Participants electing such coverage for the
Period of Coverage to revoke their elections for the balance of the Period of
Coverage, provided that similar coverage is elected under a health plan
identified in schedule A for the balance of the Period of Coverage.
(G) Any revocation and new election under this section 4.6 shall be effective at
such time as the Administrator shall prescribe, but not earlier than the first pay
period beginning after the revocation and submission of a new election to the
Administrator, unless otherwise required by law.
4.7 Consistency Rules.
A Participant's requested written revocation and new election will be consistent with a
Status Change described in section 4.6 if, and only if, (1) the Status Change results in
the Participant, or the Participant's spouse or Dependent, gaining or losing eligibility
for accident or health coverage under either the Plan or a plan of the spouse's or
Dependent's employer, and (2) the election change corresponds with that gain or loss
of coverage.
Notwithstanding anything in this section 4.7 to the contrary, if the Participant, or the
Participant's spouse or Dependent, become eligible for continuation coverage under a
health plan identified in schedule A as provided in Code section 4980B or any similar
state law, the Participant may elect to reduce his or her Compensation under the Plan
in order to pay for the continuation coverage.
4.8 Changes by Administrator.
If the Administrator determines, before or during any year, that the Plan may fail to
satisfy for such year any nondiscrimination or other requirement imposed by the Code,
or any limitation on benefits provided to the Highly Compensated Employees, the
Administrator shall take such action as the Administrator deems appropriate, under
rules uniformly applicable to similarly situated Participants, to assure compliance with
such requirement or limitation. Such action may include, without limitation, a
modification of elections by Highly Compensated Employees (as defined by the Code
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for purposes of the nondiscrimination requirement in question) without the consent of
such Employees.
4.9 Adiustment of Compensation Reductions.
If the cost of Optional Benefit Coverages provided by an independent third -party
provider under a medical, dental or vision plan identified in Schedule A increases or
decrease during a Period of Coverage, a corresponding change shall be made in the
Salary Reduction Contributions of all Participants receiving such coverage in an
amount to be determined by the Administrator.
4.10 Maximum Elective Contributions.
The maximum amount of elective contributions under the Plan for any Participant shall
be the total cost to the Participant for the Period of Coverage of the most expensive
Optional Benefit Coverages that any Participant could elect.
4.11 Cessation of Required Contributions.
Nothing in this Plan shall prevent the cessation of coverage or benefits under any plan
identified on schedule A, in accordance with the terms of such plan, on account of a
Participant's failure to pay the Participant's share of the cost of such coverage or
benefits, through Compensation reduction or otherwise.
4.12 Coordination with Family and Medical Leave Act.
Notwithstanding any other provision of this Plan, the Administrator may (a) permit a
Participant to revoke and (subsequently reinstate) his or her election of one or more
Optional Benefit Coverages under the Plan, and (b) adjust a Participant's
Compensation reduction as a result of a revocation or reinstatement to the extent the
Administrator deems necessary or appropriate to assure the Plan's compliance with
the provisions of the Family and Medical Leave Act of 1993 and any regulations
pertaining thereto.
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ARTICLE V
FLEX DOLLARS AND ADDITIONAL CASH BENEFITS
5.1 Flex Dollars. A Participant will be eligible to receive Flex Dollars if, and to the extent
that, the Employer has elected to provide Flex Dollars under the Plan. Prior to the
commencement of each Period of Coverage the Employer shall determine the amount
of Flex Dollars available to each such Participant in accordance with the rules and
procedures adopted by the Employer and by the Plan Administrator, which shall not
discriminate in favor of Highly Compensated Employees. The Administrator shall
notify such Participant in writing of the amount of Flex Dollars available to him or her
for the Period of Coverage (or for the balance of the Period of Coverage).
5.2 Allocation of Flex Dollars. Any Flex Dollars available to a Participant under this Article
V shall be applied proportionately each pay period toward the cost of the Optional
Benefit Coverages elected by the Participant. If for any Period of Coverage the cost of
the Optional Benefit Coverages elected by the participant exceeds the Participant's
Flex Dollars, then the Participant's compensation shall be reduced proportionately
each pay period on a pre-tax basis in the amount of the excess, and an amount equal
to the compensation reduction shall be contributed by the Employer to cover the
remaining cost of the optional Benefit Coverages elected by the Participant. However,
if for any Period of Coverage the cost of the Optional Benefit Coverages elected by the
Participant is less than the Participant's Flex Dollars, then the Participant shall receive
the value of any Flex Dollars not allocated to Optional Benefit Coverage and divert
them to the plans described on Schedule B or receive the Flex Dollars as taxable
income.
5.3 Waiver of Coveraae Cash Option. A Participant who has elected to waive coverage
under a medical, dental and/or vision Optional Benefit Coverage identified in Schedule
A may elect the Waiver of Coverage Cash Option. Under this Option, the Employer will
increase such Participant's cash compensation by the waiver amount applicable to the
Participant for each pay period during which the Participant does not have in effect any
medical, dental and or vision Optional Benefit Coverage. Determination of the waiver
amount available to Participants, and the manner in which it is paid, shall be made in
accordance with the rules and procedures adopted by the Employer and by the
Administrator, which shall not discriminate in favor of Highly Compensated Employees.
The Administrator shall notify such Participant in writing of the waiver amount available
to him or her for the Period of Coverage (or for the balance of the Period of Coverage)
under this Coverage Cash Option. A Participant may elect the Waiver of Coverage
Cash Option in writing in such form and manner as the Administrator shall prescribe,
at the same time or times that the Participant is permitted to elect Optional Benefit
Coverages under Article IV. Such election shall be irrevocable during each Period of
Coverage to the same extent as an election of Optional Benefit Coverages identified in
Schedule A.
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ARTICLE VI
NON-DISCRIMINATION
6.1 Intent.
It is the intent of this Plan not to discriminate between any classes of Employees or
create such an action in part or whole of this Plan document that is in violation of Code
section 125 and applicable regulations. The Administrator shall avoid all discretionary
acts, which could be deemed to be discriminatory under any applicable Code section
or law.
6.2 Reduction of Benefits and/or Contributions.
The Administrator may reduce, modify, change or reject the benefits or amounts of
contribution of any Participant of the Plan, if the Administrator deems it necessary to
make certain this Plan does not discriminate in favor of Highly Compensated
Employees within the meaning of Code section 125 and any other applicable Code
section or law.
6.3 Treatment of Contribution Reductions.
Contribution reductions due to the Administrator's actions in accordance with sections
4.1 and/or 4.2 of the Plan shall be returned to the Participant in the form of a taxable
refund of contributions.
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ARTICLE VII
ADMINISTRATION
7.1 Appointment of Administrator.
The Employer is hereby designated as the Administrator.
7.2 Duties of the Administrator.
The Administrator shall be responsible for the complete management of the Plan, and
shall undertake any action necessary to preserve the benefits of the Participants. The
Administrator shall have all necessary discretionary power to carry out the full
administration and management of the Plan. The Administrator's powers shall include,
but are not limited to, the following:
(A) To interpret the provisions of the Plan;
(B) To enforce all provisions of the Plan;
(C) To decide all questions of eligibility;
(D) To decide all questions of benefits;
(E) To decide the proper management of benefit claims;
(F) To obtain from every Employee the necessary forms and documents that allow
participation in the Plan;
(G) To obtain from every Participant the necessary forms and documents that allow
continued participation or termination of participation in the Plan;
(H) To contract with any and all insurance companies or other suppliers to provide
benefits under the Plan;
(I) To notify each Participant in writing of any amendment of the Plan, of any
proposed amendment of the Plan, of the termination of any benefit of the Plan,
and of the termination of the Plan;
(J) To provide guidance for Employees and Participants as to questions of
participation, benefits, or and other matters in connection with the Plan;
(K) To appoint agents, consultants and professionals to assist in administering the
Plan, and to complete necessary documentation and reports;
(L) To avoid discrimination under the Plan;
(M) To pay for any administrative costs of the Plan;
(N) To do any other acts as deemed necessary to administer and manage the plan
for the benefit of its Participants.
7.3 Reports and Records.
The Administrator shall keep books, reports and records of all activities under the
Plan. The records of the Plan shall be open for inspection during normal business
hours, provided that a Participant may only inspect that Participant's individual
participation records. The Administrator shall prepare and submit to the Employer an
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annual report containing material which the Administrator deems necessary under
Code section 125 or any other section of the Code.
7.4 Administrator Limitations.
The Administrator is not responsible for administration of any group insurance plan
supplied by an insurance Company.
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ARTICLE VIII
AMENDMENT AND TERMINATION OF THE PLAN
8.1 Amendment.
The Employer may amend the Plan at any time, and from time to time, either
retroactively or prospectively, except as may be limited by applicable law.
8.2 Termination.
The Employer expects that this Plan will be maintained indefinitely. However,
continuance is not guaranteed. The Employer reserves the right to terminate the Plan
at any time with advance notice to Participants.
