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HomeMy WebLinkAboutResolution 432 Pension RESOLUTION NO. 432 A RESOLUTION OF THE CITY OF WINTER SPRINGS, FLORIDA, UPDATING AND AMENDING THE PENSION AND TRUST OF THE CITY OF WINTER SPRINGS, FLORIDA; PROVIDING FOR CONFLICT, SEVERABILITY AND EFFECTIVE DATE. WHEREAS, the City Commission of the City of Winter Springs, Florida, adopted a Pension Plan, and WHEREAS, the enabling Ordinance Number 273 of the City of Winter Springs, Florida provides that the Plan may be amended from time to time by resolution of the City Commission, and WHEREAS, the City Commission deems it appropriate and necessary to amend and update the Pension Plan and Trust of the City of Winter Springs, Florida. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS, FLORIDA, SECTION I - That the City Commission of the City of Winter Springs, Florida, hereby accepts and adopts the amended and Restated Pension Plan and Trust for employees of the City of Winter Springs, Florida, attached hereto and incorporated herein. SECTION II - This resolution shall remain in force until supple- mented, amended, repealed or otherwise altered. SECTION III - That all resolutions or parts of resolutions in conflict with this resolution are hereby repealed. SECTION IV - That this resolution shall take immediate effect upon its passage and approval. PASSED and ADOPTED this 25th day of October, 1983. CITY OF WINTER SPRINGS, FLORIDA JOHN V. TORCASO, MAYOR ATTEST: Mary T. Norton City Clerk INDEX PENSION PLAN AND TRUST FOR EMPLOYEES OF CITY OF WINTER SPRINGS Pass NOS ARTICLE I - EMPLOYEES ELIGIBLE TO PARTICIPATE 1. Qualification as Participant 2 2. Year of Service and Break in Service 2 3. Reparticipation 3 4. Permitted Absence 3 5. Military Absence 4 6. Continuation of Employment 4 7. Recognition as Participant 4 8. Hour of Service 4 9. Participant Agrees to Plan 5 ARTICLE II - CONTRIBUTIONS 1. Contribution Formula 5 2. Payment of Contributions 5 3. Annual Additions 6 4. More than One Plan 6 5. Exclusive Benefit of Participants 7 6. Limitation Year 7 7. "Annual Compensation" Defined 7 ARTICLE III - ALLOCATION OF CONTRIBUTIONS 1. Allocation Upon Termination of Employment 7 2. Certification of Allocations 7 ARTICLE IV - ACCOUNTING 1. Accounting Date 8 2. Reductions 8 3. Forfeitures 9 4. Valuation and Allocation 9 5. Segregated Accounts for Former Participants 9 ARTICLE V - BENEFITS 1. Full Distribution of Benefits 10 A. Retirement 10 B. Disability Retirement 10 C. Death 11 D. Termination of Plan and Trust 12 2. Distribution of Vested Portion of Account 12 A. Vested Interest in Account 12 B. Unvested Equity Forfeited 14 3. Form of Distribution of Account 14 4. Termination of Participation 14 Page_No. ARTICLE VI - RIGHTS AND DUTIES OF TRUSTEE_ AND PROFESSIONAL ADMINISTRATOR 1. Acceptance of Trust 15 2. Assets Held as Single Fund 15 3. Investments 15 4. Distributions Other Than by Death 17 5. Records and Reports 17 6. Compensation and Expenses 18 7. Communication to be in Writing 18 8. Fiduciary Responsibility 18 9. Removal and Resignation of Trustee and Professional Administrator 18 ARTICLE VII - LIFE INSURANCE 1. Purchase of Insurance Contracts and Limitations 19 A. Ownership 19 B. Amount Available for Premiums 20 C. Payment of Premiums 20 D. No Life Insurance Protection Beyond Retirement 20 2. Provisions Relating to Insurance Company 21 A. Not a Party to This Agreement 21 B. May Deal with Trustee 21 ARTICLE VIII - AMENDMENT AND TERMINATION 1. Reserved Right to Amend or Terminate 22 2. Assumption by Successor 22 3. Permanent Discontinuance of Contributions 22 ARTICLE IX - MISCELLANEOUS 1. Agreement Does Not Restrict City's Employment and Business Policies 23 2. Interests in Fund not Subject to Creditors' Claims 23 3. Predecessor Employer 23 4. Intention to Continue Plan 23 5. Continuation of Plan by Successor 24 6. Controlled or Affiliated Service Group 24 7. Rights against City 24 8. Minors and Incompetents 25 9. Applicable Law 25 10. Mistake of Fact 25 11. Restrictions on Return of Contributions 25 12. Claims 26 13. Transfer of Interest 26 14. Agent for Service of Process 27 - 2 - ' I I PENSION PLAN AND TRUST FOR EMPLOYEES OF CITY OF WINTER SPRINGS AGREEMENT AND DECLARATION OF TRUST THIS AGREEMENT is effective as of October 1, 1982, by and between the City of Winter Springs, a municipality incor- porated under the laws of the State of Florida, hereinafter called the "City ", the Board of Trustees of the City, as duly appointed by the City Commission, hereinafter called the "Trustee ", and ECS, Inc., a Florida corporation engaged in the business of administering retirement plans, hereinafter called the "Professional Administrator ". WHEREAS, Article VIII, Section 2(b) of the Florida Constitution and Florida Statute 166.021 provide, in part, that municipalities shall have all powers necessary to conduct munici- pal government and to take all action related thereto unless expressly prohibited by law; and WHEREAS, Chapter 112 (Part VII), Florida Statutes establishes standards to be followed by municipalities in the operation of retirement plans for their employees; and WHEREAS, on February 22, 1983 the City adopted for its general government employees a New England Life Money Purchase Pension Trust Plan, effective October 1, 1982, which provides benefits upon retirement, disability, death or severance of employment; and WHEREAS, the City now desires to replace said Pension Plan and Trust by the adoption of this Pension Plan and Trust; and WHEREAS, this Plan is intended to qualify under Section 401(a) of the Internal Revenue Code of 1954, as amended. NOW, THEREFORE, in order to establish the said Plan and Trust, the parties hereto agree as follows: ARTICLE I EMPLOYEES ELIGIBLE TO PARTICIPATE 1. Qualification_as Participant. (a) Except as provided in subparagraph (b) below, all employees who on September 30, 1983 had completed at least one (1) year of service with the City shall participate in the Plan as of the effective date. Each employee who was not ini- tially eligible shall become a Participant as of the earlier of: (i) the first day of the Plan year (October 1) be- ginning after the date the employee completes one (1) year of service with the City, or (ii) the first day of the sixth (6th) month following the date the employee completes one (1) year of service with the City. (b) All employees covered by a collective bargain- ing agreement between employee representatives and the City, pur- suant to which retirement benefits have been the subject of good faith bargaining, shall be excluded from coverage under this Plan. 2. Year of Service and Break in Service. A "year of service" shall mean a period of twelve (12) consecutive months during which an employee completes 1,000 hours of service. A "break in service" shall occur when an employee completes 500 hours of service or less during a twelve (12) month period except as otherwise provided in Sections 4 and 5 of this Article. In determining years of service and breaks in service for purposes of eligibility, the initial twelve (12) month period shall com- mence on the date the employee first performs an hour of service for the City, and the second twelve (12) month period shall be the Plan year which commences prior to the end of the initial twelve (12) month period. An employee who completes 1,000 hours - 2 - i r � of service in both the initial twelve (12) month period and the second twelve (12) month period, as defined above, shall be cred- ited with two (2) years of service for purposes of eligibility to participate. 