CC RESOLUTION 4998RESOLUTION NO. 4998
A RESOLUTION TO APPROVE AND IMPLEMENT THE
CITY OF EL SEGUNDO FLEXIBLE BENEFITS PLAN,
AMENDED OCTOBER 1, 2016
The City Council of the City of El Segundo does resolve as follows:
Section 1: The City of El Segundo Flexible Benefits Plan, a form of amended Cafeteria Plan,
including a Dependent Care Flexible Spending Account and Health Flexible Spending Account
revised to become effective October 1, 2016 (Plan) is attached hereto as Exhibit A.
The Plan, including any recommended revisions by legal counsel, to become effective October 1,
2016, is hereby approved and adopted;
Section1112: The City Manager or designee is hereby authorized and directed to take action
necessary to implement the Plan, including designating an Administrator for the Plan, or one or
more components of the Plan.
The Administrator shall be instructed to take such actions that are deemed necessary and proper in
order to implement the Plan and/or its components thereunder, and to set up adequate accounting
and administrative procedures to provide benefits under the Plan and/or its components.
Section 3: The City Clerk is directed to certify the adoption of this Resolution; record this
Resolution in the book of the City's original resolutions, and make a minute of this adoption of the
Resolution in the City Council's records and minutes of this meeting.
Section 4: This Resolution will become effective immediately upon adoption.
PASSED AND ADOPTED this 20th day of September, 2016.
k7t,��'n * Fuentes, Mayor
ATTEST:
By" rid w: ..'� ?'
Tracy ? -av ,t Yity f;lerk
APPR (') "1 D AS TO FORM �,,, �
By:
"
— M, irk" 1:) e
y Attorney
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) SS
CITY OF EL SEGUNDO 1
I, Tracy Weaver, City Clerk of the City of El Segundo, California, do hereby certify that the whole
number of members of the City Council of said City is five; that the foregoing Resolution No.
4998 was duly passed, approved and adopted by said City Council at a regular meeting held on the
20th day of September, 2016, approved and signed by the Mayor, and attested to by the City Clerk,
by the following vote:
AYES: Mayor Fuentes, Mayor Pro Boyles, Council Member Brann, Council
Member Pirsztuk, Council Member Dugan
ABSENT:
ABSTAIN:
WITNESS MY HAND THE OFFICIAL SEAL OF SAID CITY this 6th day of December, 2016.
Yt
° T cy eaver, d f " C''
I "wt1 City of El 'Se tido
California
2
EXHIBIT A
CITY OF EL SEGUNDO FLEXIBLE BENEFITS PLAN
ARTICLE I
DEFINITIONS
ARTICLE II
PARTICIPATION
2.1
ELIGI BILITY ................ ............................... .. ..,,... ......... ......... ....,,.., ---- ...,,... ,,,.,,.,,.,,4
2.2
EFFECTIVE DATE OF PARTICIPATION. ....... ......... . - ............... .. ..,,.,.. ...... .,.4
2.3
APPLICATION TO PARTICIPATE ................................................................... ..............................4
2.4
TERMINATION OF PARTICIPATION ...... ....... ....... ........ 5
2.5
CHANGE OF EMPLOYMENT STATUS ......................................................... ............................... 5
2.6
TERMINATION OF EMPLOYMENT ............................................................. ............................... 6
2.7
DEATH .......................... ............................... ................. - -., ,.,,.. .....,,,. .,......,, ....,,.. ,.,.,......,6
ARTICLE III
CONTRIBUTIONS TO THE PLAN
3.1 SALARY REDIRECTION ................. .............................. - .....,,, ,,,.... ,..,,....,,..... ,... .,,,.,.,7
3.2 APPLICATION OF CONTRIBUTIONS ............... - ........ .,.,...,........,,................. .... --- ... .,,,...,,.,,,,.7
3.3 PERIODIC CONTRIBUTIONS ......................................................................... ..............................7
3.4 EMPLOYER AND PARTICIPANT CONTRIBUTIONS ................................ ............................... 8
ARTICLE IV
BENEFITS
4.1 BENEFIT OPTIONS ..... ............................... ......w., .., ,.- ........ -.,, .... ,, ,,, ,, ...,,,, , ....., 8
4.2 HEALTH FLEXIBLE SPENDING ACCOUNT BENEFIT ................... ................ - ...... .,................ 9
4.3 DEPENDENT CARE FLEXIBLE SPENDING ACCOUNT BENEFIT ........... ..............................9
4.4 HEALTH INSURANCE BENEFIT ...................... ...,.. ......... ........ -- 9
4.5 DENTAL INSURANCE BENEFIT ......................................................... ............ ..........,............. ,...10
4.6 NONDISCRIMINATION REQUIREMENTS ................................................. ............................... 11
ARTICLE V
PARTICIPANT ELECTIONS
5.1 INITIAL ELECTIONS ........... .................... ............................... ..................... . -..... ,,..,..,.12
5.2 SUBSEQUENT ANNUAL ELECTIONS ........... ........ ---- ....... -- ...... ,....,..., ,.,,....,,....,....,.,,,.....12
5.3 FAILURE TO ELECT ....................... ......... --- ........ ,,...,., .,.....,. ,,... -- ....,. - -..... ...... ..... 12
5.4 CHANGE IN STATUS ......... ............ ........ ................ .. - .......... ,,..,, ..,,..,.,.12
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ARTICLE VI
HEALTH FLEXIBLE SPENDING ACCOUNT
6.1 ESTABLISHMENT OF PLAN ....................................................................... ............................... 17
6.2 DEFINITIONS ....................... --- ...... ...................... ...... ....,,... .,....... ,,........17
6.3 FORFEITURES--. - ... --- ......................... ........ ......... . . ....... ......... 19
6.4 LIMITATION ON ALLOCATIONS ........... ......... ......... ..........., ....... ........ .......... 19
6.5 NONDISCRIMINATION REQUIREMENTS ................................................ ............................... 19
6.6 COORDINATION WITH CAFETERIA PLAN ...,. ....... ......... ......... ......... ......... .........20
6.7 HEALTH FLEXIBLE SPENDING ACCOUNT CLAIMS ............................... .............................20
6.8 QUALIFIED RESERVIST DISTRIBUTIONS ......................................... -- ........... ,.....,.,.,.......... 21
ARTICLE VII
DEPENDENT CARE FLEXIBLE SPENDING ACCOUNT
7.1
ESTABLISHMENT OF ACCOUNT ...... ............... . ......... ............. ............................... ...........23
7.2
DEFINITIONS ....................................... ............................... ............................. ..._..... ...........23
32
7.3
DEPENDENT CARE FLEXIBLE SPENDING ACCOUNTS ......................... .............................25
32
7.4
INCREASES IN DEPENDENT CARE FLEXIBLE SPENDING ACCOUNTS .... ........................25
32
7.5
DECREASES IN DEPENDENT CARE FLEXIBLE SPENDING ACCOUNTS ..........................
25
7.6
ALLOWABLE DEPENDENT CARE REIMBURSEMENT-. ..... ...... --- ... .
25
7.7
ANNUAL STATEMENT OF BENEFITS .................. ............................... ......... ....... ......,...25
7.8
FORFEITURES ........................................................ --- ...... ................................ ---- ....... .,....,.,,.
25
7.9
LIMITATION ON PAYMENTS .................... ...... .... ......... ......... ....... ,,...... ........... ........,...,x.....,......26
7.10
NONDISCRIMINATION REQUIREMENTS.--- .. ...... ..... ........ ......
26
7.11
COORDINATION WITH CAFETERIA PLAN ............. ...... .. ................... .......... ..........27
7.12
DEPENDENT CARE FLEXIBLE SPENDING ACCOUNT CLAIMS ...... ...............................
27
ARTICLE VIII
BENEFITS AND RIGHTS
8.1 CLAIM FOR BENEFITS ..................... ........................,,,..,, ... ,.,...... ,.....,,. ......,....28
8.2 APPLICATION OF BENEFIT PLAN SURPLUS ............ ......... ........ 30
ARTICLE IX
ADMINISTRATION
9.1
PLAN ADMINISTRATION ............ ............................... , ., ........ ......... .... ........ ,.. ........ ...........30
9.2
EXAMINATION OF RECORDS ................. ......... ................... ......... ,,,.., .,.,....,.„
32
9.3
PAYMENT OF EXPENSES ............ ......... ......... ......... ......... ......... ......... ......... ............
32
9.4
INSURANCE CONTROL CLAUSE .............................................................. ...............................
32
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9.5 INDEMNIFICATION OF ADMINISTRATOR ...... ......... .., ............... ...... .. ... ...—................ 32
ARTICLE X
AMENDMENT OR TERMINATION OF PLAN
10.1 AMENDMENT .................................. ....... ......... ......... ........... ......... 32
10.2 TERMINATION .... ......... ............ ...... . .............. ..... ........ ......... ,.........33
ARTICLE XI
MISCELLANEOUS
11.1
PLAN INTERPRETATION ............. ............................... ......... ......... ........ ......... ......... 33
11.2
GENDER AND NUMBER...... .... ......... ......... ........... ....... .......... ......... ......... ..........3:3
11.3
WRITTEN DOCUMENT. . ......... ................ ............. . ........ ................... ...................33
11.4
EXCLUSIVE BENEFIT ...... . ....... .......... ......... .......... .......... ......... ..,......
34
11.5
PARTICIPANT'S RIGHTS .......... .................. ..............., .., ..........,........ ....................
34
11.6
ACTION BY THE EMPLOYER ................................................................... .............................34
11.7
EMPLOYER'S PROTECTIVE CLAUSES ................................................... .............................34
11.8
NO GUARANTEE OF TAX CONSEQUENCES ....................................... ...............................
34
11.9
INDEMNIFICATION OF EMPLOYER BY PARTICIPANTS ................. ...............................
35
11.10
FUNDING ... ......... ......... ......... ......... ......... ......... ......... .......... ................... ..........35
I.I I
GOVERNING LAW ..................... ......... ... ..... ...... ................... _.......... ...................,......,..35
11.12
SEVERABILITY ............... ........................... .................,...... .....,... ...............,....,........35
1 1.13
CAPTIONS... ......... ..... .... ......... ......... ......... .................... ................................. ...........
36
1 L14
CONTINUATION OF COVERAGE ( COBRA) ..................n,........ ........... .... .,............... .... ..... ...
36
11.15
FAMILY AND MEDICAL LEAVE ACT (FMLA)........ .. ........ ....... ........ ........
36
11.16
HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA) ...... —.
36
11.17
UNIFORM SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT
(USERRA) ................................................................................................... ...............................