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ARTICLE IX
MISCELLANEOUS
9.1 Indemnification by Employer.
To the fullest extent permitted by law, the Employer shall indemnify and hold harmless
the Administrator and Employees who perform duties under the Plan, against all
claims, losses, damages, expenses, and liabilities resulting from any action or
omission of any such person in connection with administering the Plan, as long as
such action or omission was at the time in good faith and carried forth with proper
diligence and care, and provided that the Employer determines in its discretion that the
Administrator or Employee did not commit gross negligence or willful misconduct.
The Employer shall not be responsible for any action taken by any Insurance
Company, nor shall it be responsible to make payments to any Participant if the
Insurance Company fails to do so.
9.2 Funding.
All contributions to the Plan shall be considered general assets of the Employer.
9.3 Not an Employment Agreement.
The establishment of the Plan shall not be construed to constitute a contract between
the Employer and any Participant, or to be a consideration or inducement for the
employment of any Participant or Employee, or to confer upon any Employee or
Participant any legal right to be retained in the employ of the Employer. All Employees
will remain subject to discharge to the same extent as if the Plan had never been
adopted, and may be treated without regard to the effect such treatment might have
upon them under the Plan. Nothing in the Plan shall be deemed to be an agreement,
consideration, inducement, or condition of employment.
9.4 Titles and Headings.
The captions contained herein are inserted only as a matter of convenience and for
reference and in no way define, limit, enlarge or describe the scope or intent of the
Plan, nor in any way shall affect the Plan or the construction of any provision thereof.
9.5 Gender and Number.
Wherever used in this document, the singular shall mean the plural, the plural shall
mean the singular, the masculine shall mean the feminine, and the feminine shall
mean the masculine, except where the context requires otherwise.
- 18 -
9.6 Amendments in Writing.
Any and all amendments to this Plan need to be in writing, and signed by a duly
authorized representative of the Employer, in order to be valid.
9.7 Severabilitv.
If any provision of the Plan is held invalid or unenforceable, its invalidity or its inability
to be enforced will not affect other provisions of the Plan, and the Plan will be
construed and enforced as if such provision had not been included therein.
9.8 Administrator Information.
Name and address of the Administrator:
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260
Telephone number of the Administrator:
760-346-0611
Employer identification number of the Administrator:
95-2859459
9.9 Governing Law.
The Plan shall be construed in accordance with the laws of the state of California to
the extent not preempted by federal law.
- 19 -
SCHEDULE A
OPTIONAL BENEFIT COVERAGES
Optional Benefit Coverages shall consist of coverages under the following plans maintained
by the Employer:
• City of Palm Desert Medical Plan
• City of Palm Desert Dental Plan
• City of Palm Desert Vision Plan
• City of Palm Desert Health Care Spending Account Plan
• City of Palm Desert Dependent Care Spending Account Plan
The plan documents for the above -referenced plans are hereby incorporated into this Plan by
reference.
- 20 -
SCHEDULE B
Flex Dollar Allowance Schedule
With Health Insurance Coverage
Employee Only
Employee + 1
Employee + 2 or more
Without Health Insurance Coverage
Employee Only
Employee + 1
Employee + 2 or more
Dental & Vision
Employee Only Actual Premium
Actual Premium
Employee + 1 Incl. dependants
Employee + 2 or Actual Premium
more Incl. dependants
Premium Coverage
Actual Premium up to PersChoice Rate
Actual Premium up to PersChoice Rate
Actual Premium up to PersChoice Rate
Cash in Lieu of Premium
$150.00
$150.00
$ 150.00
Flex Dollars
$ 50.00
$ 50.00
$ 50.00
-21 -
SIGNATURE PAGE
IN WITNESS WHEREOF, the Employer has caused this Plan to be signed by its duly
authorized representative on the 26th day of June , 200_$
City of Palm Desert
By:
ioai,
- 22 -
[This page has intentionally been left blank.]
CITY OF PALM DESERT
DEPENDENT CARE SPENDING ACCOUNT PLAN
Amended and Restated Effective July 1, 2008
STATEMENT OF PURPOSE
This document describes the City of Palm Desert Dependent Care Spending Account Plan,
effective on July 1, 1999.
The Plan is intended to qualify as a "dependent care reimbursement plan" under sections
125 and 129 of the Internal Revenue Code of 1986, as amended, and is to be interpreted
in accordance with all relevant provisions of the Code. The Plan operates in conjunction
with the City of Palm Desert Section 125 Plan.
The purpose of the Plan is to provide participants with reimbursements of dependent care
expenses, which are funded by participants with before -tax contributions.
1
ARTICLE I
DEFINITIONS
Whenever used herein, the following terms shall have the following meaning, unless a
different meaning is clearly required by the context:
1.1 Administrator. Administrator shall be the entity designated as the Administrator in
section 10.1 of the Plan.
1.2 Anniversary Date. The Anniversary Date shall mean the first day of any Plan
Year.
1.3 Annual Enrollment Period. The 30 day period during which an Eligible Employee
may make an election pursuant to section 3.3.
1.4 Change in Status. When facts and circumstances warrant, a change is deemed
to occur on the date of:
(A) a change in the Employee or Dependent's marital status, including marriage,
death of spouse, divorce, legal separation or annulment.
(B) the birth, placement for adoption or adoption of a Dependent child;
(C) the death of an Employee's spouse or Dependent child;
(D) the commencement or termination of employment of the Employee or
Employee's spouse or Dependent;
(E) the switching from part-time to full-time employment status; or visa versa, by
the Employee or the Employee's spouse;
(F) the taking of an unpaid leave of absence by the Employee or the Employee's
spouse;
(G) change in the Participant's eligibility for purposes of coverage under any
Employer -sponsored benefit plan offered through this Plan;
(H) a special enrollment pursuant to the Health Insurance Portability and
Accountability Act of 1996;
(J) a cost increase or decrease in the service provided by the Day Care Service
Provider, unless the provider is a relative of the participant
1.5 Code. Code shall mean the Internal Revenue Code of 1986, as amended.
2
1.6 Compensation. Compensation shall mean the total remuneration of a Participant,
including (but not limited to) wages, salary, overtime, bonuses, commissions, and
any other payment which is not an advance, loan or expense reimbursement. Each
Participant's Compensation shall be determined prior to taking into account the
Participant's salary reduction contributions under the Plan.
1.7 Dependent. Dependent shall mean any individual who is a tax dependent of the
Participant as defined in Code section 152(a), or as defined in Code section
21(e)(5) (Le. a dependent of the parent with custody for the greater portion of the
calendar year).
1.8 Dependent Care Assistance. Dependent Care Assistance shall mean
reimbursement under the terms of this Plan for Employment Related Expenses.
1.9 Dependent Care Service Provider. Dependent Care Service Provider shall mean a
person who provides care or other services that constitute Employment Related
Expenses, but shall not include (a) a dependent care center (as defined in section
21(b)(2)D of the Code), unless the requirements of the Code section 21(b)(2)C are
satisfied, or (b) a related individual described in section 129(c) of the Code.
1.10 Dependent Care Spending Account. The Participant's Dependent Care Spending
Account under the Section 125 Plan.
1.11 Earned Income. Earned Income shall mean wages, salaries, tips and other
Compensation, including net earnings from self-employment for his or her taxable
year, and excluding pension and annuity income, income as a nonresident alien not
connected with a United States business and computed without regard to any
community property laws. A Participant's Earned Income shall not include any
amounts paid or incurred by the Employer on behalf of the Participant, whether by
salary reductions or otherwise, for Dependent Care Assistance. The Earned
Income of a spouse who is a full-time student at an educational institution or has a
Physical or Mental Incapacity shall be deemed to be not less than $250 per month if
there is one Qualifying Individual with respect to the Participant or $500 per month if
there are two or more Qualifying Individuals with respect to the Participant
1.12 Effective Date. Effective Date shall mean the date that this Plan became effective,
which was July 1, 1999.
1.13 Election Period. Election Period shall mean the period of time in which a Participant
or Eligible Employee may enter, change, or terminate from the Plan.
1.14 Eligible Employee. Eligible Employee shall mean (a) any Employee who is regularly
scheduled to work a minimum of 20 hours per week and (b) any city council
member. Notwithstanding anything in the Plan to the contrary, the term "Eligible
Employee" shall not include Employees who are classified by the Employer as
temporary Employees, and Employees who are regularly scheduled to work Tess
than 20 hours per week.
3
1.15 Employee. Employee shall mean (a) any individual who is classified by the
Employer as an employee of the Employer and who is on the Employer's Form W-2
payroll, and (b) any elected official of the Employer; provided, that the person is not
classified by the Employer as a leased employee or contract worker.
1.16 Employer. Employer shall mean City of Palm Desert
1.17 Employment Related Expenses. Employment Related Expenses shall mean
those expenses meeting the requirements set forth in article VI which are eligible
for reimbursement under article VII.
1.18 Initial Election Period. The Initial Election Period shall be the thirty (30) days after
the effective date of the Plan. This Initial Election Period may be extended by the
Administrator, at its sole discretion, upon written notice to employees.
1.19 Participant. Participant shall mean any Eligible Employee who elects to participate
in the Plan in accordance with article II.
1.20 Period of Coverage. Period of Coverage shall mean (i) a Plan Year, or (ii) the
portion of the Plan Year remaining after the effective date of an Eligible Employee's
election to participate in the Plan, or (iii) the portion of the Plan Year prior to a
Participant's termination from the Plan, whichever is applicable.
