HomeMy WebLinkAbout20240873.tiffRESOLUTION
RE: APPROVE SETTLEMENT AND RELEASE AGREEMENT, AND AUTHORIZE CHAIR
TO SIGN - COLORADO PUBLIC EMPLOYEES' RETIREMENT ASSOCIATION (PERA)
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, the Board has been presented with a Settlement and Release Agreement
between the County of Weld, State of Colorado, by and through the Board of County
Commissioners of Weld County, on behalf of the Department of Public Health and Environment,
and Colorado Public Employees' Retirement Association (PERA), commencing upon full
execution of signatures, with further terms and conditions being as stated in said agreement, and
WHEREAS, after review, the Board deems it advisable to approve said agreement, a copy
of which is attached hereto and incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of
Weld County, Colorado, that the Settlement and Release Agreement between the County of
Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on
behalf of the Department of Public Health and Environment, and Colorado Public Employees'
Retirement Association (PERA), be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to sign said agreement.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 15th day of April, A.D., 2024.
BOARD OF COUNTY COMMISSIONERS
ATTEST:
dstitA) ..e4A1
Weld County Clerk to the Board
207j-
Deputy Clerk to the Board
APP' :VED ORM:
County Attorney '
Date of signature: (41z`�I
WELD COUNTY
Freeman
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Perry ck, Pro-Tem
CC : F=.(cc/So1 PE(SS /MR), CA(88/KM),
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2024-0873
HL0057
SETTLEMENT AND RELEASE AGREEMENT
This Settlement and Release Agreement ("Agreement") is entered into as of the last date on
which this Agreement is executed by a party hereto (the "Effective Date") between the BOARD OF
COUNTY COMMISSIONERS OF WELD COUNTY on behalf of the WELD COUNTY
DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT ("the Department") and
COLORADO PUBLIC EMPLOYEES' RETIREMENT ASSOCIATION ("PERA"), referred to
herein collectively as "the Parties" and each a "Party."
RECITALS
WHEREAS, PERA conducted an employer attestation audit process in 2022 of employers in the
Local Government Division;
WHEREAS, as a result of this process, a discrepancy was identified regarding the Department's
treatment of Internal Revenue Code Section 125 Plan ("Section 125 Plan") contributions, wherein the
Department submitted employer and member contributions to PERA on all its employees' Section 125
Plan contributions (the "Error");
WHEREAS, pursuant to Colorado law at C.R.S. § 24-51-101(42), for all employees who were
not PERA members on June 30, 2019, the Department should not have submitted employer contributions
(including employer contributions, AED, SAED, and DC Supplement, as defined in C.R.S. 24-51-101 et
seq.) or member contributions to PERA on its employees' Section 125 Plan contributions ("Erroneous
Contributions");
WHEREAS, PERA has identified individuals that were formerly employed by the Department
and whose benefits are impacted by these Erroneous Contributions ("Retirees"); and
WHEREAS, by entering into this Agreement, the Parties wish to resolve all matters relating to
the Erroneous Contributions submitted to PERA on behalf of the Retirees.
Agreement
NOW, THEREFORE, in consideration of all mutual covenants contained herein, the Parties
hereby agree as follows:
1. PERA-includable Salary. The Parties agree that the Section 125 Plan contributions for
the Retirees will be treated as PERA-includable salary pursuant to Colorado PERA law (C.R.S. § 24-51-
101, et seq.) and PERA Rules (8 C.C.R. 1502-1).
2. Employer Contributions. The Parties agree that based upon the agreed -upon treatment
of the Section 125 Plan contributions cited in paragraph 1 above, and pursuant to PERA's statutory
authority in C.R.S. § 24-51-205(3.5) to settle disputes, PERA will not return Erroneous Contributions to
the Department on behalf of the Retirees. Instead, PERA shall retain all Erroneous Contributions
submitted on behalf of the Retirees.
3. Retirees' Benefits. As PERA received, and is retaining, both employer and member
contributions on the Retirees' Section 125 Plan contribution amounts, PERA agrees that it will not alter
the Retirees' monthly benefit as a result of the Department's error in submitting said contributions. This
means that Retirees will not owe PERA the retroactive overpayment of any benefits paid to date and that
their monthly benefits will not be reduced as a result of the Department's payment of the Erroneous
Contributions.
4. Deceased Retirees. To the extent any Retiree is now deceased, the Parties agree that
PERA will not return Erroneous Contributions to the Department on behalf of such individuals.
5. Mutual Release. Each Party mutually releases the other Party, including its trustees,
commissioners, officers, directors, shareholders, employees, agents, representatives, insurers, successors,
attorneys, and assigns from any and all claims, controversies, demands, obligations, debts, damages, and
liabilities of any kind or nature whatsoever regarding the identified erroneous contributions and Retirees,
whether known or unknown, which accrued or arose prior to the Effective Date of this Agreement.
6. Adequacy of Consideration. The Parties agree that the covenants and promises made
by them in this Agreement are sufficient, just and adequate consideration for their respective covenants
and promises.