3. Re artici ation. A former Participant shall com- mence participation in this Plan immediately upon his return to the City's employ if such former Participant had a nonforfeitable right to all or a portion of his account balance at the time of his termination. A former Participant who did not have a nonforfeitable right to any portion of his account balance at the time of his termination shall be considered a new employee for eligibility purposes if the number of consecutive one (1) year breaks in ser- vice equals or exceeds the aggregate number of years of service before such break. If the former Participant's years of service before his termination exceed the number of consecutive one (1) year breaks in service after such termination, he shall commence participation in this Plan immediately upon his return to the City's employ. A former employee who has completed the eligibility requirements for participation but who terminates before his entry date and who is then reemployed prior to incurring a break in service shall participate as of the later of his date of reemployment or the entry date on which he would have commenced participation had he not terminated. 4. Permitted Absence. A leave of absence for no longer than two (2) years, authorized by the City for personal hardship or other unusual circumstance, shall not be considered a break in service, provided the employee returns to active employment with the City within ten (10) days of the expiration of such leave of absence. Leaves of absence hereunder shall be granted in a non- discriminatory manner applied to all employees in similar cir- cumstances. - 3 - 5. Military Absence. Absence by reason of service in the armed forces of the United States (not including periods of reenlistment) shall not be considered a break in service, pro- vided the employee reports to the City for work within ninety (90) days from the date of his separation from the armed forces. 6. Continuation of Employment. During a period of absence under either Section 4 or 5 above, the employee shall retain full eligibility under the Plan; provided, however, that if any such employee does not return within the required time after the expiration of the period of absence, said employee shall be considered as having commenced a break in service, as defined in Section 2 of this Article I, at the beginning of the period of absence. 7. Recognition as Participant. Every employee entitled to participate in this Plan shall be known as a "Participant ", and when an employee first becomes a Participant the Trustee shall give him written notice of that fact, and shall deliver to him a summary of the Plan as then in force. 8. Hour of Service. For purposes of eligibility and vesting, an "hour of service" shall include the following: (a) Each hour for which an employee is paid, or entitled to payment, for the performance of duties for the City, which hours shall be credited to the employee for the computation period in which the services are performed; and (b) Each hour for which an employee is paid, or entitled to payment, by the City on account of a period of time during which no duties are performed (irrespective of whether the employment relationship has terminated) due to vacation, holiday, illness, incapacity (including disability), layoff, jury duty, military duty or leave of absence; pro- vided, however, that no more than 501 hours of service shall be credited under this subparagraph (b) for any single con- tinuous period (whether or not such period occurs in a single computation period). Hours under this subparagraph shall be - 4 - calculated and credited pursuant to Section 2530.200b -2(b) and (c) of the Department of Labor Regulations, which are incorporated herein by reference; and (c) Each hour for which back pay, irrespective of mitigation of damages, is either awarded or agreed to by the City; provided, however, that the same hours of service shall not be credited both under subparagraph (a) or (b) above and under this subparagraph (c). These hours shall be credited to the employee for the computation period or periods to which the award or agreement pertains rather than the computation period in which the award, agreement or payment is made. 9. Partici ant Agrees to Plan. Each Participant and beneficiary shall be conclusively deemed for all purposes to have assented to this Plan and Trust Agreement and to all the terms and provisions hereof and shall be bound thereby with the same force and effect as though a party hereto. If requested to do so, an eligible employee shall execute such forms as may be fur- nished by the Trustee. ARTICLE II CONTRIBUTIONS 1. Contribution Formula. For the Plan year ending September 30, 1983, and for each Plan year thereafter, the City shall contribute for each active Participant an amount equal to the lesser of (a) four percent (4 %) of his annual compensation, or (b) the maximum annual addition permitted under Section 3 of this Article II. 2. payment of_Contributions. The contributions of the City for each Plan year may be made in quarterly installments; however, the Plan shall be considered to be fully funded for the Plan year if all required contributions are accrued by the end of that year and paid to the Trustee within ninety (90) days thereafter. The amount of the City's required annual contributions under Section 1 above shall be charged to a Funding Standard - 5 - Account, and all contributions actually made shall be credited to that account. 3. Annual Additions. Notwithstanding anything to the contrary contained in Section 1 of this Article II, the.amount added annually to the account of a Participant shall not exceed the sum of $30,000.00 (increased by permitted cost of living adjustments set forth in regulations issued by the Secretary of the Treasury or his delegate pursuant to Section 415(d) of the Internal Revenue Code, as amended). The "annual additions" referred to herein shall include the City's contributions and forfeitures. the amount to be added to a Participant's acc SEE AMC•vhA,4e during a Plan year wou -xceed the ve-1 mitation on annual , 04 Ts 4 additions, the amou.n -t— such excess s 11—be returned to the &ay /S.y T- r- u and applied against future contributions to the 4. More than One Plan. If, in addition to this Plan, the City maintains a profit sharing plan currently in effect, the above limitation on annual additions shall apply to the aggregate contributions made to both plans. f, in addition to this Plan (which is a defined contri S �E bution plan), an employee is a Participant in a defined ben: it AMnNn Mf,vr 110 ` 1 ,04reb pension plan main ained by the City, the sum of his de ned "1/40Y contribution plan fraction and his defined benefi plan fraction shall not exceed 1.25 for any Plan year. Fo •urposes of this Section 4, the term defined c• tributio 'Ian fraction for any Plan year shall mean a fraction t.