15-0804_ORANGE COUNTY EMPLOYEES' RETIREMENT SYSTEM_F6_Agenda ReportTO:
City of San Juan Capistrano
Agenda Report
Honorable Mayor and Members cil
FROM: Tom Bokosky, Human Resources
DATE: August 4, 2015
F6
SUBJECT: Consideration of a Resolution Amending and Restating the City of San
Juan Capistrano Replacement Benefits Plan and a Memorandum of
Understanding with the Orange County Employees' Retirement System
RECOMMENDATION:
By motion, adopt a resolution amending and restating the City of San Juan Capistrano
Replacement Benefits Plan and authorize the City Manager to enter into a Memorandum of
Understanding with the Orange County Employees Retirement System for the
administration of the Plan.
EXECUTIVE SUMMARY:
The City contracts with the Orange County Employees' Retirement System (OCERS) to
allow participation of eligible employees in its retirement system. Federal law
establishes the maximum amount of pension benefits OCERS is allowed to pay an
individual in any one year. The maximum benefit for calendar year 2015 is limited to
$210,000 for someone retiring between the ages of 62 and 65; however, this amount is
actuarially reduced for benefits beginning before age 62 and benefits to a participant
who has less than 10 years of participation in OCERS (Attachment 1).
Effective January 1, 2004, Government Code Section 31899.4 obligated the City to
establish a replacement benefit program (i.e., replacement benefits plan) to make up
the difference between the benefit the member is entitled to receive and the amount
OCERS is allowed to pay. There is no anticipated fiscal impact because the City
payments for benefits due from the replacement benefits plan are offset against City
required contributions to OCERS.
The recommendation is that the City Council adopts a resolution amending and restating the
City of San Juan Capistrano Replacement Benefits Plan and authorizing the City Manager
to enter into a Memorandum of Understanding with the OCERS for the administration of the
Plan (Attachment 2).
City Council Agenda Report
August 4, 2015
Pa e 2 of 5
DISCUSSION/ANALYSIS:
The City contracts with OCERS to allow participation of eligible employees in its
retirement system. The benefits payable by OCERS are restricted by Section 415(b) of
the Internal Revenue Code ("Code") which establishes limits to the amount in benefit
payments that OCERS can pay in a calendar year. Government Code Section 31899.4,
added to the County Employees Retirement Act of 1937 ("1937 Act") effective January
1, 2004, obligated the City to establish a replacement benefit program (i.e., replacement
benefit plan) to make up the difference between the benefit the member is entitled to
receive and the amount OCERS can legally pay.
Federal Limitations on Benefits Paid by OCERS:
Federal law imposes a benefit cap on retirement benefits pursuant to Code Section
415(b). This section establishes the maximum amount of pension benefits OCERS is
allowed to pay an individual in any one year. The maximum benefit for calendar year
2015 is limited to $210,000 for someone retiring between the ages of 62 and 65;
however, this amount is actuarially reduced for benefits beginning before age 62 and
benefits to a participant who has less than 10 years of participation in OCERS.
However, Code Section 415(m) permits public employers to adopt a replacement
benefits plan for those retired employees whose retirement allowance is limited by Code
Section 415(b) for the purpose paying out the benefit limited by Code Section 415(b).
Although retirees that accrued service credit through the City's contract with OCERS
have yet to be impacted by the limitations of Code Section 415(b), it is anticipated that
future retirees will be affected.
City's Obligation to Provide for a Replacement Benefits Plan under State Law:
Effective January 1, 2004, the California Government Code obligated agencies
participating in a 1937 Act plan, such as OCERS, to provide a replacement benefits
plan to replace earned retirement benefits that may be limited by Code Section 415(b).
Pursuant to Government Code Section 31899.4
"Each county and district shall provide a program to replace the benefits that are
limited by Section 415 of the Internal Revenue Code for members whose
retirement benefits are limited by Section 415 and cannot be fully maximized
pursuant to Section 31538. The replacement benefits program shall provide
benefits that, together with the benefits provided by the retirement system, are
the same as, and may not exceed the benefits that would be paid by the
retirement system but for the application of the limits of Section 415."
City Council Agenda Report
August 4, 2015
Pa e 3 of 5
Effect of PEPRA (Pension Reform) on Recommended Action:
One of the pension reform measures in PEPRA, Government Code Section 7522.43,
provides that a public employer that does not offer a replacement benefits plan prior to
January 1, 2013, cannot offer such a plan for any employee, including existing
employees, or on after January 1, 2013. In addition, employees deemed "new
members" as that term is defined in Government Code Section 7522.04(f) are precluded
from participating in a replacement benefits plan by Government Code Section 7522.43.
The City Attorney has opined that Government Code Section 7522.43 does not
preclude the City from taking the recommended action since the City of San Juan
Capistrano Replacement Benefits Plan (the "Plan") was originally provided for under the
terms of California Government Code Section 31899.4 effective January 1, 2004.
However, to date, there has been no need to operate and administer the Plan due to the
fact that the retirement benefits of City employees have not been limited by Section
415(b ). Since the Plan is deemed to have been originally provided for effective January
1, 2004, the requested action is an amendment and restatement of an existing
replacement benefits plan. However, employees deemed "new members" as that term
is defined in Government Code Section 7522.04(f) are precluded from participating in a
replacement benefits plan.
OCERS Requested Modifications:
OCERS recently informed City staff that it would be necessary to put the Plan into
operation because it is anticipated that the retirement benefits of future City retirees,
other than those deemed "new members" under the provisions of California
Government Code Section 7522.04(f), could be limited by Section 415(b) and that, as
such, it would be necessary to amend and restate the Plan to incorporate several
provisions required by OCERS and to comply with the limitations of California
Government Code Section 7522.43.