7. Costs and Attorneys' Fees. Each Party shall bear its own costs, expenses, and attorneys'
fees.
8. No Representations. This Agreement controls over prior communications regarding the
matters contained herein between the Parties or their representatives. Except as expressly stated in this
Agreement, no Party hereto has made any statement or representation to the other Party regarding any fact
relied upon by the other Party in entering into this Agreement, and each Party specifically does not rely
upon any statement, representation, or promise of the other Party in executing this Agreement.
9. Consent. The Parties have carefully read this Agreement, and the contents hereof are
known and understood by the Parties. The Parties have each received independent legal advice from
attorneys of their choice with respect to the preparation, review, and advisability of executing this
Agreement. Prior to the execution of this Agreement by each Party, each Party's attorney has reviewed
the Agreement and each Party acknowledges that such Party has executed the Agreement voluntarily and
without fraud, duress, or undue influence.
10. Successors. Subject to the provisions otherwise contained in this Agreement, this
Agreement shall inure to benefit of and be binding upon the heirs, successors, and assigns of the
respective Parties to this Agreement.
11. No Assignments. Each Party represents and warrants that it has not heretofore assigned
or transferred, or purported to assign or transfer, to any person or entity, its rights in this action or any
interest therein, or any other interest in any claim or claims arising out of any of the matters that are the
subject of the Recitals herein.
12. Negotiated Agreement. This Agreement and each of its terms constitutes a negotiated
contract and not merely a recital and are the result of negotiation among the Parties. In interpreting this
Agreement, there shall not be a presumption of interpretation against any Party.
13. Compromise Agreement and No Admissions. This Agreement is the result of a
compromise between the Parties, and nothing in this Agreement shall constitute an admission of liability
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by any Party with regard to the subject matter of this Agreement or with respect to the composition or
certification of a class or collective action under the Colorado Rules of Civil Procedure, the Federal Rules
of Civil Procedure, or any other applicable law.
14. No Precedential Value. This Agreement carries no precedential value and should not be
relied upon by any party or person as evidence of any obligation of any Party.
15. Enforceability. Should any provision of this Agreement be held invalid, unenforceable
or illegal, such holding will not affect the whole of this Agreement, but, rather, the Agreement shall be
construed as if it did not contain the invalid, unenforceable or illegal part, and the rights and obligations
of the Parties shall be construed and enforced accordingly.
16. Warranty of Authority. Each of the signatories hereto warrants and represents they are
competent and authorized to enter into this Agreement on behalf of the Party for whom they purport to
sign it.
17. Evidentiary Privilege. This Agreement shall be deemed to fall within the protection
afforded compromises and offers to compromise by Rule 408, Federal Rules of Evidence and by Rule
408, Colorado Rules of Evidence.
18. Applicable Law. This Agreement shall be governed by, interpreted under, and construed
and enforced in accordance with the domestic laws of the State of Colorado without regard to conflicts of
laws principles.
19. No Third -Party Beneficiaries. This Agreement is for the sole benefit of the Parties
hereto and their respective successors and assigns and nothing herein, express or implied, is intended to or
shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
20. Further Actions. The Parties agree to do such further ads and things and to execute and
deliver such additional agreements and instruments as the other may reasonably require to consummate,
evidence, or confirm the agreements contained herein in the manner contemplated hereby. The Parties
mutually agree to cooperate to ensure the expeditious approval and administration of this Agreement.
21. Modifications. This Agreement may not be modified in whole or in part except by an
agreement in writing signed by both Parties and executed in the same manner as this Agreement.
22. Execution. This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which taken together shall constitute one and the same instrument.
23. Entire Agreement. This Agreement and all attachments hereto embody the entire
agreement and understanding of the Parties hereto with respect to the subject matter contained herein and
is a fully integrated contract.
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IN WITNESS WHEREOF, the Parties hereby execute this Agreement.
THE BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY on behalf of the
WELD COUNTY DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT
By:
r Dated: APR 1 5 2024
Name: Kevin D. Ross
Title: Chair, Board of Weld County Commissioners
ATTEST: ddrAtA.) Jelid);ti
By:
APPROVED AS TO FORM:
By:
Bruce Barker, Esq.
Weld County Attorney
Dated:
APR 1 5 2024
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COLORADO PUBLIC EMPLOYEES' RETIREMENT ASSOCIATION
,7
By:
Kevin Gallaway, Esq.
General Counsel
APPROVED AS TO FORM:
Dated: April 16, 2024
By: Dated: April 16, 2024
Megan M. Peitzmeier, Esq.
Attorney for PERA
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SETTLEMENT AND RELEASE AGREEMENT PURSUANT TO INTERNAL REVENUE
SERVICE (IRS) CODE SECTION 125 PLAN CONTRIBUTIONS - COLORADO PUBLIC
EMPLOYEES' RETIREMENT ASSOCIATION (PERA)
APPROVED AS TO SUBSTANCE:
(/10-441 QiL
ment Head or Elected
Dep Official
APPROVED AS TO FUNDING:
&to -
Chief Financial Officer, or Controller
APPROVED AS TO FORM:
County Attorney
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