36
11.18
COMPLIANCE WITH HIPAA PRIVACY STANDARDS ............ ..... ... ..... ............................ ....
36
11.19
COMPLIANCE WITH HIPAA ELECTRONIC SECURITY STANDARDS ...........................39
11.20
MENTAL HEALTH PARITY AND ADDICTION EQUITY ACT ............. .............................39
11.21
GENETIC INFORMATION NONDISCRIMINATION ACT ( GINA) ................. .....................39
1 1.22
WOMEN'S HEALTH AND CANCER RIGHTS ACT ............. ........ .... ... ...... ............. ,.,...,........40
11.23
NEWBORNS' AND MOTHERS' HEALTH PROTECTION ACT .............. .............................40
CITY OF EL SEGUNDO FLEXIBLE BENEFITS PLAN
INTRODUCTION
The Employer has amended this Plan effective October 1, 2016, to recognize the
contribution made to the Employer by its Employees. Its purpose is to reward them by providing
benefits for those Employees who shall qualify hereunder and their Dependents and
beneficiaries. The concept of this Plan is to allow Employees to choose among different types of
benefits based on their own particular goals, desires and needs. This Plan is a restatement of a
Plan which was originally effective on March 1, 1989, and most recently amended effective
January 1, 2011. The Plan shall be known as City of El Segundo Flexible Benefits Plan (the
"Plan ").
The intention of the Employer is that the Plan qualify as a "Cafeteria Plan" within the
meaning of Section 125 of the Internal Revenue Code of 1986, as amended, and that the benefits
which an Employee elects to receive under the Plan be excludable from the Employee's income
under Section 125(a) and other applicable sections of the Internal Revenue Code of 1986, as
amended.
ARTICLE I
DEFINITIONS
1.1 "Administrator" means the Employer unless another person or entity has been
designated by the Employer pursuant to Section 9.1 to administer the Plan on behalf of the
Employer. If the Employer is the Administrator, the Employer may appoint any person,
including, but not limited to, the Employees of the Employer, to perform the duties of the
Administrator. Any person so appointed shall signify acceptance by filing written acceptance
with the Employer. Upon the resignation or removal of any individual performing the duties of
the Administrator, the Employer may designate a successor.
1.2 "Benefit" or "Benefit Options" means any of the optional benefit choices
available to a Participant as outlined in Section 4.1.
1.3 "Cafeteria Plan Benefit Dollars" means the amount available to Participants to
purchase Benefit Options as provided under Section 4.1. Each dollar contributed to this Plan
under Article III shall be converted into one Cafeteria Plan Benefit Dollar.
1.4 "Code" means the Internal Revenue Code of 1986, as amended or replaced from
time to time.
1.5 "Compensation" means wages or salary paid to an Employee by the Employer
as reported in Box 1 of Form W -2, and also includes: (a) salary reduction amounts under
arrangements described in sections 125 and 132(1) of the Code; and (b) salary reduction
contributions under arrangements described in sections 401(k), 403(b), 408(k) or 457(b) of the
Code.
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1.6 "Contributions" means the total amount contributed to pay for the cost of
Benefit Options, as calculated under Section 3.4.
1.7 "Dependent" means any individual who qualifies as a dependent under an
Insurance Contract for purposes of coverage under that Contract only or under Code Section 152
(as modified by Code Section 105(b)).
"Dependent" shall include any Child of a Participant who is covered under an
Insurance Contract, as defined in the Contract, as allowed by reason of the Affordable Care Act.
1.8 "Effective Date" means March 1, 1989.
1.9 "Election Period" means the period immediately preceding the beginning of
each Plan Year established by the Administrator, such period to be applied on a uniform and
nondiscriminatory basis for all Employees and Participants. However, an Employee's initial
Election Period shall be determined pursuant to Section 5.1.
l .l 0 "Eligible Employee" means any Employee who has satisfied the provisions of
Section 2.1.
An individual shall not be an "Eligible Employee" if such individual is not reported on
the payroll records of the Employer as a common law employee. In particular, it is expressly
intended that individuals not treated as common law employees by the Employer on its payroll
records are not "Eligible Employees" and are excluded from Plan participation even if a court or
administrative agency determines that such individuals are common law employees and not
independent contractors.
However, any Employee who is a "part- time" Employee shall not be eligible to
participate in this Plan. A "part- time" Employee is any Employee who works, or is expected to
work on a regular basis, less than 20 hours a week and is designated as a part-time Employee on
the Employer's personnel records.
1.11 "Eligible Opt Out Arrangement" means an Opt Out Arrangement that meets
the conditions of Section 4.4.
1.12 "Employee" means any person who is employed by the Employer. The term
Employee shall include leased employees within the meaning of Code Section 414(n)(2).
l .l3 "Employer" means City of El Segundo and any successor which shall maintain
this Plan; and any predecessor which has maintained this Plan. In addition, where appropriate
and with the exception of Articles VII and IX, the term Employer shall include any Employer
affiliated with the City of El Segundo that is treated as a single employer with the City of El
Segundo for purposes of Code Section 125(g)(4).
2
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1. 14 "Grace Period" means, with respect to any Plan Year, the time period ending on
the fifteenth day of the third calendar month after the end of such Plan Year, during which
Medical Expenses incurred by a Participant will be deemed to have been incurred during such
Plan Year.
1.15 "Health Flex Contribution" means any Employer contribution that meets the
following requirements: (1) the Employee may not opt to receive the amount as a taxable
benefit, (2) the Employee may use the amount to pay for minimum essential coverage, and (3)
the Employee may use the amount exclusively to pay for medical care, within the meaning of
Code Section 213.
1.16 "Insurance Contract" means any contract issued by an Insurer underwriting a
Benefit.
1.17 "Insurance Premium Payment Plan" means the plan of benefits contained in
Article 4.1 of this Plan, which provides for the payment of Premium Expenses.
1.18 "Insurer" means any insurance company that underwrites a Benefit under this
Plan.
1.19 "Key Employee" means an Employee described in Code Section 416(1)(1) and
the Treasury regulations thereunder.
1.20 "Opt Out Arrangement" means an arrangement where payment is made
available to an Employee only if the Employee declines coverage, but may not be used to pay
for the Health Insurance Benefit (whether or not the Employee receives the amount as a
taxable benefit).
1.21 "Participant" means any Eligible Employee who elects to become a Participant
pursuant to Section 2.3 and has not for any reason become ineligible to participate further in the
Plan.
1.22 "Plan" means this instrument, including all amendments thereto.
1.23 "Plan Year" means the 12 -month period beginning January 1 and ending
December 31. The Plan Year shall be the coverage period for the Benefits provided for under
this Plan. In the event a Participant commences participation during a Plan Year, then the initial
coverage period shall be that portion of the Plan Year commencing on such Participant's date of
entry and ending on the last day of such Plan Year.
1.24 "Premium Expenses" or "Premiums" mean the Participant's cost for the
Benefits described in Section 4.1.
1.25 "Premium Expense Reimbursement Account" means the account established
for a Participant pursuant to this Plan to which part of his Cafeteria Plan Benefit Dollars may
be allocated and from which Premiums of the Participant may be paid or reimbursed. If more
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than one type of insured Benefit is elected, sub - accounts shall be established for each type of
insured Benefit.
1.26 "Salary Redirection" means the contributions made by the Employer on behalf of
Participants pursuant to Section 3.1. These contributions shall be converted to Cafeteria Plan
Benefit Dollars and allocated to the funds or accounts established under the Plan pursuant to
the Participants' elections made under Article V.
1.27 "Salary Redirection Agreement" means an agreement between the Participant and
the Employer under which the Participant agrees to reduce his Compensation or to forego all or
part of the increases in such Compensation and to have such amounts contributed by the
Employer to the Plan on the Participant's behalf. The Salary Redirection Agreement shall apply
only to Compensation that has not been actually or constructively received by the Participant as
of the date of the agreement (after taking this Plan and Code Section 125 into account) and,
subsequently does not become currently available to the Participant.
1.28 "Spouse" means "spouse" as defined in an Insurance Contract for purposes of
coverage under that Contract only or the legally married husband or wife of a Participant, unless
legally separated by court decree.
ARTICLE II
PARTICIPATION
2.1 ELIGIBILITY
Any Eligible Employee shall be eligible to participate hereunder after 30 calendar days
starting on his or her initial date of employment with the Employer. However, any Eligible
Employee who was a Participant in the Plan on the effective date of this amendment shall
continue to be eligible to participate in the Plan.
2.2 EFFECTIVE DATE OF PARTICIPATION
An Eligible Employee shall become a Participant effective as of the first day of the
month coinciding with or next following the date on which he met the eligibility requirements of
Section 2.1.
2.3 APPLICATION TO PARTICIPATE
An Employee who is eligible to participate in this Plan shall, during the applicable
Election Period, complete an application to participate and election of benefits form which the
Administrator shall furnish to the Employee. The election made on such form shall be
irrevocable until the end of the applicable Plan Year unless the Participant is entitled to change
his Benefit elections pursuant to Section 5.4 hereof.
4
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An Eligible Employee shall also be required to execute a Salary Redirection Agreement
during the Election Period for the Plan Year during which he wishes to participate in this Plan.
Any such Salary Redirection Agreement shall be effective for the first pay period beginning on
or after the Employee's effective date of participation pursuant to Section 2.2.
2.4 TERMINATION OF PARTICIPATION
A Participant shall no longer participate in this Plan upon the occurrence of any of the
following events:
(a) Termination of employment. The Participant's termination of
employment, subject to the provisions of Section 2.6;
(b) Change in employment status. The end of the Plan Year during which
the Participant became a limited Participant because of a change in
employment status pursuant to Section 2.5;
(c) Death. The Participant's death, subject to the provisions of Section 2.7; or
(d) Termination of the plan. The termination of this Plan, subject to the
provisions of Section 10.2.
2.5 CHANGE OF EMPLOYMENT STATUS
If a Participant ceases to be eligible to participate because of a change in employment
status or classification (other than through termination of employment), the Participant shall
become a limited Participant in this Plan for the remainder of the Plan Year in which such
change of employment status occurs. As a limited Participant, no further Salary Redirection may
be made on behalf of the Participant, and, except as otherwise provided herein, all further
Benefit elections shall cease, subject to the limited Participant's right to continue coverage under
any Insurance Contracts. However, any balances in the limited Participant's Dependent Care
Flexible Spending Account may be used during such Plan Year to reimburse the limited
Participant for any allowable Employment - Related Dependent Care incurred during the Plan
Year. Subject to the provisions of Section 2.6, if the limited Participant later becomes an
Eligible Employee, then the limited Participant may again become a full Participant in this Plan,
provided he otherwise satisfies the participation requirements set forth in this Article II as if he
were a new Employee and made an election in accordance with Section 5.1.