Proposed Replacement Benefits Plan and Memorandum of Understanding:
City staff has worked with the City Attorney to prepare a draft replacement benefits plan
for the City Council's consideration. The draft plan has been prepared in accordance
with Code Section 415(b) and the regulations thereunder and pursuant to Government
Code Sections 7522.43 and 31899.4. The City Attorney has also prepared a
Memorandum of Understanding between the City and OCERS which sets out the
responsibilities of the City and OCERS with respect to the operation of the replacement
benefits plan, including OCERS' obligation to offset benefits paid by the City under the
replacement benefits plan against contributions due by the City to OCERS. OCERS
legal staff has reviewed and approved both the draft Replacement Benefits Plan and the
Memorandum of Understanding (Attachment 2).
City Council Agenda Report
August 4, 2015
Pa e 4 of 5
Failure to adopt the amended and restated replacement benefits plan would expose the
City to future liability by any retired employee whose retirement allowance is limited by
Code Section 415(b). The courts have definitively ruled that the right to a pension
benefit that has been earned and accrued by a public employee is a vested right which
cannot be impaired (the foregoing does not apply to employees deemed "new
members" under the provisions of Government Code Section 7522.04(f), in light of
Government Code Section 7522.43). Thus, even though federal law limits the amount
of benefits, state law makes it mandatory that the City provide a replacement benefits
plan to pay retirement benefits, already earned and accrued, for any retired employee
(other than those deemed "new members" pursuant to Government Code Section
7522.04(f)) whose benefits are limited by Code Section 415(b). As a result, if the City
fails to adopt the amended and restated replacement benefits plan and the retirement
benefits of any such employee are limited by Code Section 415(b), the City will still have
to pay the excess benefit.
In addition, Section 4 of the proposed Memorandum of Understanding between the City
and OCERS provides that City contributions to OCERS will be adjusted to take into
account payments made pursuant to the replacement benefits plan, in accordance with
recommendations by the OCERS actuary. This provision is pursuant to Government
Code Section 31899.4(d). Whether or not an adjustment to the City's contributions to
OCERS are recommended by the OCERS actuary, the fact is that the opportunity for
any adjustments will not materialize if the Plan is not amended and restated to be
consistent with the modifications required by OCERS.
FISCAL IMPACT:
There is no anticipated fiscal impact by amending and restating the replacement
benefits plan. However, if the City does not adopt the amended and restated
replacement benefits plan, the obligation to pay benefits limited by Section 415(b)
remains and the OCERS offset will be lost.
ENVIRONMENTAL IMPACT:
Not applicable.
PRIOR CITY COUNCIL REVIEW:
Not applicable.
COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS:
Not applicable.
City Council Agenda Report
August 4, 2015
Pa e 5 of 5
NOTIFICATION:
Orange County Employees Retirement System
A TT ACHMENT(S):
Attachment 1 -Section 415 Limits
Attachment 2 -Resolution
Segal Consulting
December 9, 2014
Ms. Brenda Shott
Assistant CEO of Finance & Internal Operations
Orange County Employees Retirement System
2223 Wellington Avenue
Santa Ana, CA 92701-3101
Re: 415 Dollar Limit f()r 2015
Dear Brenda:
We are providing OCERS with a table of Section 415 Dollar Limits, reflecting the annual age
62 Dollar Limit of$210,000, for calendar year 2015. Based on the instructions below, the
System may use this table to identify members who may potentially be impacted by Section
415 in 2015.
BACKGROUND AND METHODOLOGY
Based on our understanding of the Internal Revenue Code (IRC) and the Final415 Regulations
("Final Regs"), the "Worker, Retiree and Employer Recovery Act of2008" (WRERA) aligned
the mortality table used in adjusting the Dollar Limits for benefits beginning before age 62 with
the mortality table used to value minimum lump sums under IRC Section 417( e )(3 )(B) and
there are distinct mortality tables for this purpose that apply to Annuity Starting Dates in
calendar years 2009 through 2013 published in IRS Notice 2008-85, and in calendar years 2014
through 2015 published in IRS Notice 2013-49.
Developed using the mortality assumptions specified for 2015, the attached table of Section
415 Dollar Limits for 2015 would be applicable for any retiree that commence retirement in
2015. We also understand that the Section 415 Dollar Limits for General and Safety members
who do not meet the "IRS Safety" requirements should be determined with mortality for
members retiring before age 62.
Benefits, Compons<~tion and HR Consulting_ Member of The Segal Group. Offices throughout the United States and Canada
Ms. Brenda Shott
December 9, 2014
Page 2
The Dollar Limits calculated using the above methodology together with a 5% interest rate are
provided in the enclosed Table. For members covered under the legacy tiers who retire after
age 65, we understand that no adjustments to the Dollar Limits are necessary because the plan's
retirement factors for these members do not increase beyond that age. For General members
covered under the CalPEPRA formulas, there may be a need to adjust the Dollar Limits after
age 65 because the retirement factors for these members increase beyond age 65. However, for
the purposes of screening, we believe the enclosed table can also be used for these members as
this table will provide more conservative screening for General CalPEPRA members retiring
after age 65.
Please note that the Dollar Limits provided in the enclosed Table should only be applied to the
employer provided benefit. Any benefit paid for by the member's after-tax contributions plus
interest earned on those contributions should be excluded from the test. We recommend that
you consult with us and your legal counsel if you have any questions on how the 415 rules
should be applied before you reduce a member's benefit.
Please let us know if you have any questions.