1.21 Physical or Mental Incapacity. Physical or Mental Incapacity shall mean the
individual is incapable of caring for himself or requires full-time attention of another
person for his own safety or the safety of others, because of a physical or mental
defect.
1.22 Plan. Plan shall mean the City of Palm Desert Dependent Care Spending Account
Plan, as set forth herein.
1.23 Plan Year. Plan Year shall mean the period beginning January 1 and ending
December 31.
1.24 Qualifying Individual. Qualifying Individual shall mean:
(A) An individual who is:
(1) a Dependent of the Participant, who is under the age of thirteen (13),
and with respect to whom the Participant is entitled to a deduction on
his federal income tax return under section 151(c) of the Code;
(2) a Dependent of the Participant who is under a Physical or Mental
Incapacity; or
(3) the spouse of a Participant, if such spouse is under a Physical or
Mental Incapacity.
(B) In the case of divorced or separated parents, a child who is:
4
(1) under the age of thirteen (13) years or under a Physical or Mental
Incapacity;
(2) receives over one-half (1/2) of his support during the Plan Year from
his parents who are divorced or legally separated under a decree of
divorce or separate maintenance or who are separated under a
written separation agreement or who live apart at all times during the
last six (6) months of the calendar year; and
is in the custody of one or both of his parents for more than one-half
(1/2) of the calendar year
(3)
(4) but only if the Participant has custody of such child for a longer period
during the Plan Year than the other parent.
1.25 Reauired Contribution. Required Contribution shall mean the Participant's coverage
amount for the Plan Year, divided by the number of regular Compensation
payments for the remaining Period of Coverage.
1.26 Section 125 Plan. Section 125 Plan shall mean the City of Palm Desert Section 125
Plan, as may be amended from time to time.
5
ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.1 Eligibility.
All Employees shall become eligible to participate in the Plan upon satisfying the
definition of an Eligible Employee.
2.2 Commencement of Participation.
Eligible Employees begin participating in the Plan on the first of the month following
date of hire and if this day is on or after the first day of the payroll period from which
Required Contributions are first made to the Plan on a before -tax basis under the
Section 125 Plan.
2.3 Termination of Participation.
An individual shall cease to be a Participant upon the occurrence of any of the
following:
(A) the date he or she ceases to be an Eligible Employee;
(B) the date the Plan is terminated;
(C) the last day of the Plan Year in which he or she ceases active employment
with the Employer for any reason, including retirement, resignation,
involuntary termination, layoff, leave of absence, disability or death; or
(D) the date on which he or she fails to make any Required Contribution
(including payment by salary reduction).
2.4 Reinstatement of Former Participant.
If an individual ceases to be a Participant, he or she shall become a Participant
again as of the date he or she once more becomes an Eligible Employee, and
makes an election under the Section 125 Plan to receive benefits under this Plan, or
if such election is reinstated under the Section 125 Plan.
6
ARTICLE III
ELECTIONS
3.1 Election of Benefits.
An Eligible Employee shall have the right to elect the benefits available under article
IV.
During the applicable initial election period, as determined under this article III, an
Employee who elects this benefit shall enter into a written salary reduction
agreement authorizing and directing the Employer to reduce his or her
Compensation in an amount equal to the amount determined pursuant to section
5.1 and to credit such amount to the Participant's Dependent Care Spending
Account. Except as provided in section 3.5, a salary reduction agreement may not
be changed during the Plan Year.
3.2 Initial Election.
An Employee who becomes eligible to participate must complete, sign and file an
election form with the Administrator during the 30-day period beginning on the date
he or she is first eligible pursuant to section 2.1. Subject to section 3.3, the election
shall take effect as soon as administratively practicable after the benefit election
form is filed with the Administrator, but in no event earlier than the first day of
participation, and shall continue in effect for the Plan Year until the Participant
submits a new election in accordance with either sections 3.3 or 3.5.
3.3 Election.
To elect or change benefits, Participants and eligible Employees may complete,
sign and file a benefit election form and salary reduction agreement during the Initial
Election Period or Annual Enrollment Period.
3.4 Failure to Return an Election Form.
If an Employee fails to return a completed Election Form to the Administrator on or
before the specified due date for the initial Plan Year of the Plan, or the Plan Year in
which he or she first becomes an eligible Employee, he or she shall be deemed not
to be a Participant for the first Plan Year; for subsequent years, the Employee shall
be deemed not to be a Participant absent a completed Election Form. As such, the
Employee shall also be deemed not to have agreed to a reduction of his or her
Compensation for the Plan Year.
7
3.5 Changes in Status.
A Participant may change his benefit election and any salary reduction agreement
referenced in section 3.1, by completing, signing and filing a new election form and
salary reduction agreement with the Administrator within thirty (30) days of the
occurrence of a Change in Status, provided such new election is on account of and
consistent with the Change in Status.
The Participant shall be responsible for notifying the Administrator of a Change in
Status and for requesting a benefit election form and salary reduction agreement.
Elections made pursuant to this section 3.5 shall take effect on the first day of the
month after the date the new benefit election form and salary reduction agreement
is filed with the Administrator, but in no event earlier than the earlier of:
(A) the first day of the first pay period beginning immediately after the new
benefit election form is filed with the Administrator; or
(B) the occurrence of the Change in Status.
Subject to a subsequent Change in Status and proper election, as previously
described, the new election shall continue in effect through the last day of the Plan
Year within which such election is made.
Notwithstanding any other provision of this Plan, the Administrator may (a) permit a
Participant to revoke (and subsequently reinstate) his or her election to receive
Dependent Care Assistance during the Plan Year, and (b) adjust a Participant's
Required Contribution as a result of a revocation or reinstatement to the extent the
Administrator deems necessary or appropriate to assure the Plan's compliance with
the provisions of the Family and Medical Leave Act of 1993 and any regulations
pertaining thereto.
8
ARTICLE IV
DEPENDENT CARE SPENDING ACCOUNT
4.1 No Funding of Accounts.
A Participant's Dependent Care Spending Account shall be a bookkeeping
mechanism only, and no money shall actually be paid into nor shall any interest be
credited to, or paid on, amounts credited to the Participant's Dependent Care
Spending Account. No assets or funds shall be paid to, held in or invested in any
separate trust.
4.2 Plan Participants.
A Participant shall be eligible to receive reimbursement for Employment Related
Expenses in a Plan Year up to the amount elected for coverage in the Participant's
Dependent Care Spending Account.
4.3 Reimbursement Requests.
The Participant must submit, to the Administrator, a written request for
reimbursement for his Employment Related Expenses from his Dependent Care
Spending Account on a form provided by the Administrator, along with such
evidence as the Administrator deems necessary as to the amount, nature and
payment of such expenses. Such request must be submitted by or on the 90th day
following the dose of the Plan Year for which the benefit election is effective and
during which the expenses were incurred.
4.4 Limitation on Reimbursement.
No amounts shall be reimbursed pursuant to this Plan with respect to Employment
Related Expense to the extent that the Participant incurring the Employment
Related Expense is reimbursed for it by other plans. If a Participant receives
benefits under this Plan and is reimbursed for the Employment Related Expense
giving rise to such benefits from any other source at any time, he or she shall remit
such benefits to the Administrator to the extent of such reimbursement.
4.5 Timing of Reimbursements.
Reimbursement of Employment Related Expenses to a Participant shall be paid
from the general assets of Employer as soon as administratively practicable after
the required forms and documentation have been received by the Administrator
under procedures established pursuant to the Plan.
9
4.6 Special Limitations on Employment Related Expenses.
This Plan covers only Employment Related Expenses incurred during the period for
which the Participant has elected to have funds allocated to his or her Dependent
Care Spending Account. Employment Related Expenses shall be considered
incurred when the dependent care is provided, and not when the Participant is
formally billed, charged for or pays the Employment Related Expense.
- 10 -
ARTICLE V
CREDITS AND DEBITS TO ACCOUNTS
5.1 Salary Reduction Authorization.
During the applicable election period determined under article III, each Eligible
Employee shall enter into a salary reduction agreement with the Employer which
shall provide for a reduction in the Participant's Compensation in an amount equal
to the amount determined under the Section 125 Plan.
The Administrator will provide for, and keep records of, such salary reduction
arrangements.
5.2 Change of Election.
Except as provided in section 3.5, a Participant's benefit or salary reduction election
cannot be changed during the Plan Year.
5.2 Forfeiture of Unused Spending Account Benefits.
Any amount allocated to a Dependent Care Spending Account, and not applied to
provide the elected reimbursement from such Account ninety days following the end
of the applicable Plan Year, for expenses incurred during such Plan Year, shall be
forfeited by the Participant.
- 11 -
ARTICLE VI
EMPLOYMENT RELATED EXPENSES
6.1 Employment Related Expenses.
Employment Related Expenses for which reimbursement may be made pursuant to
article VI are amounts paid by the Participant for:
(i) the ordinary and usual services necessary to the maintenance of the
Participant's home, which are performed in and about such home and
attributable in part to the care of a Qualifying Individual; or
(ii) expenses for the care of Qualifying Individuals,
if such expenses are incurred to enable the Participant and his or her spouse, if
any, to be gainfully employed (or seek gainful employment, if applicable) for a
period for which there are one or more Qualifying Individuals with respect to the
Participant.