2.6 TERMINATION OF EMPLOYMENT
If a Participant's employment with the Employer is terminated for any reason other than
death, his participation in the Benefit Options provided under Section 4.1 shall be governed in
accordance with the following:
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(a) Insurance Benefit. With regard to Benefits which are insured, the
Participant's participation in the Plan shall cease, subject to the
Participant's right to continue coverage under any Insurance Contract for
which premiums have already been paid.
(b) Dependent Care FSA. With regard to the Dependent Care Flexible
Spending Account, the Participant's participation in the Plan shall cease
and no further Salary Redirection contributions shall be made. However,
such Participant may submit claims for employment related Dependent
Care Expense reimbursements for claims incurred through the
remainder of the Plan Year in which such termination occurs and
submitted within 90 days after the end of the Plan Year, based on the
level of the Participant's Dependent Care Flexible Spending Account as
of the date of termination.
(c) COBRA applicability. With regard to the Health Flexible Spending
Account, the Participant may submit claims for expenses that were
incurred during the portion of the Plan Year before the end of the period
for which payments to the Health Flexible Spending Account have already
been made. Thereafter, the health benefits under this Plan including the
Health Flexible Spending Account shall be applied and administered
consistent with such further rights a Participant and his Dependents may
be entitled to pursuant to Code Section 4980B and Section 11.14 of the
Plan.
2.7 DEATH
If a Participant dies, his participation in the Plan shall cease. However, such Participant's
spouse or Dependents may submit claims for expenses or benefits for the remainder of the Plan
Year or until the Cafeteria Plan Benefit Dollars allocated to each specific benefit are exhausted.
In no event may reimbursements be paid to someone who is not a spouse or Dependent. If the
Plan is subject to the provisions of Code Section 4980B, then those provisions and related
regulations shall apply for purposes of the Health Flexible Spending Account.
6
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ARTICLE III
CONTRIBUTIONS TO THE PLAN
3.1 SALARY REDIRECTION
Benefits under the Plan shall be financed by Salary Redirections sufficient to support
Benefits that a Participant has elected hereunder and to pay the Participant's Premium Expenses.
The salary administration program of the Employer shall be revised to allow each Participant to
agree to reduce his pay during a Plan Year by an amount determined necessary to purchase the
elected Benefit Options. The amount of such Salary Redirection shall be specified in the Salary
Redirection Agreement and shall be applicable for a Plan Year. Notwithstanding the above, for
new Participants, the Salary Redirection Agreement shall only be applicable from the first day
of the pay period following the Employee's entry date up to and including the last day of the
Plan Year. These contributions shall be converted to Cafeteria Plan Benefit Dollars and
allocated to the funds or accounts established under the Plan pursuant to the Participants'
elections made under Article V.
Any Salary Redirection shall be determined prior to the beginning of a Plan Year
(subject to initial elections pursuant to Section 5.1) and prior to the end of the Election Period
and shall be irrevocable for such Plan Year. However, a Participant may revoke a Benefit
election or a Salary Redirection Agreement after the Plan Year has commenced and make a new
election with respect to the remainder of the Plan Year, if both the revocation and the new
election are on account of and consistent with a change in status and such other permitted events
as determined under Article V of the Plan and consistent with the rules and regulations of the
Department of the Treasury. Salary Redirection amounts shall be contributed on a pro rata basis
for each pay period during the Plan Year. All individual Salary Redirection Agreements are
deemed to be part of this Plan and incorporated by reference hereunder.
If, as of the date that any elected coverage under this Plan terminates, a Participant's
year -to -date Salary Redirections exceed or are less than the Participant's required Contributions
for the coverage, then the Employer will, as applicable, either return the excess to the
Participant as additional taxable wages or recoup the due Salary Redirection amounts from any
remaining Compensation.
3.2 APPLICATION OF CONTRIBUTIONS
As soon as reasonably practical after each payroll period, the Employer shall apply the
Salary Redirection to provide the Benefits elected by the affected Participants. Any contribution
made or withheld for the Health Flexible Spending Account or Dependent Care Flexible
Spending Account shall be credited to such fund or account. Amounts designated for the
Participant's Premium Expense Reimbursement Account shall likewise be credited to such
account for the purpose of paying Premium Expenses.
7
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3.3 PERIODIC CONTRIBUTIONS
Notwithstanding the requirement provided above and in other Articles of this Plan that
Salary Redirections be contributed to the Plan by the Employer on behalf of an Employee on a
level and pro rata basis for each payroll period, the Employer and Administrator may implement
a procedure in which Salary Redirections are contributed throughout the Plan Year on a periodic
basis that is not pro rata for each payroll period. However, with regard to the Health Flexible
Spending Account, the payment schedule for the required contributions may not be based on the
rate or amount of reimbursements during the Plan Year.
3.4 EMPLOYER AND PARTICIPANT CONTRIBUTIONS
In addition to Salary Redirections, the Employer may elect to provide Participants with
flex dollars to be applied to the benefit options in Section 4.1. The Employer may also make
Health Flex Contributions to the Insurance Premium Payment Plan as provided in Article 4.4,
which may or may not be equal to the amount charged by the insurance company. The annual
Contribution for a Participant's Health Flexible Spending Account is equal to the annual benefit
amount elected by the Participant, subject to the dollar limits set forth in Section 6.4. The
annual Contribution for a Participant's Dependent Care Flexible Spending Account is equal to
the annual benefit amount elected by the Participant, subject to the dollar limits set forth in
Section 7.9.
Nothing herein will be construed to require the Employer or the Administrator to
maintain any fund or to segregate any amount for the benefit of any Participant, and no
Participant or other person shall have any claim against, right to, or security or other interest in
any fund, account, or asset of the Employer from which any payment under this Plan may be
made. There is no trust or other fund from which Benefits are paid. While the Employer has
complete responsibility for the payment of Benefits out of its general assets (except for
Insurance Premium Payment Benefits paid as provided in the applicable insurance policy), it
may hire an unrelated third -party paying agent to make Benefit payments on its behalf.
ARTICLE IV
BENEFITS
4.1 BENEFIT OPTIONS
Each Participant may elect any one or more of the following optional Benefits:
(1) Health Flexible Spending Account
(2) Dependent Care Flexible Spending Account
(3) Insurance Premium Payment Plan
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7909079vi
(i) Health Insurance Benefit
Dental Insurance Benefit
4.2 HEALTH FLEXIBLE SPENDING ACCOUNT BENEFIT
Each Participant may elect to participate in the Health Flexible Spending Account
option, in which case Article VI shall apply.
4.3 DEPENDENT CARE FLEXIBLE SPENDING ACCOUNT BENEFIT
Each Participant may elect to participate in the Dependent Care Flexible Spending
Account option, in which case Article VII shall apply.
4.4 HEALTH INSURANCE BENEFIT
(a) Each Participant may elect to enroll or opt out of the Health Insurance
Benefit option. The total cost of the premium for the Health Insurance
Benefit the Participant selects is the Premium Expense. Premium
Expenses shall be reduced by the amount of a Health Flex Contribution, if
any, made by the Employer for the Plan Year.
(b) Coverage for Participant and Dependents. Each Participant may elect to
be covered under a health Insurance Contract for the Participant, his or her
Spouse, and his or her Dependents.
(c) Employer selects contracts. The Employer may select suitable health
Insurance Contracts for use in providing this health insurance benefit,
which policies will provide uniform benefits for all Participants
electing this Benefit.
(d) Contract incorporated by reference. The rights and conditions with
respect to the benefits payable from such health Insurance Contract shall
be determined therefrom, and such Insurance Contract shall be
incorporated herein by reference.
Opt Out Arran gernen,t: The Employer may establish an Opt Out Arrangement for Participants
who decline an Insurance Premium Payment Plan for the Health Insurance Benefit. If an Opt
Out Arrangement is established, the Employee may elect to take a cash amount established by
the Employer in lieu of enrolling in the Health Insurance Benefit.
Eligible O t Otit Arrangement: An Employer may also establish an Eligible Opt Out
Arrangement under this Plan as a condition to an Eligible Employee receiving cash in lieu of the
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Health Insurance Benefit. The conditions that must be satisfied for an Eligible Opt Out
Arrangement are as follows:
(a) The Employee must provide proof of minimum essential coverage
( "MEC ") through another source (other than coverage in the individual
market, whether or not obtained through Covered California);
(b) The proof of coverage must show that the Employee and all individuals in
the Employees expected tax family have (or will have) the required
minimum essential coverage. An Employee's expected tax family
includes all individuals for whom the Employee reasonably expects to
claim a personal exemption deduction for the taxable year(s) that cover the
Employer's plan year to which the opt -out arrangement applies;
(c) The Employee must provide reasonable evidence of the MEC for the
applicable period. Reasonable evidence may include an attestation by the
employee;
(d) The Employee must provide the evidence /attestation every plan year;
(e) The Employee must provide the evidence /attestation no earlier than a
reasonable time before coverage starts (e.g. open enrollment). The
evidence /attestation may also be provided within a reasonable time after
the plan year starts; and
(f) The opt -out payment cannot be made (and the Employer must not in fact
make payment) if the Employer knows or has reason to know that the
Employee or tax family member does not have the alternative coverage.
4.5 DENTAL INSURANCE BENEFIT
(a) Coverage for Participant and /or Dependents. Each Participant
may elect to be covered under the Employer's dental Insurance Contract.
In addition, the Participant may elect either individual or family coverage
under such Insurance Contract.
(b) Employer selects contracts. The Employer may select suitable dental
Insurance Contracts for use in providing this dental insurance benefit,
which policies will provide uniform benefits for all Participants
electing this Benefit.
(c) Contract incorporated by reference. The rights and conditions with
respect to the benefits payable from such dental Insurance Contract shall
be determined therefrom, and such dental Insurance Contract shall be
incorporated herein by reference.
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4.6 NONDISCRIMINATION REQUIREMENTS
(a) Intent to be nondiscriminatory. It is the intent of this Plan to
provide benefits to a classification of employees which the
Secretary of the Treasury finds not to be discriminatory in favor of
the group in whose favor discrimination may not occur under Code
Section 125.
(b) 25% concentration test. It is the intent of this Plan not to provide
qualified benefits as defined under Code Section 125 to Key Employees
in amounts that exceed 25% of the aggregate of such Benefits provided
for all Eligible Employees under the Plan. For purposes of the
preceding sentence, qualified benefits shall not include benefits which
(without regard to this paragraph) are includible in gross income.