Sincerely,
frk c)v', \ Li 'V>-·~-·v
Andy Yeung
JZR/bqb
Enclosure
5341710v 1/05794.001
Table -Limit On Employer-Provided Benefits f(lr Calendar Year 2015
(With Mortality Decrement for Members Retiring Before Age 62)
Based on Mortality Table Specified in Internal Revenue Code Section 417( e)(3)(B)
for 2015, as published in IRS Notice 2013-49 and 5.00% Interest
415 LIMIT 415 LIMIT
AGE FOR2015 AGE FOR2015
41 $53,873 61 $194,636
42 57,054 62 210,000
43 60,451 63 210,000
44 64,082 64 210,000
45 67,967 65 & Over 210,000
46 72,128
47 76,590
48 81,380
49 86,528
50 92,070
51 98,043
52 104,492
53 111,465
54 119,017
55 127,213
56 136,122
57 145,825
58 156,414
59 167,995
60 180,688
Limits must be further reduced for members with less than l 0 years of plan participation.
Limits not reduced below age 62 for members with 15 or more years of qualified police
or firefighter service.
Limits must be adjusted for members receiving a non-qualified joint and survivor annuity.
M:\OCERS.CLI\415limits\[OCERS_Dollar Limits.xlsx]2015 limits
534171 Ov 1/05794.00 I SEGAL CONSULTING
RESOLUTION NO. 15-08-04-xx
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN
CAPISTRANO, CALIFORNIA AMENDING AND RESTATING THE CITY OF
SAN JUAN CAPISTRANO REPLACEMENT BENEFITS PLAN AND
AUTHORIZING THE CITY MANAGER TO ENTER INTO A MEMORANDUM
OF UNDERSTANDING WITH THE ORANGE COUNTY EMPLOYEES'
RETIREMENT SYSTEM FOR THE ADMINISTRATION OF THE PLAN
WHEREAS, the Orange County Employees' Retirement Systems ("OCERS")
provides retirement benefits to retired employees of the City of San Juan Capistrano
("City"); and,
WHEREAS, the amount of retirement benefits that can be provided by OCERS to
retired City employees is limited by Section 415(b) of the Internal Revenue Code ("Section
415(b)"); and,
WHEREAS, the Internal Revenue Code allows the City to establish a replacement
benefits plan to pay the full retirement benefits earned by City employees that are OCERS
members whose benefits are limited by Section 415(b), and it is the City's responsibility
under the County Employees' Retirement Law of 1937 ("CERL") to provide a program to
replace retirement benefits that cannot be paid by OCERS because of the limits of Section
415(b); and,
WHEREAS, the City of San Juan Capistrano Replacement Benefits Plan (the
"Plan") was originally provided for under the terms of California Government Code Section
31899.4 effective January 1, 2004 but there was no need to administer the Plan due to the
fact that the retirement benefits of City employees have not been limited by Section 415(b );
and,
WHEREAS, OCERS recently informed the City that it would be necessary to put the
Plan into operation because it is anticipated that the retirement benefits of future City
retirees, other than those deemed "new members" under the provisions of California
Government Code Section 7522.04(f), could be limited by Section 415(b) and that, as
such, it would be necessary to amend and restate the Plan to incorporate several
provisions required by OCERS and to comply with the limitations of California Government
Code Section 7522.43; and,
WHEREAS, it is to the benefit of the City to ensure that all retired City employees
receive the entire retirement benefits which they would earn under OCERS but for the
limits of Section 415(b); and,
Attachment 2
WHEREAS, the most efficient way for the City to administer a replacement benefits
plan is to enter into a memorandum of understanding with OCERS setting out the
responsibilities of the City and OCERS with respect to the Plan.
NOW, THEREFORE, BE IT FURTHER RESOLVED, by the City Council of the City
of San Juan Capistrano, as follows:
1. That the City of San Juan Capistrano Replacement Benefits Plan ("Plan"),
originally provided for under the terms of California Government Code
Section 31899.4 effective January 1, 2004, is hereby amended and restated,
in the form attached hereto at Exhibit "A" and incorporated herein by this
reference, effective August 4, 2015,
2. That City Manager is hereby authorized to enter into a memorandum of
understanding with the Orange County Employees' Retirement System
("OCERS"), in the form attached hereto at Exhibit "B" and incorporated
herein by this reference, which sets out the respective responsibilities of the
City and OCERS with respect to the Plan.
PASSED, APPROVED, AND ADOPTED this 4th day of August, 2015.
DEREK REEVE, MAYOR
ATTEST:
MARIA MORRIS, CITY CLERK
Exhibit A
CITY OF SAN JUAN CAPISTRANO
REPLACEMENT BENEFITS PLAN
ARTICLE I
ESTABLISHMENT AND PURPOSE
1.1 Establishment. The City of San Juan Capistrano Replacement Benefits Plan (the
"Plan") was originally provided for under the terms of California Government Code Section
31899.4 effective January 1, 2004, and the City of San Juan Capistrano (the "Employer") hereby
amends and restates the Plan effective August 4, 2015.
1.2 Purpose and Authority. The purpose of the Plan is solely to provide the annual
retirement benefits otherwise earned by and payable to employees of the City of San Juan
Capistrano who are members of the Orange County Employees' Retirement System ("OCERS")
but for the limitations of Section 415(b) of the Internal Revenue Code ("Code"). This Plan is
designed to be a "qualified governmental excess benefit arrangement" under Code Section
415(m) and a "replacement benefits program" within the meaning of Section 31899 et. seq. of
the California Government Code, and will be operated and constroed in accordance with the
foregoing provisions. This Plan shall be deemed a "portion" of OCERS solely to the extent
required by, and within the meaning of, Code Section 415(m)(3) as in effect on January 1, 2004,
and not for any other purpose.
1.3 Effective Date. This Plan was originally effective as of January l, 2004 under the
terms of California Government Code Section 31899.4, and is amended and restated effective
August 4, 2015, or as such later date on which this Plan is approved and made effective by the
City Council of the City of San Juan Capistrano.