Employment Related Expenses shall not include any amount paid for services
outside the Participant's household at a camp where the Qualifying Individual stays
overnight.
6.2 Special Limitations.
Employment Related Expenses which are incurred for services outside the
Participant's household will be entitled to reimbursement only:
(A) if incurred for the care of a Qualifying Individual who is a Dependent of the
Participant and is:
1. under the age of thirteen (13) years and with respect to whom the
Participant is entitled to a deduction for a personal exemption as a
dependent on his or her federal income tax return under section
151(c) of the Code; or
2. another Qualifying Individual who regularly spends at least eight (8)
hours each day in the Participant's household, or
(B) if incurred for services performed outside the Participant's household by a
Dependent Care Center, only if such center complies with the applicable
laws and regulations of a state or unit of local government and care is
rendered to:
1. a Qualifying Individual who is under the age of thirteen (13) years and
with respect to whom the Participant is entitled to a deduction for a
- 12 -
personal exemption as a dependent on his federal income tax return
under section 151(c) of the Code; or
2. another Qualifying Individual who regularly spends at least eight (8)
hours per day in the Participant's household.
6.3 No Payment to Certain Dependents.
Notwithstanding any provisions of the Plan and the Section 125 Plan to the contrary,
no payment shall be made hereunder to a Participant for Employment Related
Expenses for services rendered by any individual:
(A) with respect to whom, for the Participant's taxable year, the Participant or his
or her spouse is entitled to a deduction for a personal exemption as a
dependent of such individual on his or her federal income tax return under
section 151(c) of the Code; or
(B) who is a son, stepson, daughter or stepdaughter of the Participant under the
age of nineteen (19) years at the end of the Participant's taxable year.
- 13 -
ARTICLE VII
REIMBURSEMENTS
7.1 Dependent Care Reimbursement Benefit.
This Plan provides reimbursement of Employment Related Expenses.
(A) Reimbursement for Employment Related Expenses will be made only to
specifically reimburse the Participant for expenses incurred during the Plan
Year. The Participant may only obtain reimbursement of documented
expenses that meet the criteria specified in this Plan. Reimbursement of
such expenses is limited to the balance contained in the Participant's
Dependent Care Spending Account established under this Plan.
(B) Employment Related Expenses reimbursed under the Plan must have been
incurred during the period the Participant was participating in the Plan.
Expenses are treated as incurred when the services eligible for
reimbursement are rendered.
7.2 Claim Forms and Payment of Reimbursement Benefits.
The Participant must submit to the Administrator, a request for reimbursement from
his or her Dependent Care Spending Account on the form or forms provided for
such purpose by the Administrator, and in accordance with the terms of this Plan
and such procedures established by the Administrator. The form must indicate:
(A) the amount, date and nature of each expense;
(B) the name and employer identification number of the person, organization or
entity to which the expense was or is to be paid;
(C) the name of the person for whom the expense was incurred and, the
relationship of such person to the Participant;
(D) the amount recovered or expected to be recovered, under any insurance
arrangement or other plan, with respect to the expense;
(E) such other information as the Administrator shall from time to time require;
and
(F) statement that the expense (or the portion thereof for which reimbursement
is sought under the Plan) has not been reimbursed or is not reimbursable
from any other source.
- 14 -
7.3 Limitations of Benefits.
(A) A Participant shall be eligible to receive reimbursements for Employment
Related Expenses during any Plan Year in an amount not exceeding the
lesser of:
1. the amount elected by the Participant to be allocated to his
Dependent Care Spending Account under the Section 125 Plan
maintained by the Employer;
2. the statutory maximum of $5,000, (or $2,500 in the case of a married
Participant who files a separate federal tax return); or
3. the Earned Income of the Participant, or if the Participant is married at
the end of his or her taxable year, the Earned Income of the
Participant's spouse, if less. For the purpose of making
reimbursements under this Plan, the Participant's marital status shall
be deemed to be his or her marital status on the date the request for
reimbursement is made.
(B) For the purposes of this article, the following Participants shall not be
considered to be married:
1. A Participant who is legally separated under a decree
of divorce or separate maintenance; and
2. A married Participant filing a separate return:
(a) who maintains as the Participant's house a household which
constitutes the principal place of abode of a Qualifying
Individual for more than one-half (1/2) of his or her taxable
year;
(b) who furnishes more than one-half (1/2) of the cost of
maintaining such household during his or her taxable year; and
(c) whose spouse is not a member of such household for the last
six (6) months of such taxable year.
7.4 Payment of Dependent Care Expenses.
No reimbursement or payment under this article VII of expenses incurred during a
Plan Year shall at any time exceed the balance in the Participant's Dependent Care
Spending Account for the Plan Year at the time of the reimbursement or payment.
The amount of any Dependent Care Expenses not reimbursed or paid as a result of
the preceding sentence shall be reimbursed or paid at a later date during the Plan
Year only if and when the balance in the Participant's Dependent Care Expense
Account permits such reimbursement or payment, but not including amounts
contributed to the Dependent Care Spending Account after the end of the Plan
Year.
- 15 -
7.5 Reimbursements.
Reimbursement of Employment Related Expenses under this Plan shall be from the
general assets of the Employer. The Dependent Care Spending Account will not
represent actual Participant or Employer deposits into any fund. A Participant shall
have no rights to any particular assets of the Employer. A Participant's right to
reimbursement under the Plan shall be limited to the amount of salary reduction of
the Participant allocated to this Plan.
7.6 Rights of Participants.
Any Dependent Care Spending Account established hereunder shall be for the
administrative convenience of the Administrator. Nothing in this Plan shall require
the Employer to segregate or set aside any portion of its assets. Nor shall the
establishment of any Dependent Care Spending Account hereunder or of any other
administrative practice vest any Participant with title in the assets of the Employer or
entitle him or her to benefits, except as expressly provided in the Plan.
7.7 Nonalienation Clause.
Any rights or benefits under the Plan may not be anticipated, assigned (either at law
or equity), transferred or alienated by the Participant in any manner. Such
prohibition on alienation shall be a precondition for benefits under the Plan.
- 16 -
ARTICLE VIII
PAYMENT OF CLAIMS
8.1 General.
This article applies only to claims for Dependent Care Assistance described in
article Vil, not to claims under any other health and/or welfare benefit plan(s)
offered through the Section 125 Plan. Claims for such health and/or welfare
benefits shall be made and adjudicated pursuant to the terms of such underlying
plan.
8.2 Filina and Initial Determination of Claim.
Any Employee, beneficiary, or his or her duly authorized representative may file a
claim for a Plan benefit to which the claimant believes he or she is entitled. Such
claim must be in writing and delivered to the Administrator, in person or by mail,
postage prepaid. Within 60 days after receipt of such claim, the Administrator shall
notify the claimant, by mail, postage prepaid, of the granting or denial, in whole or in
part, of such claim, unless special circumstances require an extension of time for
processing the claim. In no event may the extension exceed 30 days from the end
of the initial 60-day period. If such extension is necessary, the claimant shall be
given written notice to this effect prior to the expiration of the initial 60-day period.
The Administrator shall have full discretion to deny or grant a claim in whole or in
part. If notice of the denial of a claim is not furnished in accordance with this
section, the claim shall be deemed denied and the claimant shall be permitted to
exercise his right to review under sections 8.4 and 8.5.
8.3 Duty Upon Denial of Claim.
The Administrator shall provide a claimant who is denied a claim for benefits with
written notice setting forth the following in a manner calculated to be understood by
the claimant:
(A) the specific reasons for the denial;
(B) specific references to pertinent provisions of the Plan on which the denial is
based;
(C) a description of any additional material or information necessary for the
claimant to perfect the claim and an explanation of why such material or
information is necessary; and
(D) an explanation of the procedure for review of denied claims.
8.4 Request for Review of Claim Denial.
Within 60 days after a claimant's receipt of written notification of the denial (in whole
or in part) of a claim, the claimant (or a duly authorized representative) upon written
- 17 -
application to the Administrator, delivered in person or by certified mail, postage
prepaid, may request a review of such denial, review pertinent documents, and
submit issues and comments in writing. The application shall state the name and
address of the claimant; the fact that the claimant is disputing the denial of the
claim; the date of the notice of denial; and the reasons, in clear and concise terms,
for disputing the denial.
8.5 Decision on Review of Denied Claim.
The Administrator's decision on review shall be written in a manner calculated to be
understood by the claimant, and shall include specific reasons for the decision and
specific references to the pertinent provisions of the Plan on which the decision is
based. The Administrator shall make a decision on review of a denied claim no
later than 60 days after receipt of the request for review, unless special
circumstances require an extension of time for processing. If an extension is
necessary, the Administrator shall give the claimant written notice of the extension
prior to the expiration of the initial 60-day period. If the Administrator fails to give
written notice of decision on review within the prescribed period, the denial shall be
deemed affirmed, and the claimant may exercise his or her right to legal remedy
pursuant to section 8.6.