(c) Adjustment to avoid test failure. If the Administrator deems it
necessary to avoid discrimination or possible taxation to Key
Employees or a group of employees in whose favor discrimination may
not occur in violation of Code Section 125, it may, but shall not be
required to, reject any election or reduce contributions or non - taxable
Benefits in order to assure compliance with this Section. Any act taken
by the Administrator under this Section shall be carried out in a uniform
and nondiscriminatory manner. If the Administrator decides to reject
any election or reduce contributions or non - taxable Benefits, it shall be
done in the following manner. First, the non - taxable Benefits of the
affected Participant (either an employee who is highly compensated or a
Key Employee, whichever is applicable) who has the highest amount of
non - taxable Benefits for the Plan Year shall have his non - taxable
Benefits reduced until the discrimination tests set forth in this Section
are satisfied or until the amount of his non - taxable Benefits equals the
non - taxable Benefits of the affected Participant who has the second
highest amount of non - taxable Benefits. This process shall continue
until the nondiscrimination tests set forth in this Section are satisfied.
With respect to any affected Participant who has had Benefits reduced
pursuant to this Section, the reduction shall be made proportionately
among Health Flexible Spending Account Benefits and Dependent Care
Flexible Spending Account Benefits, and once all these Benefits are
expended, proportionately among insured Benefits. Contributions which
are not utilized to provide Benefits to any Participant by virtue of any
administrative act under this paragraph shall be forfeited and deposited
into the benefit plan surplus.
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ARTICLE V
PARTICIPANT ELECTIONS
5.1 INITIAL ELECTIONS
An Employee who meets the eligibility requirements of Section 2.1 on the first day of, or
during, a Plan Year may elect to participate in this Plan for all or the remainder of such Plan
Year, provided he elects to do so on or before his effective date of participation pursuant to
Section 2.2.
5.2 SUBSEQUENT ANNUAL ELECTIONS
During the Election Period prior to each subsequent Plan Year, each Participant shall be
given the opportunity to elect, on an election of benefits form to be provided by the
Administrator, which Benefit options he wishes to select. Any such election shall be effective
for any Benefit expenses incurred during the Plan Year which follows the end of the Election
Period. With regard to subsequent annual elections, the following options shall apply:
(a) A Participant or Employee who failed to initially elect to participate may
elect different or new Benefits under the Plan during the Election Period;
(b) A Participant may terminate his participation in the Plan by notifying the
Administrator in writing during the Election Period that he does not want
to participate in the Plan for the next Plan Year, or by not electing any
Benefit options;
(c) An Employee who elects not to participate for the Plan Year following
the Election Period will have to wait until the next Election Period
before again electing to participate in the Plan, except as provided for in
Section 5.4.
5.3 FAILURE TO ELECT
Any Participant failing to complete an election of benefits form pursuant to Section 5.2
by the end of the applicable Election Period shall be deemed to have elected not to participate in
the Plan for the upcoming Plan Year. No further Salary Redirections shall therefore be
authorized for such subsequent Plan Year.
5.4 CHANGE IN STATUS
(a) Change in status defined. Any Participant may change a Benefit election
after the Plan Year (to which such election relates) has commenced and
make new elections with respect to the remainder of such Plan Year if,
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under the facts and circumstances, the changes are necessitated by and are
consistent with a change in status which is acceptable under rules and
regulations adopted by the Department of the Treasury, the provisions of
which are incorporated by reference. Notwithstanding anything herein to
the contrary, if the rules and regulations conflict, then such rules and
regulations shall control. The Administrator, in its sole discretion, on a
uniform and consistent basis, and consistent with prevailing IRS guidance,
shall determine whether a requested change meets general consistency and
specific consistency requirements so as to qualify as a change in status.
A Participant may only change his or her election upon the occurrence of
a change in status if the election is made on account of and corresponds
with a change in status that affects eligibility for coverage under a plan of
the Employer or a plan of the Spouse's or Dependent's employer. If the
Participant, Spouse or Dependent gains or loses eligibility for coverage,
then a Participant's election under the Plan to cease or decrease coverage
for that individual under the Plan corresponds with that change in status
only if coverage for that individual becomes applicable or is increased
under the family member plan. In general, a change in election does not
meet general consistency requirements if the change in status is the
Participant's divorce, annulment or legal separation from a Spouse, the
death of a Spouse or Dependent, or a Dependent ceasing to satisfy the
eligibility requirements for coverage, and the Participant's election under
the Plan is to cancel accident or health insurance coverage for any
individual other than the one involved in such event.
Regardless of the general consistency requirement, if the individual, the
individual's Spouse, or Dependent becomes eligible for continuation
coverage under the Employer's group health plan as provided in Code
Section 4980B or any similar state law, then the individual may elect to
increase payments under this Plan in order to pay for the continuation
coverage. However, this does not apply for COBRA eligibility due to
divorce, annulment or legal separation.
Any new election shall be effective at such time as the Administrator
shall prescribe, but not earlier than the first pay period beginning after the
election form is completed and returned to the Administrator. For the
purposes of this subsection, assuming the general consistency
requirement is satisfied, a change in status shall only include the
following events or other events permitted by Treasury regulations
(specific consistency requirements):
(l) Legal Marital Status: events that change a Participant's legal
marital status, including marriage, divorce, death of a
Spouse, legal separation or annulment;
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(2) Number of Dependents: Events that change a Participant's
number of Dependents, including birth, adoption, placement for
adoption, or death of a Dependent;
(3) Employment Status: Any of the following events that change the
employment status of the Participant, Spouse, or Dependent:
termination or commencement of employment, a strike or lockout,
commencement or return from an unpaid leave of absence, or a
change in worksite. In addition, if the eligibility conditions of this
Plan or other employee benefit plan of the Employer of the
Participant, 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 in employment under this subsection;
(4) Dependent satisfies or ceases to satisfy the eligibility
requirements: An event that causes the Participant's Dependent to
satisfy or cease to satisfy the requirements for coverage due to
attainment of age, student status, or any similar circumstance;
and
(5) Residency: A change in the place of residence of the Participant,
Spouse or Dependent, that would lead to a change in status (such
as a loss of HMO coverage).
For the Dependent Care Flexible Spending Account, if the election change
is on account of and corresponds with a change in status that affects
eligibility of dependent care expenses for the tax exclusion under Code
Section 129 or if a Dependent becomes or ceases to be a "Qualifying
Dependent" as defined under Code Section 21(b), it shall qualify as a
change in status.
Notwithstanding anything in this Section to the contrary, the gain of
eligibility or change in eligibility of a child, as allowed under Code
Sections 105(b) and 106, and IRS Notice 2010 -38, shall qualify as a
change in status.
(b) Special enrollment rights. Notwithstanding subsection (a), the
Participants may change an election for accident or health coverage during
a Plan Year and make a new election that corresponds with the special
enrollment rights provided in Code Section 9801(f), including those
authorized under the provisions of the Children's Health Insurance
Program Reauthorization Act of 2009(SCHIP); provided that such
Participant meets the sixty (60) day notice requirement imposed by Code
Section 9801(f) (or such longer period as may be permitted by the Plan
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and communicated to Participants). Such change shall take place on a
prospective basis, unless otherwise required by Code Section 9801 (0 to be
retroactive.
(c) Qualified Medical Support Order. Notwithstanding subsection
(a), in the event of a judgment, decree, or order (including approval of a
property settlement) ( "order ") resulting from a divorce, legal separation,
annulment, or change in legal custody which requires accident or health
coverage for a Participant's child (including a foster child who is a
Dependent of the Participant):
(1) The Plan may change an election to provide coverage for the child
if the order requires coverage under the Participant's Health
Flexible Spending Account or Insurance Premium Payment Plan;
or
(2) The Participant shall be permitted to change an election to cancel
coverage under the Participant's Health Flexible Spending
Account or Insurance Premium Payment Plan for the child if the
order requires the former Spouse to provide coverage for such
child, under that individual's plan and such coverage is actually
provided.
(d) Medicare or Medicaid. Notwithstanding subsection (a), a Participant may
change elections to cancel accident or health coverage for the Participant
or the Participant's Spouse or Dependent if the Participant or the
Participant's Spouse or Dependent is enrolled in the accident or health
coverage of the Employer and becomes entitled to coverage (i.e., enrolled)
under Part A or Part B of the 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). Upon
such condition, the Participant may prospectively cancel or reduce the
health coverage or may cancel coverage under the Health Flexible
Spending Account as long as the total contributions for the Plan Year are
less than the amount already reimbursed. If the Participant or the
Participant's Spouse or Dependent who has been entitled to Medicaid or
Medicare coverage loses eligibility, that individual may prospectively
elect coverage under the Plan if a benefit package option under the Plan
provides similar coverage.
(e) Cost increase or decrease. If the cost of a Benefit provided under the
Plan, other than the Health Flexible Spending Account, increases or
decreases during a Plan Year, then the Plan shall automatically increase
or decrease, as the case may be, the Salary Redirections of all affected
Participants for such Benefit. The Administrator, in its sole discretion
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and on a uniform and consistent basis, considering all of the surrounding
facts and circumstances and prevailing IRS guidance, shall determine the
significance of any increase or decrease. If the cost of a benefit package
option increases significantly, the Administrator shall permit the affected
Participants to either make corresponding changes in their payments or
revoke their elections and, in lieu thereof, receive on a prospective basis
coverage under another benefit package option with similar coverage, or
drop coverage prospectively if there is no benefit package option with
similar coverage.
A cost increase or decrease refers to an increase or decrease in the amount
of elective contributions under the Plan, whether resulting from an action
taken by the Participants or an action taken by the Employer.
(f) Loss of coverage. If the coverage under a Benefit, other than the Health
Flexible Spending Account, is significantly curtailed or ceases during a
Plan Year, affected Participants may revoke their elections of such
Benefit and, in lieu thereof, elect to receive on a prospective basis
coverage under another plan with similar coverage, or drop coverage
prospectively if no similar coverage is offered.
(g) Addition of a new benefit. If, during the period of coverage, a new
benefit package option or other coverage option is added, an existing
benefit package option is significantly improved, or an existing benefit
package option or other coverage option is eliminated, then the affected
Participants may elect the newly -added option, or elect another option if
an option has been eliminated prospectively and make corresponding
election changes with respect to other benefit package options providing
similar coverage. In addition, those Eligible Employees who are not
participating in the Plan may opt to become Participants and elect the new
or newly improved benefit package option. This provision does not apply
to the Health Flexible Spending Account benefit.