1.4 Tax Status of the Plan. This Plan is an "exempt governmental deferred
compensation plan" within the meaning of Code Section 312l(v)(3) and in accordance with
Code Section 3121 (a)(5)(E) shall not be deemed wages for purposes of Social Security and
Medicare taxes. No assets held directly or indirectly for purposes of this Plan shall be held in
trost or otherwise held or set aside for the exclusive benefit of participants and their
beneficiaries. This Plan shall be unfunded within the meaning of federal income tax laws.
below:
ARTICLE II
DEFINITIONS AND CONSTRUCTION
2.1 Definitions. Capitalized terms used in this Plan shall have the meaning set forth
(a) CERL means the County Employees' Retirement Law of 1937 as set forth
in the California Government Code, as amended.
(b) Code means the Internal Revenue Code of 1986, as amended, as
applicable to a governmental plan, or corresponding provisions of any subsequent federal income
tax law. The term shall also include any rules and regulations issued thereunder.
(c) Commencement Date means the date of commencement of participation in
61147.01801\127362942 1
this Plan as set out in Section 3.2 hereof.
(d) Effective Date means the first date with respect to which benefits are
payable under this Plan as forth in Section 1.3 of this Plan.
(e) Eligible Survivor means the surviving spouse, surviving child or children,
survlVlng parent or parents, or surviving beneficiary designated by the Member, to whom
benefits are payable from OCERS on the death of the Member.
(f)
(g)
4.1 of this Plan.
Employer means the City of San Juan Capistrano.
Excess Benefit means the benefit determined in accordance with Section
(h) Member means a member, as defined in the CERL, of OCERS who is a
current or former employee of the Employer. Notwithstanding the preceding, the term
"Member" shall not refer to any current or former employee of the Employer that is considered
a "new member" under California Government Code Section 7522.04(f) and is, therefore,
excluded from participation pursuant to California Government Code Section 7522.43.
(i) OCERS means the Orange County Employees' Retirement System.
U) Participant means a retired Member who participates in this Plan pursuant
to Article 3 of this Plan. An Eligible Survivor is not a Participant in this Plan, but JS a
beneficiary who receives benefits under this Plan with respect to a Participant or Member.
(k) Payment Date means the first date during a Plan Y car with respect to
which payment begins under this Plan.
(I) Plan means this City of San Juan Capistrano Replacement Benefits
Plan.
(m) Plan Administrator means the City of San Juan Capistrano and includes
any person or entity with whom the City of San Juan Capistrano contracts to provide services
under pursuant to the Plan.
(n)
on December 31.
Plan Year means the 12-month period beginning on January I and ending
( o) Retirement Ben~jit means the amount of retirement income payable to a
retiree of OCERS, or the benefit payable to a beneficiary of such retiree, without regard to any
limitation on the retirement income or benefit under Code Section 415(m).
2.2 Construction. Words used in this Plan in tbe masculine gender include the
feminine gender where appropriate, and words used in this Plan in the singular or plural form
include the plural or singular where appropriate.
61147.01801\12736294 2 2
ARTICLE III
PARTICIPATION
3.1 Eligibility. Participation in this Plan is limited solely to retired Members whose
benefits payable by OCERS are limited by Code Section 415(b) for periods on and after the
Effective Date.
3.2 Terms of Participation. A retired Member shall commence participation in this
Plan on the first date, on or after the Effective Date, that the retired Member has an Excess
Benefit. Participation in the Plan ends for ru1y portion of a Plan Year in which the Retirement
Benefit of a retired Member is not limited by Code Section 415(b) or when all benefit obligations
under the Plan to the retired Member have been satisfied. If a Participant has ceased
participation in this Plan but at a later date the full payment of his or her OCERS benefits is
again limited by Code Section 415(b ), he or she shall again commence participation and shall
cease participation as provided herein.
3.3 Eligible Survivors. Any Eligible Survivor of a Member shall receive benefits
under this Plan as of the first date (on or after the Effective Date) on which benefits payable to
him or her from OCERS cannot be fully paid because of the limits of Code Section 415(b ). The
Eligible Survivor's benefits paid under this Plan shall cease as of the first date for which his or
her OCERS benefit is no longer limited by Code Section 415(b) and therefore can be fully paid
by OCERS. The Eligible Survivor's benefits paid under this Plan shall recommence at a later
date if full payment of his or her OCERS benefits is again limited by Code Section 415(b ), and
shall thereafter cease as of the next date that full payment of the OCERS benefit is no longer
limited by Code Section 415(b).
3.4 Limited Participation. No one other than a person described in this Article shall
receive any benefits under this Plan, except as provided in Section 5.2 of this Plan or as
otherwise required by law.
ARTICLE IV
PAYMENT OF BENEFITS
4.1 Initial Excess Benefit Amount. The initial benefit paid under this Plan to any
Participant shall be the difference between the benefit payable to the Participant under OCERS if
it were not limited by Code Section 415(b) and the benefit actually payable to the Participant by
OCERS after reduction in accordance with Code Section 415(b ). This benefit shall be referred to
for purposes of this Plan as the Excess Benefit and shall be determined as of the Commencement
Date.
4.2 Redetermination of Excess Benefit Amount. As of each January 1 following the
Participant's Commencement Date (or the date of commencement of benefits under this Plan for
any Eligible Survivor), the Participant's, or Eligible Survivor's, benefit under this Plan may be
redetermined by OCERS as it deems necessary for the administration of OCERS in accordance
with Section 415(b). At the Plan Administrator's discretion, the amount of every Participant's
and Eligible Survivor's benefits may be redetermined at a date other than January I for
administrative convenience or if there is a material change in the rules governing the maximum
benefit limits established under Code Section 415(b) or a material change in OCERS benefits
61147.01801\12736294.2 3
4.3 Determination of Excess Benefit. The Excess Benefit shall be determined by
OCERS. Notwithstanding the preceding, this Plan and OCERS are separate entities and shall be
administered separately. In addition, separate checks will be paid for the benetits under this Plan
and OCERS. As such, the Plan Administrator shall provide separate tax reporting for the
benefits paid under this Plan. Further, no assets of OCERS shall be used, directly or indirectly,
to pay for benetits or administration or any other costs of this Plan. The Plan Administrator shall
rely on the benefit calculations performed by OCERS for purposes of administering OCERS in
accordance with Code Section 415(b ).