8.6 Leaal Remedy.
Before pursuing a legal remedy, claimant shall first exhaust all claims, review and
appeals procedures required under the Plan.
- 18 -
ARTICLE IX
CESSATION OF COVERAGE
9.1 Cessation of Participation.
In the event that a Participant ceases to be an Eligible Employee for any reason
during the Plan Year, the Participant's election and Compensation reduction (if any)
relating to this Plan shall end. The Participant shall be entitled to reimbursement for
Employment Related Expenses incurred within the same Plan Year and before he
or she ceased to be an Eligible Employee.
9.2 Limits on Time and Amount of Reimbursement.
Reimbursements shall be made for any Plan Year under this article 9 only if the
Participant applies for such reimbursement in accordance with section 8.2 on or
before ninety (90) days following the close of the Plan Year. In the event of the
Participant's death, the Participant's spouse (or, if none, the Participant's executor
or administrator) may apply on the Participant's behalf for reimbursements permitted
under this article 9. No reimbursement under this article 9 shall exceed the
remaining balance, if any, in the Participant's Dependent Care Spending Account
for the Plan Year in which the expenses were incurred.
- 19 -
ARTICLE X
ADMINISTRATION
10.1 Appointment of the Administrator.
The Employer is hereby designated as the Administrator.
10.2 Powers and Authority/Action Conclusive.
Except as otherwise expressly provided in the Plan:
(A) The Administrator will have all powers necessary or helpful for the carrying
out of its responsibilities, and its decisions or actions in good faith in respect
to any matter hereunder will be conclusive and binding upon all parties
concerned.
(B) Without limiting the generality of the foregoing, the Administrator will have
the power to make rules and regulations for the administration of the Plan; to
construe all terms, provisions, conditions and limitations of the Plan; and to
determine the answers to all questions arising out of or in connection with the
provisions of the Plan or its administration in any and all cases in which the
Administrator deems such a determination advisable.
The foregoing list of powers is not intended to be complete or exhaustive, and the
Administrator will, in addition, have such powers as he or she may determine to be
necessary for the performance of his or her duties under the Plan.
10.3 Counsel and Agents.
The Administrator may employ such counsel (including legal counsel, who may be
counsel for the Employer) and agents and such clerical and other services as he
may require in carrying out the provisions of the Plan. The Administrator will be fully
protected in acting or refraining to act in accordance with the advice of legal or other
counsel.
10.4 Reliance on Information.
The Administrator and any of its officers, directors, and employees will be entitled to
rely upon any tables, valuations, certificates, opinions and reports furnished by any
accountant, trustee, insurance company, counsel, physician, dentist or other expert
who is engaged by the Administrator. The Administrator will be fully protected in
respect to any action taken or suffered by them in good faith reliance thereon.
- 20 -
10.5 Genuineness of Documents.
The Administrator and any of its officers, directors and employees will be entitled to
rely upon any notice, request, consent, letter, telegram or other paper or document
believed by them or any of them to be genuine and to have been signed or sent by
the proper person, and will be fully protected in respect of any action taken or
suffered by them in good faith in reliance thereon.
10.6 Proper Proof.
In any case in which the Administrator is required under the Plan to take action
upon the occurrence of any event, it will be under no obligation to take such action
unless and until proper satisfactory evidence of such occurrence has been received
by them.
10.7 Estoppel of Participants.
The Administrator may rely upon any certificate, statement or other representation
made to them by the Employer or by any Employee, Participant, spouse, or
Dependent with respect to any fact required to be determined under any provisions
of the Plan, and will not be liable on account of the payment of any moneys or the
doing of any act in reliance upon any such certificate, statement or other
representation. In the discretion of the Administrator:
(A) any such certificate, statement or other representation made by an Employee
or Participant will be conclusively binding upon such Employee or Participant,
spouse, and his Dependents, and such Employee, Participant, spouse, or
Dependents will thereafter and forever by estopped from disputing the truth
and correctness of such certificate, statement or other representation; and
(B) any such certificate, statement or other representation made by a
Participant's spouse or Dependent will be conclusively binding upon such
person, and such person shall thereafter and forever be estopped from
disputing the truth and correctness of such certificate, statement or other
representation.
10.9 Delegates.
The Administrator may designate other persons to carry out responsibilities under
the Plan and shall not be liable for the acts or omissions of such persons except as
provided by law.
-21 -
ARTICLE XI
AMENDMENT AND TERMINATION OF THE PLAN
11.1 Amendment.
The Employer may amend the Plan at any time, and from time to time, either
retroactively or prospectively, except as may be limited by applicable law.
11.2 Termination.
The Employer expects that this Plan will be maintained indefinitely. However,
continuance is not guaranteed. The Employer reserves the right to terminate the
Plan at any time with advance notice to Participants.
11.3 Expenses Incurred Prior to Termination.
If the Plan is terminated, the Participants' right to receive benefits and
reimbursements under the Plan for Dependent Care Assistance incurred prior to the
termination date shall not affected in any manner.
- 22 -
ARTICLE XII
MISCELLANEOUS
12.1 Indemnification by Employer.
To the fullest extent permitted by law, the Employer shall indemnify and hold
harmless the Administrator and Employees who perform duties under the Plan,
against all claims, losses, damages, expenses, and liabilities resulting from any
action or omission of any such person in connection with administering the Plan, as
long as such action or omission was at the time in good faith and carried forth with
proper diligence and care, and provided that the Employer determines in its
discretion that the Administrator or Employee did not commit gross negligence or
willful misconduct.
12.2 Funding.
All contributions to the Plan shall be considered general assets of the Employer.
12.3 Not an Employment Agreement.
The establishment of the Plan shall not be construed to constitute a contract
between the Employer and any Participant, or to be a consideration or inducement
for the employment of any Participant or Employee, or to confer upon any Employee
or Participant any legal right to be retained in the employ of the Employer. All
Employees will remain subject to discharge to the same extent as if the Plan had
never been adopted, and may be treated without regard to the effect such treatment
might have upon them under the Plan. Nothing in the Plan shall be deemed to be
an agreement, consideration, inducement, or condition of employment.
12.4 Titles and Headings.
The captions contained herein are inserted only as a matter of convenience and for
reference, and in no way define, limit, enlarge or describe the scope or intent of the
Plan, nor in any way shall affect the Plan or the construction of any provision
thereof.
12.5 Gender and Number.
Wherever used in this document, the singular shall include the plural, the plural
shall include the singular, the masculine shall include the feminine and neuter, the
feminine shall include the masculine and neuter, and the neuter shall include the
masculine and feminine, except where the context requires otherwise.
- 23 -
12.6 Amendments in Writing.
Any and all amendments to this Plan need to be in writing, and signed by a duly
authorized representative of the Employer, in order to be valid.
12.7 Severabilitv.
If any provision of the Plan is held invalid or unenforceable, its invalidity or its
inability to be enforced will not affect other provisions of the Plan, and the Plan will
be construed and enforced as if such provision had not been included therein.
12.8 Administrator Information.
Name and address of the Administrator:
City of Palm Desert
73-510 Fred Warding Drive
Palm Desert, CA 92260
Telephone number of the Administrator:
760-346-0611
Employer identification number of the Administrator:
95-2859459
12.9 Service of Legal Process.
City Attorney
73510 Fred Waring Drive
Palm Desert, CA 92260
12.10 Governing Law.
The Plan shall be construed in accordance with the laws of the state of California to
the extent not preempted by federal law.
- 24 -
SIGNATURE PAGE
IN WITNESS WHEREOF, the Employer has caused this Plan to be signed by its duly
authorized representative on the 26th day of June , 200 8.
CITY OF PALM DESERT
BY:
- 25 -
CITY OF PALM DESERT
HEALTH CARE SPENDING ACCOUNT PLAN
Amended and Restated Effective July 1, 2008
STATEMENT OF PURPOSE
This document describes the City of Palm Desert Health Care Spending Account Plan,
effective on July 1, 1999.
The Plan is intended to qualify as a "health care flexible spending arrangement" under
sections 125 and 105(h) of the Internal Revenue Code of 1986, as amended, and is to be
interpreted in a manner consistent with all relevant provisions of the Code. The Plan
operates in conjunction with the City of Palm Desert Section 125 Plan.
The purpose of the Plan is to provide participants with reimbursements of qualifying
medical care expenses, which are funded by participants with before -tax contributions.
1
ARTICLE I
DEFINITIONS
Whenever used herein, the following terms shall have the following meaning, unless a
different meaning is clearly required by the context:
1.1 Anniversary Date. The Anniversary Date shall mean the first day of any Plan
Year.
1.2 Annual Enrollment Period. The 30 day period during which an Eligible Employee
may make an election pursuant to section 3.3.
1.3 Change in Status. When facts and circumstances warrant, a change is deemed
to occur on the date of:
(A) a change in the Employee or Dependent's marital status, including marriage,
death of spouse, divorce, legal separation or annulment.