(h) Loss of coverage under certain other plans. A Participant may make a
prospective election change to add group health coverage for the
Participant, the Participant's Spouse or Dependent if such individual loses
group health coverage sponsored by a governmental or educational
institution, including a state children's health insurance program under the
Social Security Act, the Indian Health Service or a health program
offered by an Indian tribal government, a state health benefits risk pool,
or a foreign government group health plan. This provision does not apply
to the Health Flexible Spending Account benefit.
(i) Change of coverage due to change under certain other plans. A
Participant may make a prospective election change that is on account of
and corresponds with a change made under the plan of a Spouse's, former
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Spouse's or Dependent's employer if (1) the cafeteria plan or other
qualified benefits plan of the Spouse's, former Spouse's or Dependent's
employer permits its participants to make a change that would be
permitted under applicable IRS regulations; or (2) the cafeteria plan
permits participants to make an election for a period of coverage that is
different from the period of coverage under the cafeteria plan or qualified
benefits plan of a Spouse's, former Spouse's or Dependent's employer.
This provision does not apply to the Health Flexible Spending Account
benefit.
(j) Change in dependent care provider. A Participant may make a
prospective election change that is on account of and corresponds with a
change by the Participant in the dependent care provider. The availability
of dependent care services from a new childcare provider is similar to a
new benefit package option becoming available. A cost change is
allowable in the Dependent Care Flexible Spending Account only if the
cost change is imposed by a dependent care provider who is not related to
the Participant, as defined in Code Section 152(a)(1) through (8).
(k) Health FSA cannot change due to insurance change. A Participant
shall not be permitted to change an election to the Health Flexible
Spending Account as a result of a cost or coverage change under any
health insurance benefits.
ARTICLE VI
HEALTH FLEXIBLE SPENDING ACCOUNT
6.1 ESTABLISHMENT OF PLAN
This Health Flexible Spending Account is intended to qualify as a medical
reimbursement plan under Code Section 105 and shall be interpreted in a manner consistent
with such Code Section and the Treasury regulations thereunder. Participants who elect to
participate in this Health Flexible Spending Account may submit claims for the reimbursement
of Medical Expenses. All amounts reimbursed shall be periodically paid from amounts allocated
to the Health Flexible Spending Account. Periodic payments reimbursing Participants from the
Health Flexible Spending Account shall in no event occur less frequently than monthly.
6.2 DEFINITIONS
For the purposes of this Article and this Plan, the terms below have the following
meaning:
(a) "Health Flexible Spending Account" means the account established
for Participants pursuant to this Plan to which part of their Cafeteria
Plan Benefit Dollars may be allocated and from which all allowable
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Medical Expenses incurred by a Participant, his or her Spouse and his or
her Dependents may be reimbursed.
(b) "Highly Compensated Participant" means, for the purposes of this
Article and determining discrimination under Code Section 105(h), a
participant who is:
(1) one of the 5 highest paid officers;
(2) a shareholder who owns (or is considered to own applying the
rules of Code Section 318) more than 10 percent in value of the
stock of the Employer; or among the highest paid 25 percent of
all Employees (other than exclusions permitted by Code Section
105(h)(3)(B) for those individuals who are not Participants).
(c) "Medical Expenses" means any expense for medical care within the
meaning of the term "medical care" as defined in Code Section 213(d),
but only to the extent that the expense has not been reimbursed through
insurance or otherwise, and the rulings and Treasury regulations
thereunder, and not otherwise used by the Participant as a deduction in
determining his tax liability under the Code. "Medical Expenses" can be
incurred by the Participant, his or her Spouse and his or her Dependents.
"Incurred" means, with regard to Medical Expenses, when the
Participant is provided with the medical care that gives rise to the
Medical Expense and not when the Participant is formally billed or
charged for, or pays for, the medical care.
A Participant may not be reimbursed for the cost of any medicine or
drug that is not "prescribed" within the meaning of Code Section 106(f)
or is not insulin.
A Participant may not be reimbursed for the cost of other health
coverage such as premiums paid under plans maintained by the employer
of the Participant's Spouse or individual policies maintained by the
Participant or his Spouse or Dependent.
A Participant may not be reimbursed for "qualified long -term
care services" as defined in Code Section 770213(c).
(d) The definitions of Article I are hereby incorporated by reference to the
extent necessary to interpret and apply the provisions of this Health
Flexible Spending Account.
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6.3 FORFEITURES
Except as provided in Section 6.8, if any balance remains in the Participants Health
Flexible Spending Account for the Plan Year, including any Grace Period, after all
reimbursements have been made, then such balance shall not be carried over to reimburse the
Participant for Medical Care Expenses incurred during a subsequent Plan Year. The amount in
the Health Flexible Spending Account as of the end of the Grace Period for any Plan Year (and
after the processing of all claims for such Plan Year pursuant to Section 6.7 hereof) shall be
forfeited and credited to the benefit plan surplus, subject to Section 8.2.
6.4 LIMITATION ON ALLOCATIONS
Notwithstanding any provision contained in this Health Flexible Spending Account to
the contrary:
(a) The maximum amount that may be allocated to the Health Flexible
Spending Account by a Participant in or on account of any Plan
Year is $2,550, as adjusted for cost of living by the Internal Revenue
Service from time to time. The Administrator may limit the
elections of a Participant who is terminated and rehired during the
same Plan Year to the extent necessary to comply with the
requirements of Code Section 125(i).
(b) The maximum amount of Participant and Employer contributions to the
Health Flexible Spending Account that may be used to reimburse Medical
Expenses incurred in any Plan Year (or the Grace Period for such Plan
Year) is limited to two times the Participant's salary reduction or, if
greater, the Participant's salary reduction plus $500.
6.5 NONDISCRIMINATION REQUIREMENTS
(a) Intent to be nondiscriminatory. It is the intent of this Health Flexible
Spending Account not to discriminate in violation of the Code and the
Treasury regulations thereunder.
(b) Adjustment to avoid test failure. If the Administrator deems it
necessary to avoid discrimination under this Health Flexible Spending
Account, it may, but shall not be required to, reject any elections or
reduce contributions or Benefits in order to assure compliance with this
Section. Any act taken by the Administrator under this Section shall be
carried out in a uniform and nondiscriminatory manner. If the
Administrator decides to reject any elections or reduce contributions or
Benefits, it shall be done in the following manner. First, the Benefits
designated for the Health Flexible Spending Account by the member of
the group in whose favor discrimination may not occur pursuant to Code
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Section 105 that elected to contribute the highest amount to the fund for
the Plan Year shall be reduced until the nondiscrimination tests set forth
in this Section or the Code are satisfied, or until the amount designated
for the fund equals the amount designated for the fund by the next
member of the group in whose favor discrimination may not occur
pursuant to Code Section 105 who has elected the second highest
contribution to the Health Flexible Spending Account for the Plan Year.
This process shall continue until the nondiscrimination tests set forth in
this Section or the Code are satisfied. Contributions which are not utilized
to provide Benefits to any Participant by virtue of any administrative act
under this paragraph shall be forfeited and credited to the benefit plan
surplus.
6.6 COORDINATION WITH CAFETERIA PLAN
All Participants under the Cafeteria Plan are eligible to receive Benefits under this
Health Flexible Spending Account. The enrollment under the Cafeteria Plan shall constitute
enrollment under this Health Flexible Spending Account. In addition, other matters concerning
contributions, elections and the like shall be governed by the general provisions of the Cafeteria
Plan.
6.7 HEALTH FLEXIBLE SPENDING ACCOUNT CLAIMS
(a) Expenses must be incurred during Plan Year. All Medical Expenses
incurred by a Participant, his or her Spouse and his or her Dependents
during the Plan Year including the Grace Period shall be reimbursed
during the Plan Year subject to Section 2.6, even though the submission
of such a claim occurs after his participation hereunder ceases; but
provided that the Medical Expenses were incurred during the applicable
Plan Year. Medical Expenses are treated as having been incurred when
the Participant is provided with the medical care that gives rise to the
medical expenses, not when the Participant is formally billed or charged
for, or pays for the medical care.
(b) Reimbursement available throughout Plan Year. The Administrator
shall direct the reimbursement to each eligible Participant for all
allowable Medical Expenses, up to a maximum of the amount
designated by the Participant for the Health Flexible Spending Account
for the Plan Year. Reimbursements shall be made available to the
Participant throughout the year without regard to the level of Cafeteria
Plan Benefit Dollars which have been allocated to the fund at any given
point in time. Furthermore, a Participant shall be entitled to
reimbursements only for amounts in excess of any payments or other
reimbursements under any health care plan covering the Participant
and /or his Spouse or Dependents.
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(c) Payments. Reimbursement payments under this Plan shall be made
directly to the Participant. However, in the Administrator's discretion,
payments may be made directly to the service provider. The application
for payment or reimbursement shall be made to the Administrator on an
acceptable form within a reasonable time of incurring the debt or paying
for the service. The application shall include a written statement from an
independent third party stating that the Medical Expense has been
incurred and the amount of such expense. Furthermore, the Participant
shall provide a written statement that the Medical Expense has not been
reimbursed or is not reimbursable under any other health plan coverage
and, if reimbursed from the Health Flexible Spending Account, such
amount will not be claimed as a tax deduction. The Administrator shall
retain a file of all such applications.
(d) Grace Period. Notwithstanding anything in this Section to the contrary,
Medical Expenses incurred during the Grace Period, up to the remaining
account balance, shall also be deemed to have been incurred during the
Plan Year to which the Grace Period relates.
(e) Claims for reimbursement. Claims for the reimbursement of Medical
Expenses incurred in any Plan Year shall be paid as soon after a claim
has been filed as is administratively practicable; provided however, that
if a Participant fails to submit a claim within 90 days after the end of the
Plan Year, those Medical Expense claims shall not be considered for
reimbursement by the Administrator. Non - prescription drug costs
incurred during the Grace Period related to the 2010 Plan Year shall not
be reimbursed.
6.8 QUALIFIED RESERVIST DISTRIBUTIONS
(a) Qualified Reservist Distribution. A Participant may request a
Qualified Reservist Distribution, provided the following provisions are
satisfied. "Qualified Reservist Distribution" means any distribution to a
Participant of all or a portion of the balance in the Participant's Health
Flexible Spending Account if.
(1) Such Participant was an individual who was (by reason of being a
member of a reserve component (as defined in Section 101 of
Title 37, United States Code)) ordered or called to active duty for
a period of 180 days or more or for an indefinite period.
(2) A Participant may have been called prior to June 18, 2008,
provided the individual's active duty continues after June 18, 2008
and the period of duty complies with subsection (a).
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(3) The distribution is made during the period beginning on the date of
the order or call that applies to the Participant and ending on the
last day of the Plan Year (or Grace Period) which includes the date
of such order or call.
(4) The Qualified Reservist Distribution option is offered to
all Participants who qualify under this Article.