4.4 Amount of Benefit for Eligible Survivors. Eligible Survivors shall be entitled to
benetits under this Plan as follows:
(a) Eligible Survivors shall be entitled to benetits under this Plan only if they
are entitled to benefits that are limited by Code Section 415(b) under OCERS after the death of a
Member or Participant.
(b) The benefit paid to an Eligible Survivor under this Plan shall be
determined as if he or she were the Participant, substituting in the calculations under
Sections 4.1 or 4.2, as applicable, the amounts due to the Eligible Survivor for the amounts
due to the Participant.
4.5 Time tor Payment. In any Plan Year, benetits shall only be paid under this
Plan to a Participant or Eligible Survivor after the date in the Plan Year that the benefits paid
to such person from OCERS have reached the maximum annual benefit that OCERS can pay
under Code Section 415(b) for that Plan Year. The day after the maximum annual benefit
payment from OCERS is reached is the Payment Date for the Participant or Eligible Survivor
for that Plan Year. The Payment Date may change from Plan Y car to Plan Year as the
amount payable under this Plan is redetermined. The amount of benefits provided under this
Plan shall be paid monthly starting as of the Payment Dale and continuing through the end of the
Plan Year, or (if earlier) the date that participation ceases (or, tor an Eligible Survivor, the date
that they would cease participation if an Eligible Survivor were treated as a Participant). If a
retired Participant is reemployed by the Employer or another employer participating in
OCERS and on reemployment his or her OCERS benefits cease, then his or her benellts
under this Plan shall cease at the same time. Benefits shall resume under this Plan when the
Member again starts to receive benefits under OCERS. At that time, a recalculation shall be
made under Section 4.2 hereof, treating the first month for which OCERS beneflts resume as
if it were a date of recalculation under Section 4.2. Similar rules shall apply if the benefits of
an Eligible Survivor under OCERS cease (or resume) under OCERS for any reason,
including without limitation ceasing to be an Eligible Survivor.
4.6 Form of Benefit. The benefit paid to a Participant or Eligible Survivor under
this Plan shall be paid in the same form as beneflts are paid to him or her under OCERS. No
election shall be provided at any time to the Participant or Eligible Survivor, directly or
indirectly, to defer compensation under the Plan.
4.7 Taxes. The Plan Administrator shall have full authority to withhold any and
all taxes that are or may be due from any and all amounts paid under the Plan (including but
not limited to income and payroll taxes), to pay them to the appropriate government agency,
and to file and distribute necessary or appropriate tax reports and form.
6114701801\12736294.2 4
4.8 Determination Solely by Plan Administrator. Subject to this Article IV, the
Plan Administrator shall have the sole authority to determine the amount of benefits payable
under this Plan.
4.9 Condition for Paving Benefits. No amount shall be paid to any person under
this Plan unless such person provides, or makes readily available, to the Plan Administrator
all information necessary or appropriate to provide such benefits, including but not limited to
information concerning his or her benefits provided under OCERS and information used by
OCERS for determining those benefits.
ARTICLE V
ASSIGNMENT OF BENEFITS
5 .I Prohibition against Assignments. No benefit payable from the Plan to any
Participant or Eligible Survivor or any other person shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or charge, and any
attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, or charge the same shall
be void. No such benefit shall in any manner be liable for, or subject to, the debts, contracts,
liabilities, engagements, or torts of any such person, nor shall it be subject to execution,
attachment or any process whatsoever for or against such person, except to such extent as may be
required by law.
5.2 Payment upon Marital Dissolution or Legal Separation. The proviSions of
Section 5.1 will not apply in the case of any property settlements upon marital dissolution or
legal separation that are made in accordance with a domestic relations order (DRO) issued in
accordance with state domestic relations law. The provisions of Section 5.1 will apply in the
case of any property settlement upon marital dissolution or legal separation which is made in
accordance with a domestic relations order that is not qualified in accordance with this
Section. When the Plan Administrator receives a domestic relations order, the Plan
Administrator shall:
(a) Notify the Participant (or Eligible Survivor) and the former spouse or
dependent covered by the domestic relations order of the receipt of the order with a notice which
explains the procedures for determining the qualified status of domestic relations orders; and
(b) Under procedures established by the Plan Administrator, determine the
qualified status of the domestic relations order.
For purposes of this Section, "domestic relations order" means any judgment,
decree, or order made in accordance with state domestic relations law which relates to the
provision of child support, spousal maintenance, or marital property rights of any spouse, former
spouse, child or other dependent of a Participant. A domestic relations order shall not be
considered a DRO with respect to this Plan if it is inconsistent with the Plan. To the extent
practicable, the rules under the CERL governing the treatment of a domestic relations order shall
equally govern payment of benefits under this Plan.
61147.01801\12736294.2 5
ARTICLE VI
ADMINISTRATION OF PLAN
6.1 Powers of Plan Administrator. The Employer shall administer the Plan, and in
such capacity shall be the Plan Administrator. In addition to the powers of the Plan
Administrator specified elsewhere in the Plan, the Plan Administrator shall be responsible for
the general administration and interpretation of the Plan and for carrying out its provisions,
and shall have such powers as may be necessary or appropriate to discharge its duties
hereunder, including, without limitation, the following:
(a) The Plan Administrator may adopt such Plan regulations, interpretations
and procedures as it deems are necessary or appropriate for the effective operation of the Plan.