(B) the birth, placement for adoption or adoption of a Dependent child;
(C) the death of an Employee's spouse or Dependent child;
(D) the commencement or termination of employment of the Employee or
Employee's spouse or Dependent;
(E) the switching from part-time to full-time employment status; or visa versa, by
the Employee or the Employee's spouse;
(F) the taking of an unpaid leave of absence by the Employee or the Employee's
spouse;
(G) change in the Participant's eligibility for purposes of coverage under any
Employer -sponsored benefit plan offered through this Plan;
(H) a special enrollment pursuant to the Health Insurance Portability and
Accountability Act of 1996.
1.4 Code. Code shall mean the Internal Revenue Code of 1986, as amended.
1.5 Compensation. Compensation shall mean the total remuneration of a Participant,
including (but not limited to) wages, salary, overtime, bonuses, commissions, and
any other payment which is not an advance, loan or expense reimbursement. Each
Participant's Compensation shall be determined prior to taking into account the
Participant's salary reduction contributions under the Plan.
2
1.6 Dependent. Dependent shall mean any individual who is a tax dependent of the
Participant as defined in Code section 105(b) and the regulations issued under
Code section 106.
1.7 Effective Date. Effective Date shall mean the date that this Plan became effective,
which was July 1, 1999.
1.8 Election Period. Election Period shall mean the period of time in which a Participant
or Eligible Employee may enter, change, or terminate from the Plan.
1.9 Eligible Employee. Eligible Employee shall mean (a) any Employee who is regularly
scheduled to work a minimum of 20 hours per week and (b) any city council
member. Notwithstanding anything in the Plan to the contrary, the term "Eligible
Employee" shall not include Employees who are classified by the Employer as
temporary Employees, and Employees who are regularly scheduled to work less
than 20 hours per week.
1.10 Employee. Employee shall mean (a) any individual who is classified by the
Employer as an employee of the Employer and who is on the Employer's Form W-2
payroll, and (b) any elected official of the Employer; provided, that the person is not
classified by the Employer as a leased employee or contract worker..
1.11 Employer. Employer shall mean the City of Palm Desert
1.12 Grace Period. Means the two and a half month period of time following the
immediately preceding Plan Year during which a Participant may receive
payment or incur qualified benefit expenses and receive reimbursement under
the Plan for qualified benefit expenses but does not cause the Plan to be
considered to provide for deferred compensation
1.13 Health Care Spending Account. Health Care Spending Account shall mean the
bookkeeping account described in article IV.
1.14 Highly Compensated Individual. Highly Compensated Employee shall mean any
individual defined under Code section 105(h) as a "highly compensated individual."
1.15 Initial Election Period. The Initial Election Period shall be the thirty (30) days after
the effective date of the Plan. This Initial Election Period may be extended by the
Plan Administrator, at its sole discretion, upon written notice to employees.
1.16 Participant. Participant shall mean any Eligible Employee who elects to participate
in the Plan in accordance with article II.
1.17 Period of Coverage. Period of Coverage shall mean (i) a Plan Year, or (ii) the
portion of the Plan Year remaining after the effective date of an Eligible Employee's
3
election to participate in the Plan, or (iii) the portion of the Plan Year prior to a
Participant's termination from the Plan, whichever is applicable.
1.18 Plan. Plan shall mean the City of Palm Desert Health Care Spending Account Plan,
as set forth herein.
1.19 Plan Administrator. Plan Administrator shall be the entity designated as the Plan
Administrator in section 9.1 of the Plan.
1.20 Plan Year. Plan Year shall mean the period beginning January 1 and ending
December 31.
1.21 Qualifying Medical Care Expense. Qualifying Medical Care Expense shall mean an
expense incurred by a Participant, or by the spouse or Dependent of such
Participant, for medical care as defined in section 213(d) of the Code (including
without limitation amounts paid for hospital bills, doctor and dentist bills, and drugs),
but only to the extent that the Participant or other person incurring the expense is
not reimbursed (or entitled to reimbursement) for the expense through insurance or
otherwise (other than under the Plan). Qualifying Medical Care Expense does not
include any premium paid for coverage under any plan maintained by the Employer
or any other employer, or any expense incurred for qualified long term care services
as defined in section 7702B(c) of the Code. Qualifying Medical Care Expenses
shall be deemed to be incurred at the time the services to which the expenses relate
are rendered.
1.22 Reauired Contribution. Required Contribution shall mean the Participant's coverage
amount for the Plan Year, divided by the number of regular Compensation
payments for the remaining Period of Coverage.
1.23 Section 125 Plan. Section 125 Plan shall mean the City of Palm Desert Section 125
Plan, as may be amended from time to time.
4
ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.1 Eligibility.
All Employees shall become eligible to participate in the Plan upon satisfying the
definition of an Eligible Employee.
2.2 Entry Date.
Eligible Employees begin participating in the Plan on the first day of the month
following their first day of active service for the Employer.
2.3 Employee Election.
All Employees who meet the eligibility requirements set forth in section 2.1 may
elect, during the appropriate Election Period, to become a Participant by completing
the salary reduction agreement specified by the Administrator, and submitting the
completed agreement to the Administrator. The agreement designates whether the
Employee desires to elect Optional Benefit Coverages under the Plan.
2.4 Termination of Participation.
An individual shall cease to be a Participant upon the occurrence of any of the
following:
(A) the date he or she ceases to be an Eligible Employee;
(B) the date the Plan is terminated;
(C) the last day of the Plan Year in which he or she ceases active employment
with the Employer for any reason, including retirement, resignation,
involuntary termination, layoff, leave of absence, disability or death; or
(D) the date on which he or she fails to make any Required Contribution
(including payment by salary reduction).
2.5 Reinstatement of Former Participant.
If an individual ceases to be a Participant, he or she shall become a Participant
again as of the date he or she once more becomes an Eligible Employee, and
makes an election under the Section 125 Plan to receive benefits under this Plan, or
if such election is reinstated under the Section 125 Plan.
2.6 Participation of Spouses or Dependents.
5
If and to the extent required by law (including, without limitation, section 4980B of
the Code and regulations thereunder), in the event of a Participant's death,
termination, divorce or legal separation from his or her spouse, a Dependent child
ceasing to be a Dependent child under the Plan, or other events prescribed by law,
coverage under this Plan shall be made available to the spouse or Dependent of a
Participant or former Participant in lieu of (or in addition to) the Participant. In that
event, such spouse or Dependent shall be treated as a Participant under this Plan,
but only to such extent and for such period as the law requires. No salary reduction
agreement shall be required for such a spouse or Dependent, but Required
Contributions must be paid to the Plan Administrator on a monthly basis (or within
such other limit as may be provided for by law), and coverage shall cease upon
nonpayment of any such Required Contribution.
6
ARTICLE III
ELECTIONS
3.1 Election of Benefits.
An Eligible Employee shall have the right to elect the benefits available under article
Iv.
During the applicable initial election period, as determined under this article III, an
Employee who elects this benefit shall enter into a written salary reduction
agreement authorizing and directing the Employer to reduce his or her
Compensation in an amount equal to the amount determined pursuant to section
5.1 and to credit such amount to the Participant's Health Care Spending Account.
Except as provided in section 3.5, a salary reduction agreement may not be
changed during the Plan Year.
3.2 Initial Election.
An Employee who becomes eligible to participate must complete, sign and file an
election form with the Plan Administrator during the 30-day period beginning on the
date he or she is first eligible pursuant to section 2.1. Subject to section 3.3, the
election shall take effect as soon as administratively practicable after the benefit
election form is filed with the Plan Administrator, but in no event earlier than the first
day of participation, and shall continue in effect for the Plan Year until the
Participant submits a new election in accordance with either sections 3.3 or 3.5.
3.3 Election.
To elect or change benefits, Participants and eligible Employees may complete,
sign and file a benefit election form and salary reduction agreement during the Initial
Election Period or Annual Enrollment Period.
3.4 Failure to Return an Election Form.
If an Employee fails to return a completed Election Form to the Plan Administrator
on or before the specified due date for the initial Plan Year of the Plan, or the Plan
Year in which he or she first becomes an eligible Employee, he or she shall be
deemed not to be a Participant for the first Plan Year; for subsequent years, the
Employee shall be deemed not to be a Participant absent a completed Election
Form. As such, the Employee shall also be deemed not to have agreed to a
reduction of his or her Compensation for the Plan Year.
7
3.5 Changes in Status.
A Participant may change his benefit election and any salary reduction agreement
referenced in section 3.1, by completing, signing and filing a new election form and
salary reduction agreement with the Plan Administrator within thirty (30) days of the
occurrence of a Change in Status, provided such new election is on account of and
consistent with the Change in Status.
The Participant shall be responsible for notifying the Plan Administrator of a Change
in Status and for requesting a benefit election form and salary reduction agreement.
Elections made pursuant to this section 3.5 shall take effect on the first day of the
month after the date the new benefit election form and salary reduction agreement
is filed with the Plan Administrator, but in no event earlier than the earlier of:
(A) the first day of the first pay period beginning immediately after the new
benefit election form is filed with the Plan Administrator; or
(B) the occurrence of the Change in Status.
Subject to a subsequent Change in Status and proper election, as previously
described, the new election shall continue in effect through the last day of the Plan
Year within which such election is made.