- umerator of which is the aggregate amount of the annual - dditi• s made to a Participant's account as of the close o the current ye and the denominator of which is the aggre•ate amount of the maxim allowable addi- tions to the Pa icipant's account for the Curren' ear and for each prior ear of service with the City. The term de ined bene- fitp n fraction for any Plan year shall mean a fraction , e p.umerator of which is the projected retirement benefit payable to - 6 - • a Participant as of the close of the current year and the denomi- nator of which is the projected retirement benefit payable to a Participant determined as of the close of the current year if the plan provided for the maximum allowable benefit. 5. Exclusive Benefit of Participants. Except under the circumstances set forth in Article IX, Section 10, at no time shall any part of the funds hereunder revert to the City or be used or diverted to any purpose other than for the exclusive benefit of the Participants or their beneficiaries or estates. 6. Limitation Year. For the purpose of the limitation on contributions previously set forth in this Article II, the "limitation year" of this Plan and Trust (as defined in Section 2.01 of Revenue Ruling 75 -481) shall mean the Plan year, which is the twelve (12) month period ending on September 30. 7. "Annual_Com ensation" Define The annual compe -SEE - - -- -- � H� Na "7 E n�T ion of a Participant is the base compensation f a period , � pAre4 of his part ation during any Plan ea , excluding bonuses, o/ � k V Y overtime pay, specialty npayments made to or on behalf of such Partici_a for travel and per — diem expenses and for health, hos .italization, sick leave or retirement bene ARTICLE III ALLOCATION OF CONTRIBUTIONS 1. Allocation Upon_Termination _ of_Em loyment If the employment of a Participant shall terminate by reason of death, disability or retirement, his account shall share in the alloca- tion of contributions for the Plan year in which such termination occurs. If a Participant's employment terminates for any other reason, his account shall receive an allocation of contributions only if he is employed by the City on the last day of that Plan year. 2. Certification of Allocations. The Professional Administrator shall be responsible for determining the proper allocation of the annual contributions among the Participants and - 7 - shall certify to the Trustee in writing the amount allocated to each Participant. The amount allocated to each Participant shall be credited to the account in the name of such Participant on the books of the Trustee. Such allocation and credit shall not pass any right, title or interest in the Trust to the Participant except at the time or times and upon the terms and conditions hereinafter provided in Article IV. ARTICLE IV ACCOUNTING 1. Accounting Date. The annual accounting date of the Trust shall be the last day of the Plan year (September 30). As of such accounting date each year, all accounts shall be adjusted by the Trustee on the basis and in the order hereinafter set forth. 2. Reductions. The Trust accounts shall be reduced by all amounts which are paid out or set aside (as provided under Section 5 of this Article IV) on account of the retirement, death, disability, resignation or discharge of a Participant since the preceding accounting date. As indicated in Article III, Section 1, employees who have retired, become disabled or died since the first day of the Plan year are considered Participants until the beginning of the next such year and, accordingly, are still Participants on the accounting date next following their retirement, disability or death, and their accounts will share in the allocation of contri- butions, earnings and forfeitures provided for in the following sections of this Article IV. The accounts of employees who have resigned or been discharged since the first day of the Plan year but prior to the last day of such year shall not participate in the allocation of contributions for that year. The employees referred to in the previous sentence will share in the gains and losses for the Plan year in which their employment terminates and - 8 - their accounts will be valued for all purposes as of the last day of the Plan year in which a break in service occurs. 3. Forfeitures: After the reduction provided for in Section 2 above, all amounts forfeited by an employee shall be applied to reduce future costs of the Plan and will not under any circumstances be used to increase benefits for the remaining Participants. 4. Valuation and Allocation. The Trustee shall main- tain an account for each Participant, to which shall be credited the amount of each contribution received on behalf of such Participant, along with the investment gains from any segregated investment assets and the pro rata gains to such Participant's account from its participation in any pooled investment, and to which shall be debited any investment losses, expenses of admin- istration and distributions to the Participant. The proration of gains and losses shall be based on the balance of each Participant's account as of the end of the preceding Plan year. Assets shall be valued at their fair market value at the end of each Plan year and upon the segregation of any portion of a pooled investment, and the appropriate debits and credits to the accounts of each Participant shall then be made. As long as this Trust has any investments in a common trust fund available only to pension trusts and profit sharing trusts which meet the requirements of Section 401(a) of the Internal Revenue Code of 1954, as amended, such common trust funds shall constitute an integral part of this Plan and Trust. 5. Segregated Accounts for Former Participants. The amounts to which former Participants are entitled (but which have not been paid out due to the election of the installment form of distribution, or for any other reason) may, at the discretion of the Trustee, be severed from the Trust and set aside and held by the Trustee in segregated accounts, in which event a former Participant shall no longer participate in the profits and losses of the Trust nor in the increases or decreases in the value of - 9 - the assets thereof, but shall only be credited or charged with the profits and losses, and with increases and decreases, of that portion of the Trust so set aside in his segregated account. All segregated accounts shall be actively and prudently invested in the same manner as the accounts of current Participants hereunder, and the Trustee may charge such accounts with a prorated portion of the fees and expenses incurred in the administration of the Plan. This provision shall be applied in a nondiscriminatory manner to all Participants similarly situated. ARTICLE V BENEFITS 1. Full Distribution of Benefits. The benefits cred- ited to the accounts of each Participant shall be fully vested and the net value thereof shall be distributed to him by the Trustee upon the happening of any of the events described in Paragraphs A through D as follows: A. Retirement. If the Participant retires upon or after attaining retirement age, as hereinafter defined, the full amount credited to his account shall be distributed to him in accordance with Section 3 of this Article. A Participant shall be deemed to have attained retirement age upon the last day of the month preceding the date on which he reaches his sixty - fifth (65th) birthday; provided, however, that if the Participant remains employed by the City after reaching said retirement age, he shall continue to be a Participant hereunder until the last day of the Plan year during which he actually retires. B. Disability Retirement. If a Participant retires after becoming permanently and totally disabled, distri- bution shall be made to him as though he had retired upon attain- ing retirement age on the last day of the month during which a certificate of disability is issued. A Participant shall be con- sidered permanently and totally disabled on such date as a medi- cal examiner selected by the City certifies that he is mentally - 10 - or physically unable to further perform his former duties and that such disability is likely to be permanent. This provision shall be applied in a nondiscriminatory manner to all Partici- pants similarly situated. Notwithstanding anything to the contrary contained herein, in the event a Participant becomes disabled after ter- minating employment with the City but prior to incurring a break in service, as defined in Article I, Section 2, the payment to be made to such disabled Participant shall be limited to his vested interest based on the number of years of service prior to the Plan year in which he became disabled and taking into account his hours of service during the Plan year in which disability occurred. C. Death. In the event of the death of a Participant (or former Participant whose account balance has not been distributed under Section 5 of Article IV), the amount credited to his account shall be paid, as soon as practicable after the date of death, in the manner set forth in Section 3 of this Article, to the beneficiary or beneficiaries designated by the Participant, or if none have been so designated, to his sur- viving spouse, or if none, to his then living issue, per stirpes, or if none, to the personal representative of his estate. The designation of beneficiaries shall be made in writing on forms furnished by the Trustee at the time the employee becomes eli- gible to participate in this Plan. Said designations may be revoked or changed in the same manner. Notwithstanding anything to the contrary contained herein, in the event a Participant dies after terminating employment with the City but prior to incurring a break in ser- vice, as defined in Article I, Section 2, the payment to be made to such deceased Participant's beneficiary shall be limited to the deceased Participant's vested interest based on the number of years of service prior to the Plan year in which death - 11 - r i occurred and taking into account his hours of service during the Plan year in which he died. D. Termination of Plan and Trust. In the event of the termination or partial termination of this Plan, the City may elect to continue this Trust in full effect, in which case benefits shall be paid to Participants in accordance with the provisions of this Article V. Notwithstanding the above, if the City continues this Trust in effect a Participant may receive full and immediate distribution of his benefits from the Plan by filing an irrevocable written election with the Trustee within one (1) year after the effective date of termination of the Plan. The City may elect instead to terminate the Trust, in which event the Trustee shall pay over to each Participant within six (6) months thereafter the entire balance credited to his account. The termination or partial termination of the Plan or Trust, or the complete discontinuance of contributions, shall result in the full vesting of benefits hereunder. 2. Distribution of Vested Portion of Account. If a Participant suffers a break in service for any reason other than as referred to in Section 1 above (for example, by resigna- tion or discharge by the City), his benefits under this Plan shall be limited to the vested equity in his account. A. Vested Interest in Account. A Participant's vested interest in his account shall be distributed to him pur- suant to Section 3 of this Article upon reaching retirement age, unless the Trustee shall, in its discretion but pursuant to its policy of treating all employees similarly situated in an equal manner, consent to earlier payment. Such vested interest shall be determined in accordance with the following schedule, which complies with the minimum vesting requirements of Section 411(a)(2) of the Internal Revenue Code: Vested Interest Years of Service in Fund One year -0- Two years -0- Three years -0- - 12 - Four years 40% Five years 50% Six years 60% Seven years 70% Eight years 80% Nine years 90% Ten years 100% In determining an employee's vested interest, a year of service shall mean a Plan year in which the employee completes 1,000 hours of service (as defined in Article I, Section 8), and a break in service shall occur at the end of a Plan year in which the employee completes 500 hours of service or less. For pur- poses of vesting, all years of service shall be included. Notwithstanding the above, a former Participant who is rehired by the City and who had a nonforfeitable right to all or a portion of his account at the time of his termination shall receive credit for all years of service (as calculated in the preceding paragraph) prior to his break in service. A former Participant who did not have a nonforfeitable right to any por- tion of his account at the time of his termination shall receive credit for years of service prior to his break in service only if the number of consecutive one (1,) year breaks in service is less than the aggregate number of his years of service before such break. The vested interest of a Participant who terminates his employment without incurring a break in service shall remain unchanged and upon his reemployment said Participant's vested interest shall be identical to such interest as it existed on his date of termination. No amendment to the above vesting schedule shall deprive a Participant of his nonforfeitable right to benefits accrued prior to the effective date of the amendment. In addition, if the vesting schedule is amended, then each Participant with at least five (5) years of service with the City at that time shall have his nonforfeitable percentage computed under the vesting schedule which is more favorable to him. - 13 - • B. Unvested Equity_ Forfeited. That portion of a terminated Participant's account which is not vested shall be forfeited, as of the end of the Plan year in which his break in service occurs, and shall be returned to the Trustee to be applied to reduce future costs of the Plan. 3. Form of Distribution of Account. That portion f- $6E Amsv h- i— account to which a Participant is entitle 1 be disbursed #-/, 0 reo to him (or his berief is-i.a y) y_.the " rustee in cash in one lump 4. 1 4 .01/ sum payment or_in = periodic payments cottsi of monthly, guar- ter semiannual or annual installments over a specifie d.. The time, manner and form of the distribution shall be determined solely by the Trustee, which may take into account the Partici- pant's (or beneficiary's) wishes and his personal circumstances, but without being bound by those considerations. However, no distribution shall be made in the form of a life annuity and, further, no payments shall be made to a Participant until he incurs a break in service, as previously defined, unless his account is fully vested. Notwithstanding anything to the contrary contained herein, the payment of retirement benefits under this Plan must begin within sixty (60) days after the end of the Plan year following the later of: (a) the Participant's attainment of retirement age, or (b) the Participant's termination of employment. S E' 4 fND 44'NT - 1 D19 T .21Asiy .P4.! 4. Termination of Participation. Subject to the re -entry requirement contained in Article I, Section 3, the ter- mination of active service as an employee of the City shall constitute termination of participation hereunder, except that if the active service of a Participant is suspended on account of a permitted leave of absence or absence for military service, as authorized under Article I, Sections 4 and 5, his participation shall not be deemed to have terminated. In the event of a per- mitted leave of absence or absence for military service, the - 14 - Participant shall not share in contributions made by the City during his absence, but he shall continue to share in gains and losses, on a pro rata basis, as provided in Article IV, Section 4. ARTICLE VI RIGHTS AND DUTIES OF TRUSTEE AND PROFESSIONAL ADMINISTRATOR 1. Acceptance of Trust. The Trustee hereby accepts the Trust created hereunder and agrees to perform its duties under this Plan and Trust Agreement. 2. Assets_Held_as_Single_Fund. The Trustee shall take control of the Trust assets and shall hold, invest and reinvest them, together with the income thereof, in its absolute discre- tion. All contributions from time to time paid to the Trustee by or on behalf of the City, and the income therefrom, may after allocation be held and administered by the Trustee as a single fund, and the Trustee shall not be required to segregate or invest separately any share of a Participant in the Trust. 3. Investments. The Trustee shall be solely respon- sible for establishing the Plan's funding policy and method and, in amplification of the foregoing, may invest the funds hereunder in such bonds, common or preferred stock, mutual funds or other securities, mortgages, real or personal property of every kind and nature, stock options (including puts and calls), or other such investments or master trusts, as in its sole discretion it may deem advisable, subject always to the overriding requirement that no investment shall be made which is prohibited by the Inter- nal Revenue Code or the Employee Retirement Income Security Act of 1974. The Trustee, in its discretion, may negotiate, execute and deliver an option or agreement for purchase of any securities, including bonds, preferred and common stocks, mutual funds or any other property, real or personal, and may purchase insurance on the life of any person as a party to such agreement. Further, the Trustee may hold such investments in its own name or in the - 15 - name of a nominee or nominees with or without a disclosure of the Trust; it may retain in cash and keep unproductive of income such portion of the funds as may be deemed advisable; it may vote upon any stocks, bonds or other securities of any corporation or other issuer of securities held in trust, and generally may exercise any of the powers of an owner with respect to stocks, bonds or other securities or property comprising the Trust. The Trustee may invest funds in qualifying employer real property in an aggregate amount not to exceed ten percent (10 %) of the fair market value of the assets of the Trust. "Qualifying employer real property" shall mean parcels of real property leased by the Plan to the City, provided that: (a) a substantial number of the parcels are geographically dispersed; and (b) each parcel and its improvements are suitable or readily adaptable to more than one use. Notwithstanding any provision contained herein, all investments under this Plan shall be made by the Trustee in a prudent manner, and in making investments all Participants shall be treated equally on a nondiscriminatory basis. In addition, the Trustee shall maintain diversity in selecting such invest- ments unless under the circumstances it is clearly prudent not to do so. The Trustee shall have the power to appoint an "Investment Manager ", as defined below, to manage - -which shall include the power to acquire and dispose of - -all or any part of the Trust. If an Investment Manager is so appointed, written notice thereof shall be given to the Professional Administrator, along with written acknowledgment of such appointment executed by such Manager, which shall set forth the Investment Manager's acceptance of his or its status as a fiduciary of the Plan. The Trustee shall have no fiduciary liability for the acts or omissions of such Investment Manager or be under any obligation to invest, otherwise manage or inquire as to the disposition of - 16 - that portion of the Trust Fund which is subject to the control of the Investment Manager. An "Investment Manager" is any fiduciary, other than a Trustee of this Plan, who: (a) has the power to manage, acquire or dispose of any portion of the Trust Fund; (b) is registered as an investment adviser under the Investment Advisers Act of 1940; and (c) has acknowledged in writing that he or it is a fiduciary with respect to the Plan. 4. Distributions Other Than by Death. When the distribution of benefits (other than by death) to a Participant is called for by this Plan the vested portion of the current cash surrender value of all contracts on the Participant's life shall be determined and the amount thereof shall then be distributed in the manner provided in Article V or, if the Participant's vested interest in his account is equal to or greater than the aggregate cash surrender value of such contracts, then the contracts may be immediately transferred by the Trustee to the said Participant, in which event the cash surrender value shall be applied as a credit against the balance of the account due the Participant. Notwithstanding this provision, all distributions made hereunder shall be subject to the terms of Article VII, Section 1, Paragraph D. 5. Records and Reports. The Professional Administrator shall keep accurate and detailed records of the administration of the Plan and Trust, which records shall be open to inspection at all reasonable times to any person designated in writing by the City. Within ninety (90) days following the close of each Plan year, the Professional Administrator shall file with the Trustee a written statement and report setting forth all investments, receipts and disbursements and other transactions effected during such year, and containing an exact description of all securities - 17 - purchased and sold, and the cost or net proceeds of sale, and showing the securities and other Plan assets held at the end of the year, and the cost of each item. The Professional Administra- tor shall be solely responsible for maintaining all records of the Plan and Trust and preparing and filing all reports, tax returns and other materials required by the Department of the Treasury and the Department of Labor, and for supplying the Participants and beneficiaries with all information and forms regarding the operation of this Plan and Trust as may be required by law. 6. Compensation and Expenses. The City shall pay to the Professional Administrator during the life of this Plan such reasonable compensation for services rendered as may from time to time be agreed upon between the City and the Professional Administrator. No compensation shall be paid to the Trustee for services rendered hereunder. The City shall pay or reimburse the Professional Administrator and Trustee for all reasonable expenses incurred in the execution of their duties hereunder, including fees for legal, accounting and investment services. If requested by the City in writing, such compensation and expenses may be charged against and paid out of the Trust. 7. Communication to be in Writing. Any determination or action of the City pursuant to the provisions of this Plan and Trust shall be authorized by the City and communicated in writing to the Trustee or Professional Administrator, as the case may be. 8. Fiduciary Res onsibilit . The Professional Admin- istrator, as a named fiduciary of this Plan and Trust, is charged with full responsibility for the administration and operation of the Plan, which shall include compliance with Florida Statute 112 (Part VII) and other applicable Florida law. 9. Removal and Resi.nation of Trustee and Professional Administrator. The Trustee or Professional Administrator may be removed and successors may be appointed and later removed by the City by the delivery to such Trustee or Professional Administrator - 18 - • of a written directive by a representative of the City to that effect. The Trustee or Professional Administrator may resign by the delivery to the City of a written resignation. Such removal or resignation shall become effective ninety (90) days from the date of the delivery of the directive or resignation, as the case may be, unless an earlier or later date is agreed upon by the City and the Trustee or Professional Administrator. In the event of such removal or resignation, the successor Trustee or Profes- sional Administrator, upon acceptance of the appointment by an instrument in writing delivered to the City, shall become vested with all the rights and assume all the duties specified under this Plan and Trust Agreement. Upon such appointment and accep- tance, the replaced Trustee shall endorse, transfer and assign to the successor Trustee all of the funds, securities and other prop- erty then held by it in the Trust, and the replaced Professional Administrator shall deliver to the successor Professional Admin- istrator such records as may be reasonably required for the proper administration of the Trust hereunder. ARTICLE VII LIFE INSURANCE 1. Purchase of Insurance Contracts and Limitations. A. Ownership. The City shall instruct the Trustee to apply to a legal reserve life insurance company qualified to do business in the State of Florida for a life insurance contract or contracts on the life of a Participant when requested to do so by the Participant. The Trustee shall be the owner and beneficiary of the contracts and shall have all the rights set forth therein. In addition, the Trustee shall have possession of each contract until its disposition is required pursuant to this Plan. If a Participant dies, any death benefit payable under the contract on his life shall be payable as pro- vided by its terms. All insurance purchased hereunder shall constitute an investment allocable to the account of the Participant whose life - 19 - is insured thereby, and any proceeds received by the Trustee shall be added to such Participant's account. In addition, all such policies shall remain subject to the vesting and forfeiture provisions of this Plan. B. Amount Available for Premiums. The aggregate premiums paid during past years and to be g p y paid during the current year for ordinary life insurance (or insurance providing no greater pure insurance protection than ordinary life insurance) for each Participant shall be less than one -half (1/2) of the aggregate of the City's contributions allocated to the credit of the Participant during such years. The aggregate premiums paid during past years and to be paid during the current year for insurance other than ordinary life insurance (or insurance pro- viding greater pure insurance protection than ordinary life in- surance) for each Participant shall be less than one - fourth (1/4) of the aggregate of the City's contributions allocated to the credit of the Participant during such years. C. Payment of Premiums. The City shall instruct the Trustee to pay out of the Trust and charge to the Partici- pant's account the premiums, less dividends, required by the terms of the contracts issued pursuant to the Participant's request, but only so long as the person on whose life the contract is issued continues to be a Participant. D. No Life Insurance Protection Be and Retirement. Prior to or concurrently with the retirement of a Participant on whose life an insurance contract has been purchased hereunder, the Trustee shall do one of the following: (i) surrender the contract for cash, or (ii) if the Participant so elects in writing at least thirty (30) days prior to the effective date of his retirement, distribute such contract to him in kind, in which case the modes of settlement contained in the contract shall be limited to those provided herein. - 20 - ,• * • In no event shall the Trustee continue any such contract in force after a Participant's retirement in order to provide him with continued life insurance protection. SEF 11 1i 74 " 4 ' ' E.vt ' 4.41 , 4)47-6-1) 2. Provisions Relating to Insurance Com any. A. Not a Party to This Agreement. In the event that any amounts in the Trust are used to purchase insurance contracts under this Plan, it is specifically understood that the insurance company shall not be deemed to be a party to the Plan, and its obligations shall be determined solely by the terms of the contracts which it may issue for the purposes hereof and the terms of any auxiliary agreements which it may enter into with the City and the Trustee. An insurance company providing insurance hereunder shall incur no liability if the contracts, in accordance with their terms, do not produce the anticipated bene- fits due to the actions of a Participant or his statements made in procuring the contracts. B. May Deal with Trustee. On the application for any contracts issued hereunder, the insurance company may accept the signature of the Trustee, and such signature shall be conclu- sive proof that the person on whose life the application is made is an eligible employee entitled to the benefits to be provided under this Plan and any contracts issued pursuant thereto. The insurance company may deal with the Trustee as absolute and sole owner of any contracts issued on its application, and shall be under no obligation to inquire or determine whether any action or failure to act is in accordance with the terms of the Plan. The insurance company shall be fully discharged from any and all liability for any action taken or any amounts paid in accordance with the directions of the Trustee, and shall have no obligation to see to the distribution or application of any amounts so paid. In the event of a change in Trustee, the insurance company shall be fully discharged of all liability in dealing with the present Trustee as indicated on its records, until such time as it - 21 - receives at its home office satisfactory evidence of the appoint- ment of a successor Trustee. ARTICLE VIII AMENDMENT AND TERMINATION 1. Reserved Ri•ht to Amend or Terminate. To the extent consistent with the requirements of qualification for income tax purposes, the City reserves the right at any time to terminate and from time to time to amend this Plan and Trust, in whole or in part, either retroactively or prospectively, by de- livering to the Trustee and Professional Administrator a written amendment; provided, however, that the City shall have no power to amend this Plan and Trust in such a manner as would cause or permit any of the Trust to be diverted to purposes other than for the exclusive benefit of the Participants or their beneficiaries or estates, or to take such action as would cause or permit any portion of the assets of the Trust to revert to or become the property of the City, except as permitted under Article IX, Section 10, and provided further that no amendment shall cause or permit retroactive diminution of any rights which the Participants have acquired with respect to contributions made previous to the date of any such amendment. Any amendment to this Plan and Trust shall be approved and executed by the City, the Trustee and the Professional Administrator. An amendment which affects the rights of any Participants hereunder shall be communicated to those Participants. 2. Assumption by Successor. In the event of the ter- mination of further contributions to this Plan, the City's obli- gations hereunder may be assumed by any municipality or other corporation which employs a substantial number of the Partici- pants of the Plan. Such assumption shall be made pursuant to Article IX, Section 5 hereof, and shall be evidenced by an agree- ment between such municipality or other corporation and the Trustee. 3. Permanent Discontinuance of Contributions. Perma- nent discontinuance on the part of the City of further contributions - 22 - shall constitute termination of this Plan; provided, however, that the City shall have the option of continuing the operation of the Trust. Said termination and continuance shall be handled in accordance with Article V, Section 1, Paragraph D hereof. For the purpose of this paragraph, permanent discontinuance will not be deemed to have occurred merely because of a temporary suspen- sion of contributions, as long as the City incurs an obligation to make up missed contributions, plus accrued interest, in sub- sequent years. ARTICLE IX MISCELLANEOUS 1. Agreement Does Not Restrict City's Emlo pyment and Business_ Policies. Nothing in this Plan shall be construed as a contract of employment nor as modifying or limiting in any way the right of the City to terminate the employment of any Participant, to establish policy, or otherwise to conduct its business of municipal government. 2. Interests in Fund not Subject to Creditors' Claims. Except to the extent required by law, none of the benefits, payments, proceeds, claims or rights of any Participant hereunder shall be subject to the claims of creditors, or to attachment or garnishment or other legal process, nor shall any Participant have any right to allocate, anticipate, commute, pledge, encumber or assign any of the benefits, payments or proceeds which he may expect to receive hereunder. 3. Predecessor Employer. If the City by adopting this Plan is maintaining the plan of a predecessor employer, then ser- vice for such predecessor shall be treated as service for the City. 4. Intention to Continue Plan. The City expects to continue this Plan and the payment of contributions hereunder indefinitely; however, the continuance thereof is not assumed as a contractual obligation of the City, and in the event of the termination of the Plan for any reason, the distribution of the - 23 - funds in the Trust shall be made in accordance with the appli- cable provisions of this Plan. 5. Continuation of Plan by Successor. If the City shall be merged or consolidated with any municipality or other corporation, such surviving corporation may elect within thirty (30) days thereafter to continue this Plan, in which event those Participants who continue their employment with the successor entity shall remain as Participants of this Plan without a break in service. Those Participants who are not employed by the suc- cessor municipality or other corporation or, if such successor does not continue this Plan, all Participants shall be deemed to have retired regardless of age and shall receive the full amount in their accounts, to be paid in accordance with the provisions of Section 3 of Article V. In any event, after any such merger or consolidation, a Participant shall be entitled to receive a benefit which is at least equal in value to the benefit he would have been entitled to receive before the merger or consolidation if the Plan had then been terminated. 6. Controlled or Affiliated Service Group. If the City is a member of a controlled group of corporations (as defined in Section 414(b) of the Internal Revenue Code, as modified by Section 415(h)), or a group of trades or businesses (whether or not incorporated) under common control (as defined in Section 414(c), as modified by Section 415(h)), or an affiliated service group (as defined in Section 414(m)), then for purposes of participation, vesting and determining annual additions, all employees of all member corporations or entities shall be treated as employed by a single employer. 7. Ri hg is against City. Neither the establishment of this Plan, nor any allocation made hereunder, nor the payment of any benefit shall be construed as giving a Participant or any other person a legal or equitable right against the City or any employee thereof, or the Trustee or Professional Administrator, except as herein expressly provided or as required by law. - 24 - • r f • r . 8. Minors and Incompetents. If the Trustee determines that any person entitled to payments hereunder is a minor or incompetent by reason of physical or mental disability, it may make all payments thereafter becoming due to such person to any other person for the benefit of the minor or incompetent, without responsibility to follow the actual application of amounts so paid. Payments properly made pursuant to this direction shall completely discharge the City, the Trustee and the Plan Administrator from all liability connected therewith. 9. Applicable Law. The provisions of this Plan and Trust Agreement shall be construed, administered and enforced according to the laws of the State of Florida, except to the extent that such laws are inconsistent with or superseded by the Internal Revenue Code of 1954, as amended, or the Employee Retirement Income Security Act of 1974. 10. Mistake of Fact. In the event the City shall make a contribution to the Trust under a mistake of fact, the City may demand repayment of the amount so contributed at any time within one (1) year following the time of payment, and the Trustee shall then return such amount to the City within said one (1) year period. 11. Restrictions on Return of Contributions. For the purpose of Section 10 above, the amount that may be returned to the City shall be limited to the excess of the amount contributed by the City to the Plan over the amount that would have been contributed had the mistake of fact not occurred. Earnings attributable to the contributions returned under Section 10 above shall not revert to the City, but any losses attributable thereto must reduce the amount so returned. Notwithstanding anything to the contrary contained in Section 10, no amounts shall be returned to the City to the extent that such return would cause the balance of the account of any Participant - 25 - to be reduced to less than the balance that existed prior to the mistake of fact. 12. Claims. A Participant, former Participant or bene- ficiary may file with the Trustee a written claim for benefits upon the occurrence of any event which in the claimant's opinion gives rise to the payment of benefits hereunder. In the event the Trustee shall determine that the claimant is not entitled to the claimed benefits, the Trustee shall so notify the claimant in writing within ninety (90) days of receipt of the claim and shall set forth the reasons for such determination, with specific reference to the terms of this Plan upon which the denial is based. The claimant may request that an adverse determination be reviewed by the Trustee and shall be given the opportunity within ninety (90) days of said request to present any additional infor- mation which may establish his right to the benefit so claimed. The decision of the Trustee with respect to any such appeal shall be rendered in writing and shall be delivered or mailed to the claimant within sixty (60) days following receipt of the appeal. The Trustee's decision shall be final and binding on all parties. 13. Transfer of Interest. At the request of a Partici- pant who has terminated his employment, the Trustee may in its discretion transfer the nonforfeitable interest of such Participant in his account balance in the Plan to another trust forming part of a pension or profit sharing plan maintained by such Participant's new employer and meeting the requirements of Section 401(a) of the Internal Revenue Code (provided that the trust to which such transfer is made specifically permits the transfer), or to the Participant for the "roll- over" of such distribution within sixty (60) days into an Individual Retirement Account, as defined in Section 408 of the Internal Revenue Code. At its sole discretion, but acting in a nondiscriminatory manner, the Trustee may accept funds transferred from such a qualified plan or "conduit" Individual Retirement Account to the account of - 26 - , , ,• r a Participant under this Plan, provided that the plan from which such funds are transferred specifically permits the transfer and the Trustee is satisfied that the transfer will not jeopardize the qualified status of this Plan. The Trustee may also accept funds from a Participant consisting of employer contributions to a prior qualified pension or profit sharing plan or Individual Retirement Account if paid to the Trustee by the Participant within sixty (60) days of receipt of same from said prior plan. With regard to any funds transferred to this Plan hereunder, the Trustee shall maintain a separate, nonforfeitable account for the amount transferred and its share of the gains and losses of the Trust until such Participant's interest in his existing account is completely nonforfeitable, at which time the two accounts shall be merged. 14. Agent for Service of Process. For all purposes under this Plan, including for the filing of claims pursuant to this Article IX, the Trustee shall be the agent for service of process. IN WITNESS WHEREOF, the parties have executed this Amended and Restated Plan and Trust Agreement this C2„ day of October, 1983. Signed, sealed and delivered in the presence of: CITY OF INTER S NG -- -' / By: leidt ',iMri/�► Richard Rozansky,'City M -'ager As to ity (CORPORATE SEAL) - 27 - l 1 j • TRUSTEE: BOARD OF TRUSTEES OF THE CITY OF _._. WINTER SIZINGS / (:244.,/ . Jo V. Torca o, Mayor As to Trustee PROFESSIONAL ADMINISTRATOR: ESC, INC. "1:2_ By: i T-rry R. Wood President CAaA-- (2 • AK L.A.,. As to Professional Administrator - 28 -