(b) The Plan Administrator shall have the right to delegate administrative
duties with regard to the management and operation of the Plan (except that no employee or
agent of the Plan Administrator shall have the authority to modify this Plan or to make
representations, warranties or inducements that may provide benefits or any other payment
other than as set forth in this Plan and the applicable Plan regulations. Any such
representations, warranties, or inducements shall be null and void.
(c) The Plan Administrator shall act with respect to this Plan separately and
apart from any duties that he or she may have with respect to any other retirement plan.
(d) The Plan Administrator shall determine all issues relating to the rights of
Participants and Eligible Survivors and any other persons, and any legal representatives thereof,
under the terms of the Plan, including but not limited to eligibility, the amount and time of
payment of the benefit and the calculation of any benefit under the Plan.
(e) The Plan Administrator shall determine any factual questions arising in
connection with the Plan's operation or administration after such investigation or hearing as the
Plan Administrator deems necessary and appropriate.
(f) The Plan Administrator may engage legal, administrative, actuarial,
investment, accounting, consulting or other services as the Plan Administrator deems necessary
or appropriate.
(g) The Plan Administrator may request and receive from Members and
Participants and other appropriate persons such information as necessary or appropriate for the
proper administration of the Plan, including, without limitation, information to detennine each
Participant's eligibility to participate in the Plan and the benefits payable to each Participant or
his or her Eligible Survivor.
6.2 Absolute Discretion of the I'_] an i\dministrator. The Plan Administrator (or any
individual acting on its behalt) shall, in its sole and absolute discretion, construe and
interpret the terms and conditions of the Plan, and any issue arising out of, relating to, or
resulting from the administration and operation of the Plan, which interpretation or
construction shall be final and binding on all parties, including, without limitation, any
Member, Participant or Eligible Survivor.
61147.01801\12736294.2 6
6.3 Costs of Administration. The costs of administration of the Plan shall be paid by
the Employer. Such expenses shall include, but are not limited to, expenses for professional,
legal, accounting and other services and other necessary or appropriate costs of administration.
No costs or expenses of administering this Plan shall be paid, directly or indirectly, by OCERS.
Further, no assets of OCERS shall be used, directly or indirectly, to pay for benefits or
administration or any other costs of this Plan.
6.4 Claims Review Procedure. Any person who has a claim for benefits under this
Plan and who does not receive such benefits must make a written claim for benefits with the
Plan Administrator at the time and in the fonn and manner determined by the Plan
Administrator. The Plan Administrator shall provide notice in writing to any person whose
claim for benefits under the Plan is denied, and the Plan Administrator shall provide such
person a review of its decision with respect to such claim, if requested in writing by the person
who has made the claim.
6.5 Correction of Errors. If an error or omission is discovered in the administration
of the Plan, the Plan Administrator shall take such necessary or appropriate and equitable
action as may be necessary or appropriate to correct the error. Such action shall include but
not be limited to taking all reasonable or necessary action to recover overpayments of
benefits under the Plan.
6.6 Written Communications Mailed. All written notices or communications to
Participants and Eligible Survivors and any other person who may be entitled to benefits under
this Plan shall be effective when sent by first class United States mail to the individual's last
known address. Any notice or document required to be given to or filed with the Plan
Administrator shall be properly given or filed if delivered or sent by first class United States
mail, postage prepaid, to the Employer's Human Resources Manager.
ARTICLE VII
SOURCE OF BENEFITS
7.1 Funding. The Plan is, and will remain, unfunded and the rights, if any, of any
person to any benefits under the Plan are limited to those specified in the Plan. The Plan
constitutes a mere unsecured promise by the Employer to make benefits payments in the future.
Benefits due under this Plan shall be paid by the Employer from its general assets, which are
subject to the claims of the Employer's general creditors. The Employer shall also pay all costs,
charges and expenses relating to this Plan from the same asset sources.
7.2 NoJJse of OCERS Assets. Employer assets used to provide benefits under this
Plan shall not be commingled with the monies of OCERS or any other qualified plans, nor shall
this Plan ever receive or use any assets of OCERS.
ARTICLE VIII
ADMJNISTRA TJON
8.1 Applicable Law. This Plan shall be governed by the laws of the State of
California and applicable federal law
61147.01801\12736294.2 7
8.2 No_Bight to Employment. Nothing in this Plan or in any resolution or regulation
concerning this Plan shall be construed as giving to a Participant any right to be retained in the
service of the Employer.
8.3 Unclaimed Benefits. In any situation where benefits are payable under this Plan,
a reasonable search, including mailing of a registered letter to the last known address, shall be
made to ascertain the whereabouts of the Participant or Eligible Survivor. If the person or
persons entitled thereafter come forward and request payment and establish such entitlement, the
amounts then due, including appropriate retroactive payments from the Commencement Date
(but without payment of any interest thereon), shall be paid accordingly.
8.4 Benefit Limits. Nothing in this Plan shall be construed as creating an entitlement
to any benefits greater than the difference between the amount of benefits that can be paid by
OCERS without regard to the limitations of Code Section 415(b) and what can be provided by
OCERS taking into account the limitations of Section 415(b ). Payment of a benefit under this
Plan does not create any eligibility for any additional benefits provided by this Plan, by OCERS
or under any other program maintained by the Employer.
ARTICLE IX
AMENDMENTS AND TERMINATION
9.1 Right to Amend. The Employer has the right to amend this Plan at any time
and in any manner for any reason whatsoever and may do so in its sole discretion to the
extent such amendment is consistent with the provisions of PEPRA (the Public Employees'
Pension Reform Act of 2012), including California Government Code Section 7522.43.
However, any amendment to this Plan that affects benefits paid shall be commensurate with
the purposes of this Plan to provide Participants and Eligible Survivors with retirement
benefits that are otherwise earned and payable to members of OCERS but which are limited
by Code Section 415(b ).