Notwithstanding any other provision of this Plan, the Plan Administrator may (a)
permit a Participant to revoke (and subsequently reinstate) his or her election to
receive reimbursements of Qualifying Medical Care Expenses during the Plan Year,
and (b) adjust a Participant's Required Contribution as a result of a revocation or
reinstatement to the extent the Plan Administrator deems necessary or appropriate
to assure the Plan's compliance with the provisions of the Family and Medical
Leave Act of 1993 and any regulations pertaining thereto.
8
ARTICLE IV
HEALTH CARE SPENDING ACCOUNTS
4.1 Health Care Spending Accounts.
The Plan Administrator shall establish and maintain a Health Care Spending
Account for each Participant who elects the reimbursement benefits under article III.
4.2 Crediting Accounts.
Amounts shall be credited and allocated to the Participant's Health Care Spending
Account in accordance with articles V and VI.
4.3 Debiting Accounts.
Health Care Spending Accounts shall be debited in accordance with articles V and
VI.
4.4 No Funding of Accounts.
A Participant's Health Care Spending Account shall be a bookkeeping mechanism
only and no money shall actually be paid into nor shall any interest be credited to, or
paid on, amounts credited to the Participant's Health Care Spending Account. No
assets or funds shall be paid to, held in or invested in any separate trust.
4.5 Plan Participants.
A Participant shall be eligible to receive reimbursement for Qualifying Medical Care
Expenses in a Plan Year up to the amount elected for coverage in the Participant's
Health Care Spending Account.
If an Employee becomes a Participant other than on the first day of the Plan Year,
the amount elected for coverage in the Participant's Health Care Spending Account
shall be prorated by multiplying it by a fraction, the numerator of which is the
number of months the Participant will participate in such Plan Year, and the
denominator of which is twelve (12).
4.6 Reimbursement Requests.
The Participant must submit, to the Plan Administrator, a written request for
reimbursement for his Qualifying Medical Care Expenses from his Health Care
Spending Account on a form provided by the Plan Administrator along with such
evidence as the Plan Administrator deems necessary as to the amount, nature and
payment of such expenses. Such request must be submitted by the end of ninety
-9-
days following the close of the Grace Period and Plan Year for which the benefit
election is effective and during which the expenses were incurred.
4.7 Limitation on Reimbursement.
No amounts shall be reimbursed pursuant to this Plan with respect to Qualifying
Medical Care Expense to the extent that the Participant incurring the Expense is
reimbursed for it by insurance or otherwise. If a Participant receives benefits under
this Plan and is reimbursed for the Qualifying Medical Care Expense giving rise to
such benefits from any other source at any time, he shall remit such benefits to the
Plan Administrator to the extent of such reimbursement.
4.8 Timing of Reimbursements.
Reimbursement of Qualifying Medical Care Expenses to a Participant shall be paid
from the general assets of Employer as soon as administratively practicable after
the required forms and documentation have been received by the Plan
Administrator under procedures established pursuant to the Plan.
4.9 Special Limitations on Qualifying Medical Care Expenses.
This Plan covers only Qualifying Medical Care Expenses incurred during the period
for which the Participant has elected to have funds allocated to his Health Care
Spending Account. Qualifying Medical Care Expenses shall be considered incurred
when the medical care is provided and not when the Participant is formally billed,
charged for or pays the Expense.
4.10 Maximum Amount.
A Participant may not elect to have more than $8,770 credited to the Health Care
Spending Account for each Plan Year.
- 10 -
ARTICLE V
CREDITS AND DEBITS TO ACCOUNTS
5.1 Salary Reduction Authorization.
During the applicable election period determined under article III, each Eligible
Employee shall enter into a salary reduction agreement with the Employer which
shall provide for a reduction in the Participant's Compensation in an amount equal
to the amount determined under the Section 125 Plan.
The Plan Administrator will provide for, and keep records of, such salary reduction
arrangements.
5.2 Change of Election.
Except as provided in section 3.5, a Participant's benefit or salary reduction election
cannot be changed during the Plan Year.
5.2 Forfeiture of Unused Spending Account Benefits.
Any amount allocated to a Health Care Spending Account, and not applied to
provide the elected reimbursement from such Account ninety days following the end
of the applicable Grace Period for expenses incurred during such Plan Year, or
preceding Plan Year shall be forfeited by the Participant.
ARTICLE VI
REIMBURSEMENTS
6.1 Employer Contribution.
In accordance with a Participant's election under article III of this Plan, the Employer
shall credit the appropriate amount to the Participant's Health Care Spending
Account. The Health Care Reimbursement benefit elected by a Participant shall be
paid from the Employer's general assets; no assets or funds shall be paid or held or
invested in a separate trust; and no interest shall be credited to or paid on any
amount determined under this article VI.
6.2 Health Care Reimbursement Benefit.
This Plan provides reimbursement of health care expenses, of up to $8,770 per
year.
(A) Reimbursement for health care expenses will be made only to specifically
reimburse the Participant for expenses incurred during the Grace Period or
preceding Plan Year. The Participant may only obtain reimbursement of
documented Qualifying Medical Care Expenses. Reimbursement of such
expenses is limited to such amount as the Participant elects to be allocated
to his Health Care Spending Account.
(B) Qualifying Medical Care Expenses reimbursed under the Plan must have
been incurred during the period the Participant was participating in the Plan.
Expenses are treated as incurred when the services eligible for
reimbursement are rendered.
6.3 Claim Forms and Payment of Reimbursement Benefits.
The Participant must submit to the Plan Administrator, a request for reimbursement
from his Health Care Spending Account on the form or forms provided for such
purpose by the Plan Administrator and in accordance with the terms of this Plan and
such procedures established by the Plan Administrator. The form must indicate:
(A) the amount, date and nature of each expense
(B) the name of the person, organization or entity to which the expense was or
is to be paid;
(C) the name of the person for whom the expense was incurred and, if such
person is not the Participant requesting the benefit, the relationship of such
person to the Participant;
(D) the amount recovered or expected to be recovered, under any insurance
arrangement or other plan, with respect to the expense;
- 12 -
(E) such other information as the Plan Administrator shall from time to time
require; and
(F) a statement that the expense (or the portion thereof for which
reimbursement is sought under the Plan) has not been reimbursed or is not
reimbursable from any other source.
Payments shall be made as soon as administratively practicable after the required
forms and documentation have been received by the Plan Administrator, as
described in article VII of this document.
6.4 Reimbursements.
Reimbursement of Qualifying Medical Care Expenses under this Plan shall be from
the general assets of the Employer. The Health Care Spending Account will not
represent actual Participant or Employer deposits into any fund. A Participant shall
have no rights to any particular assets of the Employer. A Participant's right to
reimbursement under the Plan shall be limited to the amount of salary reduction of
the Participant allocated to this Plan.
6.4 Rights of Participants.
Any Health Care Spending Account established hereunder shall be for the
administrative convenience of the Plan Administrator. Nothing in this Plan shall
require the Employer to segregate or set aside any portion of its assets. Nor shall
the establishment of any Health Care Spending Account hereunder or of any other
administrative practice vest any Participant with title in the assets of the Employer or
entitle him to benefits, except as expressly provided in the Plan.
6.5 Nonafienation Clause.
Any rights or benefits under the Plan may not be anticipated, assigned (either at law
or equity), transferred or alienated by the Participant in any manner. Such
prohibition on alienation shall be a precondition for benefits under the Plan.
- 13 -
ARTICLE VII
PAYMENT OF CLAIMS
7.1 General.
This article VII applies only to claims for benefits under this Plan, not to claims
under any other health and/or welfare benefit plan(s) offered through the Section
125 Plan
7.2 Filing and Initial Determination of Claim.
Any Employee, beneficiary, or his duly authorized representative may file a claim for
a Plan benefit to which the claimant believes is entitled. Such claim must be in
writing and delivered to the Plan Administrator, in person or by mail, postage
prepaid. Within 30 days after receipt of such claim, the Plan Administrator shall
notify the claimant, by mail, postage prepaid, of the granting or denial, in whole or in
part, of such claim, unless special circumstances require an extension of time for
processing the claim. In no event may the extension exceed 90 days from the end
of the initial 30-day period. If such extension is necessary, the claimant shall be
given written notice to this effect prior to the expiration of the initial 30 day period.
The Plan Administrator shall have full discretion to deny or grant a claim in whole or
in part. If notice of the denial of a claim is not furnished in accordance with this
section, the claim shall be deemed denied and the claimant shall be permitted to
exercise his or her right to review under sections 7.4 and 7.5.
7.3 Duty Upon Denial of Claim.
The Plan Administrator shall provide a claimant who is denied a claim for benefits
with written notice setting forth the following, in a manner calculated to be
understood by the claimant:
(A) the specific reasons for the denial;
(B) specific references to pertinent provisions of the Plan on which the denial is
based;
(C) a description of any additional material or information necessary for the
claimant to perfect the claim and an explanation of why such material or
information is necessary; and
(D) an explanation of the procedure for review of denied claims.
7.4 Reauest for Review of Claim Denial.
If there is an adverse benefit determination, notice to the claimant or authorized
representative will be provided in writing within a reasonable period but not later
than 30 days after receipt of the claim. However, this period may be extended one
- 14 -
time only by the Plan for up to an additional 15 days if the Plan determines that
such an extension is necessary due to matters beyond its control, and it provides
written notice (prior to the end of the original 30-day period) of the circumstances
requiring the extension and the date by which the plan expects to render a decision.
If an extension is necessary due to failure to submit the information necessary to
decide the claim, the notice of extension will specifically describe the required
information and unresolved issues that prevent claim determination. The claimant
or authorized representative will be given 45 days from receipt of the notice to
provide the necessary information.
7.5 Legal Remedy.
Before pursuing a legal remedy, claimant shall first exhaust all claims, review and
appeals procedures required under the Plan.
- 15 -
ARTICLE VIII
CESSATION OF COVERAGE
8.1 Cessation of Participation.
In the event that a Participant ceases to be a Participant in this plan for any reason
during the Plan Year, the Participant's election and compensation reduction (if any)
relating to this Plan shall continue through the end of the Plan Year. The Participant
shall be entitled to reimbursement for Qualifying Medical Care Expenses incurred
within the same Plan Year and/or during the subsequent Grace Period and before
he or she ceased to be a participant.
8.2 Continuation of Coverage.
If and to the extent required by law (including, without limitation, sections 105, 125,
and 4980B of the Code and regulations thereunder), in the event a Participant
ceases to be an Eligible Employee and undertakes to pay Required Contributions to
the Plan Administrator thereafter on a monthly basis (or within such other time limit
as may be provided for by law), coverage under the Plan shall continue so long as
such Required Contributions are paid, but not beyond the end of the period for
which such coverage is required by law. In addition, the former Participant shall be
treated as a Participant under the Plan to such extent as is required by law, and
shall be entitled to reimbursement for Qualifying Medical Care Expenses incurred
during such period of continued coverage, subject to section 8.3.
8.3 Limits on Time and Amount of Reimbursement.
Reimbursements shall be made for any Plan Year including its Grace Period
under this Article 7 only if the Participant applies for such reimbursement in
accordance with Section 6.1 on or before ninety (90) days following the close of
the Grace Period. In the event of the Participant's death, the Participant's
spouse (or, if none, the Participant's executor or administrator) may apply on the
Participant's behalf for reimbursements permitted under this Article 7. No
reimbursement under this Article 7 shall exceed the remaining balance, if any, in
the Participant's Health Care Spending Account for the Plan Year or subsequent
Grace Period in which the expenses were incurred.
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ARTICLE IX
ADMINISTRATION
9.1 Appointment of the Plan Administrator.
The Employer is hereby designated as the Plan Administrator.
9.2 Powers and Authoritv/Action Conclusive.
Except as otherwise expressly provided in the Plan:
(A) The Plan Administrator will have all powers necessary or helpful for the
carrying out of its responsibilities, and its decisions or actions in good faith in
respect to any matter hereunder will be conclusive and binding upon all
parties concerned.
(B) Without limiting the generality of the foregoing, the Plan Administrator will
have the power to make rules and regulations for the administration of the
Plan; to construe all terms, provisions, conditions and limitations of the Plan;
and to determine the answers to all questions arising out of or in connection
with the provisions of the Plan or its administration in any and all cases in
which the Plan Administrator deems such a determination advisable.
The foregoing list of powers is not intended to be complete or exhaustive, and the
Plan Administrator will, in addition, have such powers as he or she may determine
to be necessary for the performance of his or her duties under the Plan.
9.3 Counsel and Aaents.
The Plan Administrator may employ such counsel (including legal counsel, who may
be counsel for the Employer) and agents and such clerical and other services as he
may require in carrying out the provisions of the Plan. The Plan Administrator will
be fully protected in acting or refraining to act in accordance with the advice of legal
or other counsel.
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9.4 Reliance on Information.
The Plan Administrator and any of its officers, directors, and employees will be
entitled to rely upon any tables, valuations, certificates, opinions and reports
furnished by any accountant, trustee, insurance company, counsel, physician,
dentist or other expert who is engaged by the Plan Administrator. The Plan
Administrator will be fully protected in respect to any action taken or suffered by
them in good faith reliance thereon.
9.5 Genuineness of Documents.
The Plan Administrator and any of its officers, directors and employees will be
entitled to rely upon any notice, request, consent, letter, telegram or other paper or
document believed by them or any of them to be genuine and to have been signed
or sent by the proper person, and will be fully protected in respect of any action
taken or suffered by them in good faith in reliance thereon.
9.6 Proper Proof.
In any case in which the Plan Administrator is required under the Plan to take action
upon the occurrence of any event, it will be under no obligation to take such action
unless and until proper satisfactory evidence of such occurrence has been received
by them.
9.7 Estoppel of Participants.
The Plan Administrator may rely upon any certificate, statement or other
representation made to them by the Employer or by any Employee, Participant,
spouse, or Dependent with respect to any fact required to be determined under any
provisions of the Plan, and will not be liable on account of the payment of any
moneys or the doing of any act in reliance upon any such certificate, statement or
other representation. In the discretion of the Plan Administrator:
(A) any such certificate, statement or other representation made by an Employee
or Participant will be conclusively binding upon such Employee or Participant,
spouse, and his Dependents, and such Employee, Participant, spouse, or
Dependents will thereafter and forever by estopped from disputing the truth
and correctness of such certificate, statement or other representation; and
(B) any such certificate, statement or other representation made by a
Participant's spouse or Dependent will be conclusively binding upon such
person, and such person shall thereafter and forever be estopped from
disputing the truth and correctness of such certificate, statement or other
representation.
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9.8 Service as a Fiduciary.
The Plan Administrator shall act as a fiduciary. Any fiduciary under the Plan may
serve in more than one fiduciary capacity with respect to the Plan.
9.9 Delegates.
The Plan Administrator may designate other persons to carry out fiduciary and other
responsibilities under the Plan and shall not be liable for the acts or omissions of
such persons except as provided by law.
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ARTICLE X
AMENDMENT AND TERMINATION OF THE PLAN
10.1 Amendment.
The Employer may amend the Plan at any time, and from time to time, either
retroactively or prospectively, except as may be limited by applicable law.
10.2 Termination.
The Employer expects that this Plan will be maintained indefinitely. However,
continuance is not guaranteed. The Employer reserves the right to terminate the
Plan at any time with advance notice to Participants.
10.3 Expenses Incurred Prior to Termination.
If the Plan is terminated, the Participants' right to receive benefits and
reimbursements under the Plan for Qualifying Medical Care Expenses incurred prior
to the termination date shall not be affected in any manner.
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ARTICLE XI
MISCELLANEOUS
11.1 Indemnification by Employer.
To the fullest extent permitted by law, the Employer shall indemnify and hold
harmless the Plan Administrator and Employees who perform duties under the Plan,
against all claims, losses, damages, expenses, and liabilities resulting from any
action or omission of any such person in connection with administering the Plan, as
long as such action or omission was at the time in good faith and carried forth with
proper diligence and care, and provided that the Employer determines in its
discretion that the Plan Administrator or Employee did not commit gross negligence
or willful misconduct.
11.2 Funding.
All contributions to the Plan shall be considered general assets of the Employer.
11.3 Not an Employment Agreement.
The establishment of the Plan shall not be construed to constitute a contract
between the Employer and any Participant, or to be a consideration or inducement
for the employment of any Participant or Employee, or to confer upon any Employee
or Participant any legal right to be retained in the employ of the Employer. All
Employees will remain subject to discharge to the same extent as if the Plan had
never been adopted, and may be treated without regard to the effect such treatment
might have upon them under the Plan. Nothing in the Plan shall be deemed to be
an agreement, consideration, inducement, or condition of employment.
11.4 Titles and Headings.
The captions contained herein are inserted only as a matter of convenience and for
reference, and in no way define, limit, enlarge or describe the scope or intent of the
Plan, nor in any way shall affect the Plan or the construction of any provision
thereof.
11.5 Gender and Number.
Wherever used in this document, the singular shall include the plural, the plural
shall include the singular, the masculine shall include the feminine and neuter, the
feminine shall include the masculine and neuter, and the neuter shall include the
masculine and feminine, except where the context requires otherwise.
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11.6 Amendments in Writing.
Any and all amendments to this Plan need to be in writing, and signed by a duly
authorized representative of the Employer, in order to be valid.
11.7 Severabilitv.
If any provision of the Plan is held invalid or unenforceable, its invalidity or its
inability to be enforced will not affect other provisions of the Plan, and the Plan will
be construed and enforced as if such provision had not been included therein.
11.8 Plan Administrator Information.
Name and address of the Plan Administrator:
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260
Telephone number of the Plan Administrator:
760-346-0611
Employer identification number of the Plan Administrator:
95-2859459
11.10 Service of Legal Process.
City Attorney
73510 Fred Waring Drive
Palm Desert, CA 92260
11.11 Governing Law.
The Plan shall be construed in accordance with the laws of the state of California to
the extent not preempted by federal law.
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SIGNATURE PAGE
IN WITNESS WHEREOF, the Employer has caused this Plan to be signed by its duly
authorized representative on the 26th day of June , 200 8.
City of Palm Desert
BY:
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