(5) Qualified Reservist Distributions may only be made if the
Participant is ordered or called to active duty, not the Participant's
spouse or dependents.
(6) Under Section 10 1 of the Title 37 of the United States Code,
"reserve component" means: (1) the Army National Guard, (2) the
Army Reserve, (3) the Navy Reserve, (4) the Marine Corps
Reserve, (5) the Air National Guard, (6) the Air Force Reserve,
(7) the Coast Guard Reserve, or (8) the Reserve Corps of the
Public Health Service.
(b) Conditions. The following conditions apply:
(1) The Employer must receive a copy of the order or call to active
duty and may rely on the order or call to determine the period
that the Participant has been ordered or called to duty.
(2) Eligibility for a Qualified Reservist Distribution is not affected if
the order or call is for 180 days or more or is indefinite, but the
actual period of active duty is less than 180 days or is changed
otherwise from the order or call.
(3) If the original order is less than 180 days, then no Qualified
Reservist Distribution is allowed. However, if subsequent calls
or orders increase the total days of active duty to 180 or more,
then a Qualified Reservist Distribution will be allowed.
(c) Amount. The amount a Participant may be reimbursed from the
Health Flexible Spending Account is the amount contributed by the
Participant to the Health Flexible Spending Account as of the date of the
distribution request, less any reimbursements received as of the date of
the distribution request.
(d) Procedure. The Employer must specify a process for requesting
the distribution. The Employer may limit the number of distributions
processed for a Participant to one per Plan Year. The distribution request
must be made on or after the call or order and before the last day of the
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Grace Period. The QRD shall be paid within a reasonable time but in no
event more than 60 days after the date of the request.
(e) Claims. Claims incurred prior to the date of the request of the
distribution shall be paid as any other claim. Claims incurred after the
date of the distribution shall be paid on submission as any other claim.
ARTICLE VII
DEPENDENT CARE FLEXIBLE SPENDING ACCOUNT
7.1 ESTABLISHMENT OF ACCOUNT
This Dependent Care Flexible Spending Account is intended to qualify as a program
under Code Section 129 and shall be interpreted in a manner consistent with such Code Section,
Participants who elect to participate in this program may submit claims for the reimbursement
of Employment - Related Dependent Care Expenses. All amounts reimbursed shall be paid from
amounts allocated to the Participant's Dependent Care Flexible Spending Account.
7.2 DEFINITIONS
For the purposes of this Article and the Cafeteria Plan the terms below shall have the
following meaning:
(a) "Dependent Care Flexible Spending Account" means the account
established for a Participant pursuant to this Article to which part of his
Cafeteria Plan Benefit Dollars may be allocated and from which
Employment- Related Dependent Care Expenses of the Participant may
be reimbursed for the care of the Qualifying Dependents of Participants.
(b) "Earned Income" means earned income as defined under Code Section
32(c)(2), but excluding such amounts paid or incurred by the Employer
for dependent care assistance to the Participant.
(c) "Employment- Related Dependent Care Expenses" means the amounts
paid for expenses of a Participant for those services which if paid by the
Participant would be considered employment related expenses under
Code Section 21(b)(2). Generally, they shall include expenses for
household services and for the care of a Qualifying Dependent, to the
extent that such expenses are incurred to enable the Participant to be
gainfully employed for any period for which there are one or more
Qualifying Dependents with respect to such Participant. Employment -
Related Dependent Care Expenses are treated as having been incurred
when the Participant's Qualifying Dependents are provided with the
dependent care that gives rise to the Employment- Related Dependent
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Care Expenses, not when the Participant is formally billed or charged for,
or pays for the dependent care. The determination of whether an amount
qualifies as an Employment - Related Dependent Care Expense shall be
made subject to the following rules:
(l) If such amounts are paid for expenses incurred outside the
Participant's household, they shall constitute Employment - Related
Dependent Care Expenses only if incurred for a Qualifying
Dependent as defined in Section 7.2(d)(1) (or deemed to be, as
described in Section 7.2(d)(1) pursuant to Section 7.2(d)(3)), or
for a Qualifying Dependent as defined in Section 7.2(d)(2) (or
deemed to be, as described in Section 7.2(d)(2) pursuant to
Section 7.2(d)(3)) who regularly spends at least 8 hours per day in
the Participant's household;
(2) If the expense is incurred outside the Participant's home at a
facility that provides care for a fee, payment, or grant for more
than 6 individuals who do not regularly reside at the facility, the
facility must comply with all applicable state and local laws and
regulations, including licensing requirements, if any; and
(3) Employment - Related Dependent Care Expenses of a Participant
shall not include amounts paid or incurred to a child of such
Participant who is under the age of 19 or to an individual who is a
Dependent of such Participant or such Participant's Spouse.
(d) "Qualifying Dependent" means, for Dependent Care Flexible
Spending Account purposes,
(1) a Participant's Dependent (as defined in Code Section 152(a)(1))
who has not attained age 13;
(2) a Dependent or the Spouse of a Participant who is physically or
mentally incapable of caring for himself or herself and has the
same principal place of abode as the Participant for more than
one -half of such taxable year; or
(3) a child that is deemed to be a Qualifying Dependent described in
paragraph (1) or (2) above, whichever is appropriate, pursuant to
Code Section 21(e)(5).
(e) The definitions of Article I are hereby incorporated by reference to
the extent necessary to interpret and apply the provisions of this
Dependent Care Flexible Spending Account.
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7.3 DEPENDENT CARE FLEXIBLE SPENDING ACCOUNTS
The Administrator shall establish a Dependent Care Flexible Spending Account for each
Participant who elects to apply Cafeteria Plan Benefit Dollars to Dependent Care Flexible
Spending Account benefits.
7.4 INCREASES IN DEPENDENT CARE FLEXIBLE SPENDING ACCOUNTS
A Participant's Dependent Care Flexible Spending Account shall be increased each pay
period by the portion of Cafeteria Plan Benefit Dollars that he has elected to apply toward his
Dependent Care Flexible Spending Account pursuant to elections made under Article V hereof.
7.5 DECREASES IN DEPENDENT CARE FLEXIBLE SPENDING ACCOUNTS
A Participant's Dependent Care Flexible Spending Account shall be reduced by the
amount of any Employment - Related Dependent Care Expense reimbursements paid or incurred
on behalf of a Participant pursuant to Section 7.12 hereof.
7.6 ALLOWABLE DEPENDENT CARE REIMBURSEMENT
Subject to limitations contained in Section 7.9 of this Program, and to the extent of the
amount contained in the Participant's Dependent Care Flexible Spending Account, a Participant
who incurs Employment - Related Dependent Care Expenses shall be entitled to receive from the
Employer full reimbursement for the entire amount of such expenses incurred during the Plan
Year or portion thereof during which he is a Participant as long as such expenses have not
otherwise been reimbursed.
7.7 ANNUAL STATEMENT OF BENEFITS
On or before January 31 st of each calendar year, the Employer shall furnish to each
Employee who was a Participant and received benefits under Section 7.6 during the prior
calendar year, a statement of all such benefits paid to or on behalf of such Participant during the
prior calendar year. This statement is set forth on the Participant's Form W -2.
7.8 FORFEITURES
The amount in a Participant's Dependent Care Flexible Spending Account as of the end
of any Plan Year (and after the processing of all claims for such Plan Year pursuant to Section
7.12 hereof) shall be forfeited and credited to the benefit plan surplus. In such event, the
Participant shall have no further claim to such amount for any reason.
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7.9 LIMITATION ON PAYMENTS
(a) Code limits. Notwithstanding any provision contained in this
Article to the contrary, amounts paid from a Participant's Dependent Care
Flexible Spending Account in or on account of any taxable year of the
Participant shall not exceed the lesser of the Earned Income limitation
described in Code Section 129(b) or $5,000 ($2,500 if a separate tax
return is filed by a Participant who is married as determined under the
rules of paragraphs (3) and (4) of Code Section 21(e)).
7.10 NONDISCRIMINATION REQUIREMENTS
(a) Intent to be nondiscriminatory. It is the intent of this Dependent Care
Flexible Spending Account that contributions or benefits not
discriminate in favor of the group of employees in whose favor
discrimination may not occur under Code Section 129(d).
(b) 25% test for shareholders. It is the intent of this Dependent Care
Flexible Spending Account that not more than 25 percent of the amounts
paid by the Employer for dependent care assistance during the Plan Year
will be provided for the class of individuals who are shareholders or
owners (or their Spouses or Dependents), each of whom (on any day of
the Plan Year) owns more than 5 percent of the stock or of the capital or
profits interest in the Employer.
(c) Adjustment to avoid test failure. If the Administrator deems it necessary
to avoid discrimination or possible taxation to a group of employees in
whose favor discrimination may not occur in violation of Code Section
129 it may, but shall not be required to, reject any elections or reduce
contributions or non - taxable benefits in order to assure compliance with
this Section. Any act taken by the Administrator under this Section shall
be carried out in a uniform and nondiscriminatory manner. If the
Administrator decides to reject any elections or reduce contributions or
Benefits, it shall be done in the following manner. First, the Benefits
designated for the Dependent Care Flexible Spending Account by the
affected Participant that elected to contribute the highest amount to such
account for the Plan Year shall be reduced until the nondiscrimination
tests set forth in this Section are satisfied, or until the amount designated
for the account equals the amount designated for the account of the
affected Participant who has elected the second highest contribution to the
Dependent Care Flexible Spending Account for the Plan Year. This
process shall continue until the nondiscrimination tests set forth in this
Section are satisfied. Contributions which are not utilized to provide
Benefits to any Participant by virtue of any administrative act under this
paragraph shall be forfeited.
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7.11 COORDINATION WITH CAFETERIA PLAN
All Participants under the Cafeteria Plan are eligible to receive Benefits under this
Dependent Care Flexible Spending Account. The enrollment and termination of participation
under the Cafeteria Plan shall constitute enrollment and termination of participation under this
Dependent Care Flexible Spending Account. In addition, other matters concerning
contributions, elections and the like shall be governed by the general provisions of the Cafeteria
Plan.
7.12 DEPENDENT CARE FLEXIBLE SPENDING ACCOUNT CLAIMS
The Administrator shall direct the payment of all such Dependent Care claims to the
Participant upon the presentation to the Administrator of documentation of such expenses in a
form satisfactory to the Administrator. However, in the Administrator's discretion, payments
may be made directly to the service provider. In its discretion in administering the Plan, the
Administrator may utilize forms and require documentation of costs as may be necessary to
verify the claims submitted. At a minimum, the form shall include a statement from an
independent third party as proof that the expense has been incurred during the Plan Year and the
amount of such expense. In addition, the Administrator may require that each Participant who
desires to receive reimbursement under this Program for Employment- Related Dependent Care
Expenses submit a statement which may contain some or all of the following information:
(a) The Dependent or Dependents for whom the services were
performed;
(b) The nature and date of the services performed for the Participant, the cost
of which he wishes reimbursement;
(c) The amount of the requested reimbursement;
(d) The relationship, if any, of the person performing the services to the
Participant;
(e) If the services are being performed by a child of the Participant, the
age of the child;
(f) A statement as to where the services were performed;
(g) If any of the services were performed outside the home, a statement as
to whether the Dependent for whom such services were performed
spends at least 8 hours a day in the Participant's household;
(h) if the services were being performed in a day care center, a
statement:
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(1) that the day care center complies with all applicable laws and
regulations of the state of residence,
(2) that the day care center provides care for more than 6 individuals
(other than individuals residing at the center), and
(3) of the amount of fee paid to the provider.
(i) If the Participant is married, a statement containing the following:
(1) the Spouse's salary or wages if he or she is employed, or
(2) if the Participant's Spouse is not employed, that
(i) he or she is incapacitated, or
(ii) he or she is a full -time student attending an educational
institution and the months during the year which he or
she attended such institution.
(j) A statement that the reimbursement sought has not otherwise been
reimbursed and that the Participant will not seek reimbursement through
any other source.
Claims for reimbursement. If a Participant fails to submit a claim within 90 days after
the end of the Plan Year, those claims shall not be considered for reimbursement by the
Administrator.
ARTICLE VIII
BENEFITS AND RIGHTS
8.1 CLAIM FOR BENEFITS
(a) Insurance claims. Any claim for Benefits underwritten by Insurance Contract(s)
shall be made to the Insurer. If the Insurer denies any claim, the Participant or
beneficiary shall follow the Insurer's claims review procedure.
(b) Dependent Care Flexible Spending Account or Health Flexible
Spending Account Claims. Any claim for Dependent Care Flexible Spending
Account or Health Flexible Spending Account Benefits shall be made to the
Administrator. For the Health Flexible Spending Account, if a Participant fails to
submit a claim within 90 days after the end of the Plan Year, those claims shall
not be considered for reimbursement by the Administrator. For the Dependent
Care Flexible Spending Account, if a Participant fails to submit a claim within 90
days after the end of the Plan Year, those claims shall not be considered for
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reimbursement by the Administrator. If the Administrator denies a claim, the
Administrator may provide notice to the Participant or beneficiary, in writing,
within 90 days after the claim is filed unless special circumstances require an
extension of time for processing the claim. The notice of a denial of a claim shall
be written in a manner calculated to be understood by the claimant and shall set
forth:
(l) specific references to the pertinent Plan provisions on which the denial
is based;
(2) a description of any additional material or information necessary for the
claimant to perfect the claim and an explanation as to why such
information is necessary; and
(3) an explanation of the Plan's claim procedure.
(c) Appeal. Within 60 days after receipt of the above material, the claimant shall
have a reasonable opportunity to appeal the claim denial to the Administrator for
a full and fair review. The claimant or his duly authorized representative may:
(1) request a review upon written notice to the Administrator;
(2) review pertinent documents; and
(3) submit issues and comments in writing.
(d) Review of appeal. A decision on the review by the Administrator will be made
not later than 60 days after receipt of a request for review, unless special
circumstances require an extension of time for processing (such as the need to
hold a hearing), in which event a decision should be rendered as soon as possible,
but in no event later than 120 days after such receipt. The decision of the
Administrator shall be written and shall include specific reasons for the decision,
written in a manner calculated to be understood by the claimant, with specific
references to the pertinent Plan provisions on which the decision is based.
(e) Forfeitures. Any balance remaining in the Participant's Dependent Care Flexible
Spending Account or Health Flexible Spending Account as of the end of the time
for claims reimbursement for each Plan Year and Grace Period (if applicable)
shall be forfeited and deposited in the benefit plan surplus of the Employer
pursuant to Section 6.3 or Section 7.8, whichever is applicable, unless the
Participant had made a claim for such Plan Year, in writing, which has been
denied or is pending; in which event the amount of the claim shall be held in his
account until the claim appeal procedures set forth above have been satisfied or
the claim is paid. If any such claim is denied on appeal, the amount held beyond
the end of the Plan Year shall be forfeited and credited to the benefit plan surplus.
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8.2 APPLICATION OF BENEFIT PLAN SURPLUS
Any forfeited amounts credited to the benefit plan surplus by virtue of the failure of a
Participant to incur a qualified expense or seek reimbursement in a timely manner may, but need
not be, separately accounted for after the close of the Plan Year (or after such further time
specified herein for the filing of claims) in which such forfeitures arose. In no event shall such
amounts be carried over to reimburse a Participant for expenses incurred during a subsequent
Plan Year for the same or any other Benefit available under the Plan; nor shall amounts forfeited
by a particular Participant be made available to such Participant in any other form or manner,
except as permitted by Treasury regulations. Amounts in the benefit plan surplus shall be used
to defray any administrative costs and experience losses or used to provide additional benefits
under the Plan.
ARTICLE IX
ADMINISTRATION
9.1 PLAN ADMINISTRATION
The Employer shall be the Administrator, unless the Employer elects otherwise. The
Employer may appoint any person, including, but not limited to, the Employees of the
Employer, to perform the duties of the Administrator. Any person so appointed shall signify
acceptance by filing written acceptance with the Employer. Upon the resignation or removal of
any individual performing the duties of the Administrator, the Employer may designate a
successor.
If the Employer elects, the Employer shall appoint one or more Administrators. Any
person, including, but not limited to, the Employees of the Employer, shall be eligible to serve
as an Administrator. Any person so appointed shall signify acceptance by filing written
acceptance with the Employer. An Administrator may resign by delivering a written resignation
to the Employer or be removed by the Employer by delivery of written notice of removal, to
take effect at a date specified therein, or upon delivery to the Administrator if no date is
specified. The Employer shall be empowered to appoint and remove the Administrator from
time to time as it deems necessary for the proper administration of the Plan to ensure that the
Plan is being operated for the exclusive benefit of the Employees entitled to participate in the
Plan in accordance with the terms of the Plan and the Code.
The operation of the Plan shall be under the supervision of the Administrator. It shall be
a principal duty of the Administrator to see that the Plan is carried out in accordance with its
terms, and for the exclusive benefit of Employees entitled to participate in the Plan. The
Administrator shall have full power and discretion to administer the Plan in all of its details and
determine all questions arising in connection with the administration, interpretation, and
application of the Plan. The Administrator may establish procedures, correct any defect, supply
any information, or reconciles any inconsistency in such manner and to such extent as shall be
deemed necessary or advisable to carry out the purpose of the Plan. The Administrator shall
have all powers necessary or appropriate to accomplish the Administrator's duties under the
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Plan. The Administrator shall be charged with the duties of the general administration of the
Plan as set forth under the Plan, including, but not limited to, in addition to all other powers
provided by this Plan:
(a) To make and enforce such procedures, rules and regulations as the
Administrator deems necessary or proper for the efficient administration
of the Plan;
(b) To interpret the provisions of the Plan, the Administrator's
interpretations thereof in good faith to be final and conclusive on all
persons claiming benefits by operation of the Plan;
(c) To decide all questions concerning the Plan and the eligibility of any
person to participate in the Plan and to receive benefits provided by
operation of the Plan;
(d) To reject elections or to limit contributions or Benefits for certain highly
compensated participants if it deems such to be desirable in order to avoid
discrimination under the Plan in violation of applicable provisions of the
Code;
(e) To provide Employees with a reasonable notification of their benefits
available by operation of the Plan and to assist any Participant regarding
the Participant's rights, benefits or elections under the Plan;
(f) To keep and maintain the Plan documents and all other records
pertaining to and necessary for the administration of the Plan;
(g) To review and settle all claims against the Plan, to approve reimbursement
requests, and to authorize the payment of benefits if the Administrator
determines such shall be paid if the Administrator decides in its discretion
that the applicant is entitled to them. This authority specifically permits
the Administrator to settle disputed claims for benefits and any other
disputed claims made against the Plan;
(h) To appoint such agents, counsel, accountants, consultants, and other
persons or entities as may be required to assist in administering the
Plan.
Any procedure, discretionary act, interpretation or construction taken by the
Administrator shall be done in a nondiscriminatory manner based upon uniform principles
consistently applied and shall be consistent with the intent that the Plan shall continue to comply
with the terms of Code Section 125 and the Treasury regulations thereunder.
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9.2 EXAMINATION OF RECORDS
The Administrator shall make available to each Participant, Eligible Employee and any
other Employee of the Employer such records as pertain to their interest under the Plan for
examination at reasonable times during normal business hours.
9.3 PAYMENT OF EXPENSES
Any reasonable administrative expenses shall be paid by the Employer unless the
Employer determines that administrative costs shall be borne by the Participants under the Plan
or by any Trust Fund which may be established hereunder. The Administrator may impose
reasonable conditions for payments, provided that such conditions shall not discriminate in
favor of highly compensated employees.
9.4 INSURANCE CONTROL CLAUSE
In the event of a conflict between the terms of this Plan and the terms of an Insurance
Contract of an independent third party Insurer whose product is then being used in conjunction
with this Plan, the terms of the Insurance Contract shall control as to those Participants
receiving coverage under such Insurance Contract. For this purpose, the Insurance Contract
shall control in defining the persons eligible for insurance, the dates of their eligibility, the
conditions which must be satisfied to become insured, if any, the benefits Participants are
entitled to and the circumstances under which insurance terminates.
9.5 INDEMNIFICATION OF ADMINISTRATOR
The Employer agrees to indemnify and to defend to the fullest extent permitted by law
any Employee serving as the Administrator or as a member of a committee designated as
Administrator (including any Employee or former Employee who previously served as
Administrator or as a member of such committee) against all liabilities, damages, costs and
expenses (including attorney's fees and amounts paid in settlement of any claims approved by
the Employer) occasioned by any act or omission to act in connection with the Plan, if such act
or omission is in good faith.
ARTICLE X
AMENDMENT OR TERMINATION OF PLAN
10.1 AMENDMENT
The Employer, at any time or from time to time, may amend any or all of the provisions
of the Plan without the consent of any Employee or Participant. No amendment shall have the
effect of modifying any benefit election of any Participant in effect at the time of such
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amendment, unless such amendment is made to comply with Federal, state or local laws,
statutes or regulations.
10.2 TERMINATION
The Employer reserves the right to terminate this Plan, in whole or in part, at any time.
In the event the Plan is terminated, no further contributions shall be made. Benefits under any
Insurance Contract shall be paid in accordance with the terms of the Insurance Contract.
No further additions shall be made to the Health Flexible Spending Account or
Dependent Care Flexible Spending Account, but all payments from such fund shall continue to
be made according to the elections in effect until 90 days after the termination date of the Plan.
Any amounts remaining in any such fund or account as of the end of such period shall be
forfeited and deposited in the benefit plan surplus after the expiration of the filing period.
ARTICLE XI
MISCELLANEOUS
11.1 PLAN INTERPRETATION
All provisions of this Plan shall be interpreted and applied in a uniform,
nondiscriminatory manner. This Plan shall be read in its entirety and not severed except as
provided in Section 11.12.
In the event the terms or provisions of any summary or description of this Plan conflict,
the provisions of this Plan shall control unless otherwise provided by law.
11.2 GENDER AND NUMBER
Wherever any words are used herein in the masculine, feminine or neuter gender, they
shall be construed as though they were also used in another gender in all cases where they
would so apply, and whenever any words are used herein in the singular or plural form, they
shall be construed as though they were also used in the other form in all cases where they would
so apply.
11.3 WRITTEN DOCUMENT
This Plan, in conjunction with any separate written document which may be required by
law, is intended to satisfy the written Plan requirement of Code Section 125 and any Treasury
regulations thereunder relating to cafeteria plans.
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11.4 EXCLUSIVE BENEFIT
This Plan shall be maintained for the exclusive benefit of the Employees who participate
in the Plan. The right of any Participant to receive any reimbursement under this Plan is not
transferrable or assignable and shall not be subject to claims by the Participant's creditors by
any process whatsoever.
11.5 PARTICIPANT'S RIGHTS
This Plan shall not be deemed to constitute an employment contract between the
Employer and any Participant or to be a consideration or an inducement for the employment of
any Participant or Employee. Nothing contained in this Plan shall be deemed to give any
Participant or Employee the right to be retained in the service of the Employer or to interfere
with the right of the Employer to discharge any Participant or Employee at any time regardless
of the effect which such discharge shall have upon him as a Participant of this Plan.
11.6 ACTION BY THE EMPLOYER
Whenever the Employer under the terms of the Plan is permitted or required to do or
perform any act or matter or thing, it shall be done and performed by a person duly authorized
by its legally constituted authority.
11.7 EMPLOYER'S PROTECTIVE CLAUSES
(a) Insurance purchase. Upon the failure of either the Participant or the Employer to
obtain the insurance contemplated by this Plan (whether as a result of negligence,
gross neglect or otherwise), the Participant's Benefits shall be limited to the
insurance premium(s), if any, that remained unpaid for the period in question and
the actual insurance proceeds, if any, received by the Employer or the Participant
as a result of the Participant's claim.
(b) Validity of insurance contract. The Employer shall not be responsible for the
validity of any Insurance Contract issued hereunder or for the failure on the part
of the Insurer to make payments provided for under any Insurance Contract. Once
insurance is applied for or obtained, the Employer shall not be liable for any loss
which may result from the failure to pay Premiums to the extent Premium notices
are not received by the Employer.
11.8 NO GUARANTEE OF TAX CONSEQUENCES
Neither the Administrator nor the Employer makes any commitment or guarantee that
any amounts paid to or for the benefit of a Participant under the Plan will be excludable from
the Participant's gross income for federal or state income tax purposes, or that any other federal
or state tax treatment will apply to or be available to any Participant. It shall be the obligation of
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each Participant to determine whether each payment under the Plan is excludable from the
Participant's gross income for federal and state income tax purposes, and to notify the Employer
if the Participant has reason to believe that any such payment is not so excludable.
Notwithstanding the foregoing, the rights of Participants under this Plan shall be legally
enforceable.
11.9 INDEMNIFICATION OF EMPLOYER BY PARTICIPANTS
If any Participant receives one or more payments or reimbursements under the Plan that
are not for a permitted Benefit, such Participant shall indemnify and reimburse the Employer for
any liability it may incur for failure to withhold federal or state income tax or Social Security
tax from such payments or reimbursements. However, such indemnification and reimbursement
shall not exceed the amount of additional federal and state income tax (plus any penalties) that
the Participant would have owed if the payments or reimbursements had been made to the
Participant as regular cash compensation, plus the Participant's share of any Social Security tax
that would have been paid on such compensation, less any such additional income and Social
Security tax actually paid by the Participant.
11.10 FUNDING
Unless otherwise required by law, contributions to the Plan need not be placed in trust or
dedicated to a specific Benefit, but may instead be considered general assets of the Employer.
Furthermore, and unless otherwise required by law, nothing herein shall be construed to require
the Employer or the Administrator to maintain any fund or segregate any amount for the benefit
of any Participant, and no Participant or other person shall have any claim against, right to, or
security or other interest in, any fund, account or asset of the Employer from which any
payment under the Plan may be made.
1.11 GOVERNING LAW
This Plan is governed by the Code and the Treasury regulations issued thereunder (as
they might be amended from time to time). In no event shall the Employer guarantee the
favorable tax treatment sought by this Plan. To the extent not preempted by Federal law, the
provisions of this Plan shall be construed, enforced and administered according to the laws of
the State of California.
11.12 SEVERABILITY
If any provision of the Plan is held invalid or unenforceable, its invalidity or
unenforceability shall not affect any other provisions of the Plan, and the Plan shall be construed
and enforced as if such provision had not been included herein.
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11.13 CAPTIONS
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.
11.14 CONTINUATION OF COVERAGE (COBRA)
Notwithstanding anything in the Plan to the contrary, in the event any benefit under this
Plan subject to the continuation coverage requirement of Code Section 4980B becomes
unavailable, each Participant will be entitled to continuation coverage as prescribed in Code
Section 498013, and related regulations. This Section shall only apply if the Employer employs
at least twenty (20) employees on more than 50% of its typical business days in the previous
calendar year.
11.15 FAMILY AND MEDICAL LEAVE ACT (FMLA)
Notwithstanding anything in the Plan to the contrary, in the event any benefit under this
Plan becomes subject to the requirements of the Family and Medical Leave Act and regulations
thereunder, this Plan shall be operated in accordance with Regulation 1.125 -3.
11.16 HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT
( HIPAA)
If applicable, this Plan shall be operated in accordance with HIPAA and regulations
thereunder.
11.17 UNIFORM SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT
(USERRA)
Notwithstanding any provision of this Plan to the contrary, contributions, benefits and
service credit with respect to qualified military service shall be provided in accordance with the
Uniform Services Employment And Reemployment Rights Act (USERRA) and the regulations
thereunder.
11.18 COMPLIANCE WITH HIPAA PRIVACY STANDARDS
(a) Application. If any benefits under this Cafeteria Plan are subject to the
Standards for Privacy of Individually Identifiable Health Information (45
CFR Part 164, the "Privacy Standards "), then this Section shall apply.
(b) Disclosure of PHI. The Plan shall not disclose Protected Health
Information to any member of the Employer's workforce unless each of
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(9) If feasible, return or destroy all Protected Health Information received
from the Plan that the Employer still maintains in any form, and retain no
copies of such information when no longer needed for the purpose for
which disclosure was made, except that, if such return or destruction is not
feasible, limit further uses and disclosures to those purposes that make the
return or destruction of the information infeasible; and
(10) Ensure the adequate separation between the Plan and members of the
Employer's workforce, as required by Section 164.504(f)(2)(iii) of the
Privacy Standards and set out in (d) above.
11.19 COMPLIANCE WITH HIPAA ELECTRONIC SECURITY STANDARDS
Under the Security Standards for the Protection of Electronic Protected Health
Information (45 CFR Part 1 64.300 et. seq., the "Security Standards "):
(a) Implementation. The Employer agrees to implement reasonable and
appropriate administrative, physical and technical safeguards to protect
the confidentiality, integrity and availability of Electronic Protected
Health Information that the Employer creates, maintains or transmits on
behalf of the Plan. "Electronic Protected Health Information" shall have
the same definition as set out in the Security Standards, but generally
shall mean Protected Health Information that is transmitted by or
maintained in electronic media.
(b) Agents or subcontractors shall meet security standards. The
Employer shall ensure that any agent or subcontractor to whom it
provides Electronic Protected Health Information shall agree, in writing,
to implement reasonable and appropriate security measures to protect
the Electronic Protected Health Information.
(c) Employer shall ensure security standards. The Employer shall ensure
that reasonable and appropriate security measures are implemented to
comply with the conditions and requirements set forth in Section IL 18.
11.20 MENTAL HEALTH PARITY AND ADDICTION EQUITY ACT
Notwithstanding anything in the Plan to the contrary, the Plan will comply with the
Mental Health Parity and Addiction Equity Act.
11.21 GENETIC INFORMATION NONDISCRIMINATION ACT (GINA)
Notwithstanding anything in the Plan to the contrary, the Plan will comply with the
Genetic Information Nondiscrimination Act.
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11.22 WOMEN'S HEALTH AND CANCER RIGHTS ACT
Notwithstanding anything in the Plan to the contrary, the Plan will comply with the
Women's Health and Cancer Rights Act of 1998.
11.23 NEWBORNS' AND MOTHERS' HEALTH PROTECTION ACT
Notwithstanding anything in the Plan to the contrary, the Plan will comply with the
Newborns' and Mothers' Health Protection Act.
IN WITNESS WHEREOF, this Plan document is hereby executed this
day of. - - -- ..
CITY OF EL SEGUNDO
al
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ADOPTING RESOLUTION
The undersigned Principal of City of El Segundo (the Employer) hereby certifies
that the following resolutions were duly adopted by the Employer on
and that such resolutions have not been modified or rescinded as of the date hereof:
RESOLVED, that the City of El Segundo Flexible Benefits Plan, a form of
amended Cafeteria Plan, including a Dependent Care Flexible Spending Account and
Health Flexible Spending Account, including any recommended revisions by legal counsel,
to become effective October 1, 2016, (Plan) is hereby approved and adopted;
RESOLVED, that the City Manager is hereby authorized and directed to
take action necessary to implement the Plan, including designating an Administrator for the
Plan, or one or more counterparts of the Plan.
RESOLVED, that the Administrator shall be instructed to take such actions
that are deemed necessary and proper in order to implement the Plan, and to set up adequate
accounting and administrative procedures to provide benefits under the Plan.
The undersigned further certifies that attached hereto as Exhibit A is a copy of
the City of El Segundo Flexible Benefits Plan as amended and restated effective October 1,
2016, approved and adopted in the foregoing resolutions.
Principal
Date
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