9.2 Preservation of OCERS Tax Status. Notwithstanding the preceding, this Plan
shall not in any way jeopardize the tax qualified status of OCERS. To maintain this qualified
status, the Employer shall take all necessary or appropriate action, including but not limited to
amending this Plan and the rules governing this Plan, solely for the purpose of complying with
applicable federal tax laws and regulations.
9.3 Preservation of Code Section 4!5(m) Status. The Employer shall have the
authority to make appropriate amendments to the Plan in order to accommodate changes in the
Code and United States Treasury Regulations in a manner that will preserve the status of the Plan
under Code Section 41 5(m).
[SIGNATURES FOLLOW ON NEXT PAGE]
61147.01801\12736294.2 8
IN WITNESS WHEREOF, the Employer has caused this San Juan Capistrano
Replacement Benefits Plan to be executed on August 4, 2015
EMPLOYER:
CITY OF SAN .JUAN CAPISTRANO
By:
ATTEST:
By:
APPROVED AS TO FORM AND CONTENT:
BEST BEST & KRIEGER LLP
By:
Attorneys for Employer
6! !47.0!801\12736294.2 9
Exhibit B
MEMORANDUM OF UNDERSTANDING
BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND THE ORANGE
COUNTY EMPLOYEES' RETIREMENT SYSTEM REGARDING THE CITY
OF SAN JUAN CAPISTRANO REPLACEMENT BENEFITS PLAN
This MEMORANDUM OF UNDERSTANDING ("MOU") is entered into by and between
the Orange County Employees' Retirement OCERS ("OCERS") and the City of San Juan
Capistrano ("City") to be effective beginning on August 4, 2015.
WHEREAS, OCERS provides retirement benefits to retired employees of the City; and
WHEREAS, the amount of retirement benefits that can be provided to OCERS members is
limited by Section 415(b) of the Internal Revenue Code ("Section 415(b )"); and
WHEREAS, the Internal Revenue Code allows the City to establish a replacement benefits
plan to pay the full benefits earned by OCERS members whose benefits are limited by Section
415(b ), and the Government Code requires the City to provide a program to replace benefits that
that cannot be paid by the OCERS because of the limits of Section 415(b ); and
WHEREAS, such a replacement benetits plan is used by many other entities, in both the
private and public sector, to replace benefits limited by Section 415(b ); and
WHEREAS, it is to the benefit of the City to ensure that all of its employees receive the
entire benefits which they would earn under OCERS but for the limits of Section 415(b ); and
WHEREAS, it is to the benefit of OCERS to ensure that OCERS is operated in compliance
with the terms of the County Employees' Retirement Law of 1937 and Section 415(b); and
WHEREAS, the most et1icient way for the City to operate a replacement benefits plan is to
enter into a memorandum of understanding with OCERS setting out the responsibilities of the
City and OCERS with respect to such a plan; and
WHEREAS, the City has provided to OCERS the City of San Juan Capistrano Replacement
Benefits Plan, a copy of which is attached hereto.
THEREFORE, IT IS HEREBY AGREED by and between the City of San Juan Capistrano
and the Orange County Employees' Retirement System as follows:
I. Purpose of Agreement. This MOU is entered into by the City and OCERS in
order to facilitate the efficient operation by the City of the City of San Juan Capistrano
Replacement Benefits Plan ("Plan") which will provide benefits to City employees who are
retired OCERS members and their eligible beneficiaries whose retirement benefits are limited by
Section 415(b ).
6114 7,01801\12773582.2
2. Payment of Replacement Benefits.
(a) In accordance with the Plan, the City shall pay to affected retired members
of OCERS who were employees of the City ("Retirees"), and to their eligible surviving
beneficiaries (if any), the difference between the benefits that would be payable by OCERS
without regard to the limits of Section 415(b) and the benefits that may be paid by OCERS
without violating Section 415(b). These benefits are called "Replacement Benefits".
(b) The City shall pay replacement benefits to Retirees from its general assets.
No assets of OCERS shall be used to pay replacement benefits and no assets of OCERS shall be
used to pay the cost of administration or any other costs regarding the operation of the Plan.
3. Determination of Amount of Replacement Benefits.
(a) In accordance with its responsibilities under Section 415(b ), OCERS shall
determine the amount of benefits for any affected Retiree and eligible surviving beneficiaries
that would be paid from OCERS without the limits of Section 415(b ), and shall determine the
amount of the benefits that can be paid to such persons in accordance with the limits of Section
415(b ). The difference between these two amounts is the amount of Replacement Benefits
payable by the City under the Plan.
(b) OCERS shall make this determination for the first year that the benefits of
any affected Retiree or eligible surviving beneficiary are limited by Section 415(b) and for each
relevant year thereafter. Annual determinations are necessary because both the amounts of the
limits and the amount of OCERS benefits may change annually.
(c) 'I'o the extent that the amount of benefits that are limited by Section
415(b) change during the year, and in accordance with its responsibilities under Section
415(b), OCERS shall recalculate the benefits payable by the City under the Plan.
(d) In accordance with the Plan, the City shall rely on the calculations by
OCERS set out in paragraphs (a), (b), and (c) of this section for purposes of determining the
Replacement Benefits payable under the Plan.
(e) As provided in Section 5 of this MOU, OCERS shall communicate to the
City the information determined under this Section 3.
4. Effect of Section 415(b) Limits on City Contributions to OCERS.
(a) In accordance with the recommendation of the OCERS actuary, City
contributions to OCERS shall be adjusted to take into account the fact that OCERS cannot pay
benefits that are greater than the limits provided by Section 415(b ).
(b) City contributions to OCERS shall be adjusted when, in fact, Replacement
Benefits are payable under the Plan. At that time, OCERS shall reduce City contributions in an
amount equal to the Replacement Benefits payable under the Plan in accordance with the
2
6114 7.01801\12773582.2
recommendations of the OCERS actuary.
5. Communications Between the City and OCERS.
(a) OCERS shall communicate to the City, in wntmg and as soon as
reasonably practicable, all information known to OCERS that is necessary or appropriate for the
efficient administration of the Plan. This information may include, but is not limited to, the
following: the names and identifying numbers of the Retirees and eligible surviving beneficiaries
whose benefits are limited by Section 415(b) in any year; the amounts of their replacement
benefits (if any) and the calculations that support these amounts; the date as of which the
replacement benefits will become payable during each year (if any); the amount by which the
replacement benefits change during the year (if at all); the amount of reduction in the City's
contribution to OCERS that will occur under section 4 hereof; and the date that any Replacement
Benefits must cease (for example, on the death of the retired member). The City shall keep
confidential all information received from OCERS for the purpose of administering the Plan, to
the extent permitted by law.
(b) The City shall communicate to OCERS, in writing and as soon as
reasonably practicable, all information that is necessary or appropriate for the efficient
administration of the Plan. (To the extent required by law, no info1mation shall be provided by
the City to OCERS without the prior written consent of the Retiree or eligible surviving
beneficiary.) This information may include, but is not limited to, the following: the names and
identifying numbers of the Plan participants and eligible surviving beneficiaries who are paid
replacement benefits; the amount of such payments; and the dates on which such payments
occurred during the year.
6. Communications with Members.
(a) In accordance with its responsibilities under Section 415(b ), OCERS shall
be responsible for testing member benefits with respect to the Section 415(b) limits. If the
benefits of a Retiree or eligible surviving beneficiary are limited by Section 415(b ), OCERS will
so inform the affected individual in writing, and will generally infom1 him or her that the Plan
will provide Replacement Benefits.
(b) Upon receiving the needed information from OCERS with respect to the
amounts and timing of payment of Replacement Bene tits for any Retiree or eligible surviving
beneficiary, the City shall inform each afTected individual about how the Plan works with respect
to him or her, including the amounts that will be paid under the Plan for the particular year, the
timing of such payments, any tax withholding elections available and all other information that is
necessary or appropriate for operation of the Plan as determined by the Plan Administrator in its
discretion.
7. Reconciliation of Amounts.
(a) Reconciliation of payments between OCE_B._~_mJd the City. The City and
OCERS shall take all reasonable steps to reconcile, after the end of each calendar year, the
3
6114 7.01801\12773582.2
amounts of Replacement Benefits that have been identified as payable under the Plan by OCERS
and the amounts of Replacement Benefits that have actually been paid under the Plan. In the
event that the Plan has paid benefits which OCERS determines should have been paid by
OCERS within the limits of Section 415(b ), OCERS shall reduce the contributions otherwise due
to OCERS from the City as soon as reasonably practical in an amount equal to such payments. In
the event that OCERS has paid benefits which OCERS detennines should have been paid under
the Plan, the City shall immediately reimburse OCERS for the payments of such benefits by
OCERS plus interest thereon calculated by using the OCERS then current actuarial valuation
interest rate assumption.
(b) Underpavments or overpayments to Retirees. Underpayments or
overpayments of benefits under this Plan to Retirees and eligible surviving beneficiaries shall be
cmTected by the City in accordance with the Plan or as required by law. l1 shall be the City's
responsibility to collect any such overpayments (plus interest) and to pay any such
underpayments. The City shall not seck any recourse against OCERS relating to such
overpayments or underpayments except to the extent that OCERS is required to reimburse the
City as provided in section 7(a) above.
8. ·rax Reporting. OCERS and the City shall be separately responsible for their
required reporting to the tax authorities, and neither shall be responsible for the other's reporting.
9. Costs of Administration and Payment of Benefits. The costs of administration of
the Plan shall be paid by the City. No costs or expenses (direct or indirect) of administering this
Plan (direct or indirect) shall be paid, directly or indirectly, by the OCERS. Further, no assets of
the OCERS shall be used, directly or indirectly, to pay for benefits or any other costs (direct or
indirect) of this Plan.
l 0. Indemnification and Hold Harmless. To the extent allowed by applicable law,
each party to this MOU shall indemnify and hold the other harmless for any costs, damages, or
other liabilities incurred hereunder on account of its own negligence or willful misconduct.
ll. Miscellaneous.
(a) ln~ration. This MOU and the documents referenced herein constitute
the entire agreement of the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings, both written and oral.
(b) Amendment to MOU. This MOU may only be amended pursuant to a
written agreement executed by both parties hereto.
(c) Notice of Amendment to Plan. The City will provide 30 days' written
notice to OCERS of any proposed revision to the Plan. Notice shall be addressed to the Chief
Executive Officer.
(d) Termination of MOU. This MOU shall be effective beginning on the
date set out on the first page hereof and shall continue in effect unless and until terminated by
4
6114 7.01801\12773582.2
either party on 30 days' written notice to the other. Notice shall be addressed to the Director
of Finance, for the City, and to the Chief Executive Officer, for OCERS.
(e) Review. The City and OCERS will meet within one year from the first
date that benefits are paid under the Plan to review the operation of this MOU and to make
such revisions hereto as are mutually agreeable.
(f) Authority to Execute Agreement. The City and OCERS each represent
and warrant that the person executing this Agreement on its behalf as indicated below has full
power and authority to do so.
IN WITNESS WHEREOF, this Memorandum of Understanding has been entered into
as of the date set forth on the first page hereof.
CITY OF SAN JUAN CAPISTRANO
By: ..
Derek Reeve, Mayor
ATTEST:
By:
~~~--~~--~~·-----Maria Morris, City Clerk
5
6114 7.01801\12773582.2
ORANGE COUNTY EMPLOYEES'
RETIREMENT SYSTEM
By: