ARTICLE IX. OFFICERS AND EMPLOYEES

DIVISION 1. GENERALLY

Sec. 2‑201. Repealed.

 Editor’s note – Ord. No. 93-7, adopted 9-21-93, repealed this section regarding civil service for policemen and firemen.

Sec. 2‑202. Appointment of subordinates within departments.

 Department heads shall appoint and remove subordinate employees of their respective departments, subject to the approval of the town manager.(Code 1962, 2‑6; Ord. No. 247, 2, 5‑15‑79; Ord. No. 97-5, 4, 5-6-97)

Note‑‑Formerly 2‑3.

Sec. 2‑203. Personnel management system.

 A personnel management system shall be implemented by the town. Said personnel management system shall be approved by the town council and all amendments thereto shall be approved by majority vote of the council. (Ord. No. 84‑341, 1, 12‑20‑83)

Note‑‑Formerly 2‑6.

Secs. 2‑204‑‑2‑210. Reserved.

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*Editor’s note‑‑Formerly, Art. IX, 2‑201‑‑2‑208, contained provisions pertaining to social security. Said provisions have been redesignated as Art. IX, Div. 2, 2‑211‑‑2‑218, for purposes of classification.

 DIVISION 2. SOCIAL SECURITY*

Sec. 2‑211. Policy declared.

 It is hereby declared to be the policy and purpose of the town to extend, effective as of July 1, 1956, to the employees and officials thereof, not excluded by law, nor excepted herein, and whether employed in connection with a governmental or proprietary function, the benefits of the system of old age and survivor’s insurance as authorized by the Federal Social Security Act and amendments thereto, including Public Law 734 of 81st Congress, and by Chapter 650, Florida Statutes, and to cover by such plan all services which constitute employment as defined in Section 650.02, Florida Statutes, performed in the employ of the town. (Code 1962, 21‑1)

 Sec. 2‑212. Act adopted.

 There is hereby adopted the terms, conditions, requirements, reservations, benefits, privileges, and other conditions thereunto appertaining of Title II of the Social Security Act as amended by Public Law No. 734, 81st Congress, for and on behalf of all the officers and employees thereof and of its departments and agencies, save and except any of such officers and employees now covered or authorized to be covered by any retirement system provided by law, and further excepting any official or employee who occupies any position, office, or employment not authorized to be covered by applicable state or federal laws or regulations, or whose service is specifically excepted in section 2‑203. (Code 1962,  21‑7)

Sec. 2‑213. Employees excluded.

 There is hereby excluded from this article any authority to make any agreement with respect to any position or any employee or official now covered, or authorized to be covered, by any other ordinance or law creating any retirement system for any employee or official of the town. (Code 1962,  21‑2)

Sec. 2‑214. Agreement authorized.

 The mayor or other chief executive officer of the town is hereby authorized and directed to execute all necessary agreements and amendments thereto with the Florida Industrial Commission, or its successor, as state agency, for the purpose of extending the benefits provided by the system of old age and survivor’s insurance to the employees and officials of this town, as provided in section 2‑201, which agreement shall provide for such method of administration of the plan by the town as is found by the state agency to be necessary for the proper and efficient administration thereof, and shall be effective with respect to services in employment covered by such agreement performed after the first day of July, 1955. (Code 1962,  21‑3)

State law reference‑‑The division of retirement of the department of administration is the successor to the Florida Industrial Commission as state agency pursuant to F.S. 650.02(4).

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*Note‑‑See the editor’s note at Art. IX.                                  150

Sec. 2‑215. Withholdings authorized and required.

 Withholdings from salaries, wages, or other compensation of employees and officials for the purpose provided in section 2‑201 are hereby authorized to be made, and shall be made in the amounts and at such times as may be required by applicable state or federal laws or regulations, and shall be paid over to the state agency designated by such laws or regulations to receive such amounts. (Code 1962, 21‑4)

Sec. 2‑216. Appropriations for employer contributions.

There shall be appropriated from available funds, derived from the general fund, such amounts, at such times, as may be required to pay promptly the contributions and assessments required of the town as employer by applicable state or federal laws or regulations, which shall be paid over to the lawfully designated state agency at the times and in the manner provided by law and regulation. (Code 1962, 21‑5)

Sec. 2‑217. Records, reports, adherence to regulations.

 The town shall keep such records and make such reports as may be required by applicable state or federal laws or regulations, and shall adhere to the regulations of the state agency. (Code 1962, 21‑6)

Sec. 2‑218. Custodian, withholding and reporting agent.

 The finance director is hereby designated the custodian of all sums withheld from the compensation of officers and employees and of the appropriated funds for the contributions of the town, and the finance directed is hereby made the withholding and reporting agent and charged with the duty of maintaining personnel records for the purposes of this article. (Code 1962, 21‑8)

Secs. 2‑219‑‑2‑225. Reserved.

DIVISION 3. PENSION PLAN FOR POLICE OFFICERS AND
FIREFIGHTERS*

Sec. 2‑226. Definitions.

As used herein, unless otherwise defined or required by the context, the following words and phrases shall have the meaning indicated

Accumulated contributions means a member’s own contributions to the fund, plus contributions made by the member on a pre-tax basis, on and after the first date when administratively feasible following the adoption of this ordinance as prescribed in Section 414(h)(2) of the Internal Revenue Code.

Actuarial equivalence means a form of benefit differing in time, period, or manner of payment from a specific benefit provided hereunder but having the same value when computed using RP 2000 Mortality Table and eight percent (8%) interest.

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*Editor’s note‑‑Ord. No. 89-15, 1‑9, adopted Sept. 19, 1989, did not specifically amend the Code; hence, inclusion herein as Div. 3,   2‑226‑‑2‑234, was at the discretion of the editor. Sections 10 and 11 of said ordinance, providing for an effective date and publication of public hearing, have been omitted from codification.

Agreement means this written instrument setting forth the provisions of the retirement system.

Average monthly earnings means one‑twelfth (1/12) of the arithmetic average of annual earnings for the five (5) highest years of credited service during the ten (10) years preceding termination of employment or retirement.

Beneficiary means the person or persons entitled to receive benefits hereunder at the death of a member and filed with the board. If no such designation is in effect at the time of death of the member, or if no person so designated is living at that time, the beneficiary shall be the estate of the member.

Board means the board of trustees, which shall administer and manage the system herein provided and serve as trustees of the fund.

Code means the Internal Revenue Code of 1986, as amended.

Credited service means the total number of years and completed months of continuous service with the town as an employee. Credited service shall not be deemed to be interrupted by and mem­bers shall receive benefit credit for periods during which the member is on an authorized leave of absence. Members shall not receive credit for service for which accumulated contributions have been refunded, provided, however, members who have received a refund may receive up to 5 years of such benefit credit if they redeposit to the Fund an amount representing up to 5 years of refunded accumulated contributions, along with interest at the rate of 8.0% per annum from the date of the refund to the date of redeposit. The time spent in the military service shall be governed according to Section 175.032(5), Florida Statutes, for firefighters, and Section 185.02(5) and (6), Florida Statutes, for police officers. Effective January 1, 2007, members who die or become disabled while serving on active duty military service which intervenes the member’s employment shall be entitled to the rights of this section even though such member was not re-employed by the Town.  Members who die or become disabled while on active duty military service shall be treated as though re-employed the day before the Member became disabled or dies, was credited with the service they would have been entitled to under this section, and then either died a non-duty death while employed or became disabled from a non-duty disability.

Earnings means total cash remuneration paid to a police officer or firefighter for employment services rendered to the town.

Effective January 18, 2012 overtime included in earnings for police officers is limited to 300 hours per member per year. Prior to January 18, 2012 all overtime is included in the definition of earnings for police officers. No hours of unused vacation leave earned after January 18, 2012 shall be considered earnings, however, member’s hours earned as of January 17, 2012 shall be included, provided that number of hours are cashed in at retirement.

Effective July 1, 2011 overtime included in earnings for firefighters is limited to 300 hours per member per year. Prior to July 1, 2011 all overtime is included in the definition of earnings for firefighters. No hours of unused vacation leave earned after July 1, 2011 shall be considered earnings, however, member’s hours earned as of June 30, 2011 shall be included, provided that number of hours are cashed in at retirement.

Beginning with earnings after December 31, 2008, and pursuant to Internal Revenue Code Section 414(u)(7), the definition of earnings includes amounts paid by the Town as differential wages to members who are absent from employment while in qualified military service.

Effective date means October 1, 1988, applied retroactively.

Employee means all regular, full‑time employees of the town, classified as combat firefighters and sworn police officers as defined in Chapters 175 and 185, Florida Statutes. Specifically excluded are civilian, clerical, and other non‑combat employees of the police and fire departments.

415 Compensation means, for purposes of the application of Code Section 415 limits, the wages or earnings as defined for purposes of income tax withholding under Code Section 3401(a), plus all other payments of compensation or earnings to an employee by the employer for which the employer is required to furnish the employee a written statement under Code Secs. 6041(d) and 6051(a)(3).

Fund means the trust fund established herein as part of the system.

Limitation year for purposes of the application of Code Section 415 limits is the calendar year.

Member means an actively employed employee who fulfills the prescribed participation requirements.

Plan year means the period beginning October 1 and ending September 30.

Spouse means the lawful wife or husband of a member at the time of pre‑retirement death or retirement.

System means the Town of Indialantic Police Officers’ and Firefighters’ Retirement System as contained herein and all amendments thereto.

Town means Town of Indialantic, Florida. (Ord. No. 89‑15, 1, 9‑19‑89; Ord. No. 91‑5, 1, 1‑15‑91; Ord. No. 99-2, 1, 1-19-99; Ord. No. 99-4, 1, 10-19-99; Ord. 10-06, 1, 3-16-10; Ord. No. 11-15, 1, 7-27-11; Ord. No. 13-05, 1, 1-15-13)

Sec. 2‑227. Membership.

 (a) Conditions and eligibility. All members of the retirement plans covering police officers and firefighters of the town on the effective date shall participate hereunder. All future new employees shall become members as a condition of employment.

(b) Application for membership. Each eligible employee shall complete an application form covering the following items, as well as such other items as may be prescribed by the board:

(1) Acceptance of the terms and conditions of the retirement system; and,

(2) Designation of a beneficiary or beneficiaries.

(c) Change in designation of beneficiary.

(1)  A member may from time to time change his or her designated beneficiary by written notice to the board upon forms provided by the board. Upon such change the rights of all previously designated beneficiaries to receive any benefits under the system shall cease.

(2)     If a retired member has elected an option with a joint pensioner or beneficiary and his or her retirement income benefits have commenced, he or she may thereafter change the designated joint pensioner or beneficiary up to twice in accordance with Florida Statutes 175.333 and 185.341 without the approval of the board of trustee or the current joint annuitant or beneficiary.  The retired member is not required to provide proof of the good health of the joint annuitant or beneficiary being removed, and the joint annuitant or beneficiary being removed need not be living. Any retired member who desires to change his or her joint annuitant or beneficiary shall file with the board of trustees a notarized notice of such change.  Upon receipt of a completed change of joint annuitant form or such other notice, the board of trustees shall adjust the retired member’s monthly benefit by the application of actuarial tables and calculations developed to ensure that the benefit paid is the actuarial equivalent of the present value of the retried member’s current benefit and there is no impact to the Plan.  No retired member’s current benefit shall be increased as a result of the change of beneficiary.  The retired member shall be responsible for the cost of the recalculation of the benefit by the actuary.

(Ord. No. 89‑15, 2, 9‑19‑89; Ord. 10-06, 2, 3-16-10)

Sec. 2‑228. Benefit amounts and eligibility.

 (a) Retirement dates.

(1)     Normal retirement. A member’s normal retirement date shall be the first day of the month coincident with or next following the earlier of: 1)  the attainment of age fifty‑five (55), or 2) the later of the attainment of age 52 and the completion of 25 years of Credited Service. A member may retire on his or her normal retirement date or on the first day of any month thereafter. Each member shall become one hundred percent (100%) vested in his or her accrued benefit on his or her normal retirement date.

(2) Early retirement. A member may retire on his or her early retirement date which shall be the first day of any month coincident with or next following the later of the attainment of fifty (50) years of age and the completion of ten (10) years of credited service.

(3)     Delayed retirement. Retirement shall not be mandatory solely by reason of age prior to the sixty‑fifth birthday.

At the option of the employee he or she may remain in the active employ of the town beyond the normal retirement date and beyond age sixty‑five (65); provided, however, that no person shall be entitled to remain in employment, regardless of age, if in the opinion of the town such person is incapable of or fails to satisfactorily perform his or her assigned job functions, for reasons of physical infirmity, emotional or mental impairment, lack of aptitude for the position held or for other cause. However, discharge, forced retirement, refusal to hire or denial of promotion may not be determined solely on the basis of age.

The delayed retirement date shall be the first day of the month coincident with, or next following, actual retirement. Nothing herein contained shall be construed to give any employee the right to be retained in the employ of the town or to interfere with the right of the town to terminate the employment of any employee at any time, nor upon dismissal or upon his or her voluntary termination of employment, to have any right or interest in the fund other than as is herein provided.

(b) Retirement benefit.

 (1) Normal or delayed. A member retiring hereunder onor after his or her normal retirement date shall receive a monthly benefit which shall commence on his or her retirement date and be continued thereafter during his or her lifetime, with the first one hundred twenty (120) payments guaranteed payable in any event. The monthly retirement benefit shall equal three  percent (3%) of average monthly earnings for each year of credited service.

(2) Early. A member retiring hereunder on his or her early retirement date may receive either a deferred or an immediate monthly retirement benefit payable for life, but with the first one hundred twenty (120) payments guaranteed payable, as follows:

a. A deferred monthly retirement benefit which shall commence on what would have been his or her normal  retirement date  had he or  she remained  as an employee and shall be continued on the first day of each month thereafter. The amount of each such deferred monthly retirement benefit shall be determined in the same manner as for retirement as     his or her normal retirement date except that, credited service and average monthly earnings shall be determined as of his or her early retirement date; or,

b. An immediate monthly retirement benefit which shall commence on his or her early retirement date and shall be continued on the first day of each month thereafter. The benefit payable shall be as determined in subsection a. above, reduced by three percent (3.0%) for each year by which the commencement of benefits precedes the normal retirement date.

(c)Disability.

(1)   Eligibility. Any member who is found by the boardupon examination to be mentally or physically incapacitated so as to be wholly unable to properly perform duties as an employee of the Town of Indialantic, Florida, may be retired for disability if the member meets the following service requirement:

a.  Service‑incurred disability (as determined by the board). No service requirement, membersare covered from date of employment.

b.  Non‑service incurred disability (as determined by the board). Member is eligiblefollowing completion of ten (10) years of credited service.

(2)     Exclusions. A member will be considered totally disabled if, in the opinion of the board, he or she is wholly prevented from rendering useful and efficient service as an employee, and a member will be considered permanently disabled if, in the opinion of the board of trustees, such member is likely to remain so disabled continuously and permanently from a cause other than is specified below:

a.  Excessive and habitual use by the member of drugs, intoxicants or narcotics;

b.  Injury or disease sustained by the member while willfully and illegally participating in fights, riots, civil insurrections, or while committing a crime;

c.  Injury or disease sustained by the member while serving in any armed forces.  This exclusion does not affect members who have become disabled as a result of intervening military servcie under the federal Heroes Earnings Assistance and Relief Tax Act of 2008 (H.R. 6081; P.L. 110-245.

d.  Injury or disease sustained by the member after his or her employment has terminated;

e.  Self‑inflicted injury or death.

(3)     Determination of disability. No member shall be permitted to retire under the provisions of this section until examined by a duly qualified physician or surgeon, to be selected by the board for that purpose, and is found to be disabled to the degree and in the manner specified in this section. Any member retiring under this section may be examined periodically by a duly qualified physician or surgeon or board of physicians and surgeons to be selected by the board for that purpose, to determine if such disability has ceased to exist.

(4)       Benefit amount. The benefit payable to a member who retires with a total and permanent disability which is determined to be non‑service incurred shall be an amount equal to three percent (3%) or his or her average monthly earnings multiplied by his or her years of credited service. In no event, however, shall the non‑service incurred disability benefit be less than twenty-five percent (25%) of the member’s average monthly earnings. The monthly benefit payable to a member who retires with a service incurred disability shall be an amount determined as for non‑service incurred disability but not less than forty‑two percent (42%) of average monthly earnings.

(5)     Benefit offsets. In the event that the disability benefits described herein plus other monthly amounts to which the disabled member is entitled, under Worker’s Compensation, or any other solely town‑financed disability or salary continuation program exceeds one hundred percent (100%) of the member’s average monthly earnings in effect on the date of disability, the disability benefits provided herein shall be reduced so that the total of all such regular monthly amounts does not exceed one hundred percent (100%) of such average monthly earnings; provided, however, the monthly disability benefit provided herein shall not be less than two percent (2%) of average monthly earnings times credited service.

(6)     Payment of benefits. The monthly retirement income to which a member is entitled in the event of his or her disability retirement will be payable on the first day of the first month after the board determines such entitlement. However, the monthly retirement income shall be payable as of the date of board approval and any portion due for a partial month shall be paid together with the first payment. The last payment will be on the earlier of the following:

a.      The first day of the month preceding the later of 1) the member’s date of death, or 2) the payment of 120 monthly premiums; or

b.      The first day of the month preceding the member’s recovery as determined by the board.

(7)   Recovery. If the board finds that a member who is receiving disability retirement income, is no longer disabled, as provided herein, the board shall direct that the disability retirement income be discontinued. Recovery from disability as used herein shall mean the ability of the member to render useful and efficient service as an employee. If the member recovers from disability, his or her service beginning with the first month for which he received a disability retirement income payment and ending with the date of recovery shall not be considered in determining the retirement benefit commencing on or after his or her normal retirement date.

(d) Pre‑retirement death.

(1)  Prior to vesting. The designated beneficiary of any member who dies prior to having completed ten (10) years of credited service shall receive a refund of the member’s accumulated contributions.

(2)  After vesting. The designated beneficiary of any member who dies after having completed ten (10) or more years of credited service shall receive a monthly benefit payable for life which represents the actuarial equivalent of the pension benefit accrued by the member at his or her date of death.

(e) Vesting. If a member terminates his or her employment, either voluntarily or by discharge, and is not eligible for any retirement benefits under this system, he or she shall be entitled to the following:

(1)  Ten (10) or more years of credited service. The accrued benefit determined as for normalretirement shall be payable for life and ten (10) years certain commencing at member’s election on the normal retirement date, or actuarially reduced and paid at the early retirement date, provided he or she does not elect to withdraw his or her accumulated contributions, and provided he or she survives until benefit payments actually begin. However, the board of trustees may, in its sole discretion and according to uniform, nondiscriminatory guidelines, authorize an alternative form or method of payment provided actuarial equivalence is maintained. The benefit rate per year of service shall be the same as determined for early or normal retirement, and shall depend upon the time of commencement of benefit payments. Forfeitures arising from terminations of employment shall remain as a part of the assets of the fund; or

(2)  Fewer than ten (10) years of credited service. Refund of accumulated contributions.

(f)     Deferred Retirement Option Plan (“DROP”).

(1)  Eligibility to participate in the DROP.

a.  Any member who is eligible to receive a normal retirement pension under section 2-228(a)(1) may participate in the DROP.  Members shall elect to participate by applying to the board of trustees on a form provided for that purpose and complying with the  requirements of sub-section (f)(1)e.  An eligible member may participate in the DROP for a period not to exceed a maximum of sixty (60) calendar months.

b.  All rights to participate in the DROP shall be forfeited if not exercised within 1095 days (three years) of the member’s initial eligibility for retirement.  The option to participate shall be exercised, if at all, as prescribed in sub-section (f)(1)e.

c.  A member shall not participate in the DROP beyond the time of attaining 39 years of service and the total years of participation in DROP shall not exceed five (5) years. For example:

1.  Members with thirty-four (34) years of credited service at time of entry shall only participate for five (5) years.

2.  Members with thirty-five (35) years of credited service at time of entry shall only participate for four (4) years.

3.  Members with thirty-six (36) years of credited service at time of entry shall only participate for three (3) years.

d.  Upon a member’s election to participate in the DROP, he or she shall be a retiree and is precluded from accruing any additional benefit under the fund.  For all fund purposes, the DROP participating member becomes a retired employee for purposes of the fund.  The amount of credited service, final average salary and percentage of average monthly earnings (the multiplier)  freeze for fund purposes as of the date of entry into the DROP.  The DROP participant remains otherwise eligible to be an employee during the DROP period and entitled to all the non-fund benefits of employment.  Participation in the DROP does not guarantee employment for the specified period of the DROP. Participation in the DROP by an eligible member beyond the initial 60-month period as authorized by this code shall be subject to town approval and on an annual contractual basis for all participants.

e.  Upon deciding to participate in the DROP, the member shall submit, on forms provided:

1.  An application for service retirement;

2.  A binding letter of resignation with the Town, establishing a deferred termination date which shall be the date of discontinuing in DROP.  The termination date may be changed by a DROP participant within the limitations specified in sub-section (f)(1)a. and

3.  Any other information required by the board or pursuant to law.

(2)  Amounts payable upon election to participate in DROP.

a.  Monthly retirement benefits that would have been payable had the member terminated employment with the department and elected to receive monthly pension payments will be paid into the DROP and credited to the participating member.  Payments into the DROP will be made monthly over the period that the participating member participates in the DROP, up to a maximum of sixty (60) months.

b.  Payments to the DROP earn interest using the actuarial asset rate of return earned on pension fund assets during the twelve (12) month period ending September 30th.  The rate determined shall be the rate reported to the division of retirement pursuant to Part VII of Chapter 112, Florida Statutes.

c.  No payments will be made from DROP until the member terminates employment as a police officer or firefighter.

d.  Upon termination of employment, participants in the DROP will receive the balance of the DROP account in accordance with the following rules:

1.  Members shall receive payment upon termination of employment.

2.  Payment shall be made in a lump sum. The entire DROP account balance, less any required federal tax withholding, will be paid to the participating member upon approval of the Board of Trustees.

e.  This payment will be made in accordance with the minimum distribution requirements of the 26 USC §401(a)(9) of the Internal Revenue Code.

f.  The beneficiary of the DROP participant who dies before payment from DROP begins shall receive the payment in a lump sum less any required federal tax withholding upon approval of the board of trustees.

(Ord. No. 89‑15, 3, 9‑19‑89; Ord. No. 91‑5, 2, 3, 1‑15‑91; Ord. No. 00-02, 1, 2, 3, 4, 3-21-00; Ord. No. 01-01, 1, 1-16-01; Ord. 07-11, 1, 6-19-07Ord. 09-15, 1, 8-18-09; Ord. 10-06, 3, 3-16-10)

Sec. 2‑229. Optional forms of benefits.

   (a)  Each member entitled to an early, normal or delayed retirement benefit or a disability benefit shall have the right at any time prior to the date on which benefit payments begin to elect to have his or her benefit payable under any of the options hereinafter set forth in lieu of the benefits provided herein, and to revoke any such elections and make a new election at any time prior to the actual commencement of payments. The value of payable optional benefits shall be actuarially equivalent to the value of benefits otherwise payable, and present value of payments to the retiring member must be at least equal to fifty percent (50%) of the total present value of payments to the retiring member and his or her beneficiary. The member shall make such an election by written request to the board, such request being retained in the board’s files.

Option 1‑‑Joint and last survivor option. The member may elect to receive a benefit during his or her lifetime and have one hundred percent (100%), seventy‑five percent (75%), sixty‑six and two‑thirds percent (66 2/3%) or fifty percent (50%) of such benefit continued after his or her death to and during the lifetime of his or her spouse or a relative other than his or her spouse. The election of Option 1 shall be null and void if the designated beneficiary dies before the member’s benefit payments commence.

Option 2‑‑Life annuity. The member may elect to receive an increased benefit payable for life only, ceasing upon death

(b)   If a retired member has elected an option with a joint pensioner or beneficiary and his or her retirement income benefits have commenced, he or she may thereafter change the designated joint pensioner or beneficiary up to twice in accordance with Florida Statutes §175.333 and §185.341 without the approval of the board of trustees or the current joint annuitant or beneficiary. The retired member is not required to provide proof of the good health of the joint annuitant or beneficiary being removed, and the joint annuitant or beneficiary being removed need not be living. Any retired member who desires to change his or her joint annuitant or beneficiary shall file with the board of trustees a notarized notice of such change. Upon receipt of a completed change of joint annuitant form or such other notice, the board of trustees shall adjust the retired member’s monthly benefit by the application of actuarial tables and calculations developed to ensure that the benefit paid is the actuarial equivalent of the present value of the member’s current benefit and there is no impact to the Plan. No retired member’s current benefit shall be increased as a result of the change of beneficiary. The retired member shall be responsible for the cost of the recalculation of the benefit by the actuary.

(Ord. No. 89‑15 4, 9‑19‑89; Ord. No. 01-01, 2, 1-16-01; Ord. 10-06, 4, 3-16-10)

Sec. 2‑230. Contributions.

(a)    Member contributions.

(1)   Amount. Effective on the first date when administratively feasible following the adoption of this ordinance, on behalf of each Member, amounts representing five percent (5%) of earnings shall be contributed to the fund on a pre-tax basis pursuant to the provisions of Section 414(h)(2) of the Internal Revenue Code. Member contributions shall be collected and deposited at least monthly.

(2)   Guaranteed refund. All benefits payable under this system are in lieu of a refund of accumulated contributions. In any event, however, each member shall be guaranteed the payment of benefits at least equal to the total amount of his or her accumulated contributions.

(b)   State contributions. Any monies received by reason of the laws of the State of Florida, for the purpose of funding or paying for retirement benefits for the police officers and firefighters of the town shall be deposited to the fund immediately, and under no circumstances more than five (5) days after receipt.

(c)    Town contributions. So long as this system is in effect, the town shall make quarterly contributions to the fund in an amount equal to the total cost for the year as shown by the most recent actuarial valuation of the system. The total cost for any year shall be defined as the total normal cost plus any additional amount required to amortize the unfunded actuarial accrued liability over not more than a thirty‑year period.

(d)   Other. Donations, gifts and contributions from sources other than the town may be deposited to the fund. Such deposits, at the discretion of the board, may be accounted for separately and kept on a segregated bookkeeping basis. Funds arising from these sources may be used for additional benefits for members, as determined by the board. (Ord. No. 89‑15, 5, 9‑19‑89; Ord. No. 99-2, 2, 1-19-99; Ord. No. 00-02, 5, 3-21-00; Ord. 09-15, 2, 8-18-09)

Sec. 2‑231. Administration.

 (a)    The sole and exclusive administration and responsibility for the proper operation of the retirement system and for making effective the provisions of this division are hereby vested in a board of trustees which shall be designated as the plan administrator for the system. The board shall consist of five (5) persons as follows:

(1)     Two (2) legal residents of the town who shall be appointed by the town council to serve for a period of two (2) years unless sooner replaced by the town council. An appointed member may succeed himself or herself;

(2)     One police officer and one firefighter to be elected as hereinafter provided; and

(3)     A fifth member, elected by the other four (4) members of the board, to be appointed by the town council as a ministerial duty for a two‑year term. Such fifth member shall be allowed to succeed himself or herself in office for additional two‑year terms if re‑elected.

(b)       The regular term of office of each elected or appointed trustee shall be two (2) years. Each employee trustee may succeed himself or herself if re‑elected as hereinafter provided.

(c)    [The] elective police officer member and firefighter member shall be elected in the following manner: By vote of all actively employed members of the respective police or fire departments at places designated by the board, of which all qualified members entitled to vote shall be notified in person or by written notice ten (10) days in advance of said election. The candidate who receives the highest number of votes for office shall be declared elected and shall take office immediately upon commencement of the term of office for which elected or as soon thereafter as he or she shall qualify therefor. An election shall be held not more than thirty (30) days and not less than ten (10) days prior to the commencement of the term for which a trustee is to be elected. The board shall establish and administer the nominating and election procedure for each election. The board of trustees shall elect from among its members a chairman, vice chairman and secretary, within ten (10) days after a new trustee is elected or appointed.

(d)   If a vacancy occurs in the office of trustee, the vacancy shall be filled for the unexpired term in the same manner as the office was previously filled.

(e)    The trustees shall serve without compensation, but they may be reimbursed from the fund for all necessary expenses which they may actually expend through service on the board.

(f)    Each trustee shall, within ten (10) days after his or her appointment or election, take an oath of office before the town clerk, that so far as it develops upon him or her they will diligently and honestly administer the affairs of the said board, and that he or she will not knowingly violate or willingly permit to be violated any of the provisions of the law applicable to the retirement system. Such oath shall be subscribed to by the members making it and shall be certified by the said clerk and filed in the office of the town clerk.

(g)    Each trustee shall be entitled to one vote on the board. Three (3) affirmative votes shall be necessary for a decision by the trustees at any meeting of the board. The chairman shall have the right to one vote only. Trustees may not cast proxy votes.

(h)    Subject to the limitations of this division, the board of trustees shall from time to time establish uniform rules and regulations for the administration of funds created by this division and for transactions of its business. The board shall make no regulations relating to removal or suspension of a trustee.

(i)         The board of trustees shall engage such actuarial accounting, legal and other services as shall be required to transact the business of the retirement system. The compensation of all persons engaged by the board of trustees and all other expenses of the board necessary for the operation of the retirement system shall be paid by the town or from the fund at such rates and in such amounts as the board of trustees shall agree. Funds may be distributed by a disbursing agent as determined by the board, but only upon written authorization by the board of trustees.

(j)    Reserved.

(k)   For all acts and determinations of the board the secretary shall prepare minutes.

(l)     The duties and responsibilities of the board of trustees shall include, but not necessarily be limited to the following:

(1)   Construe the provisions of the system and determine all questions arising thereunder;

(2)   Determine all questions relating to eligibility for benefits hereunder;

(3)   Determine and certify the amount of all retirement allowances or other benefits hereunder;

(4)   Establish uniform rules and procedures to be followed for administrative purposes, benefit applications and all matters required to administer the system;

(5)   Distribute to the members annually pertinent financial information concerning the system;

(6)   Receive and process all applications for participation and benefits;

(7)   Authorize all payments whatsoever from the fund, and to notify the disbursing agent, in writing, of approved benefit payments and other expenditures arising through operation of the system and fund;

(8)   Have actuarial studies and actuarial valuations performed, and make recommendations regarding any and all changes in the provisions of the system;

(9)   Make the final determination of a member’s eligibility for the disability benefits provided herein;

(10)   Perform such other duties as are specified in this division.

(m)   The board of trustees may furnish to the town auditor such available investment and actuarial information regarding the system as shall be requested. At its option, the board may select the town’s independent auditor for purposes of preparing an independent audit of the system provided said auditor meets the requirements of Sections 185.35(1)(k) and 175.351(12)(b), Florida Statutes. (Ord. No. 89‑15, 6, 9‑19‑89; Ord. No. 91‑5, 4‑‑6, 1‑15‑91; Ord. 99-2, 1—2, 1-19-99; Ord. 99-4, 1, 10-19-99; Ord. No. 00-02, 1—4, 3-21-00)

Sec. 2‑232. Finances and fund management.

 (a)    As part of the system there is hereby established the fund, which shall initially consist of the assets held in the existing police officer and firefighter retirement funds sponsored by the town in effect prior to the effective date, and into which shall be deposited all of the contributions and assets whatsoever attributable to the system.

(b)   The actual custody and supervision of the fund (and assets thereof) shall be vested in the board of trustees. Payments of benefits and disbursements from the fund shall be made by the disbursing agent but only upon written authorization from the board.

(c)    The board may appoint a national or state bank which meets the requirements of Chapter 280, Florida Statutes, for the purpose of serving as custodian of the fund and all assets of the fund shall be promptly and continually deposited therewith. In order to fulfill its investment responsibilities as set forth herein, the board may also retain the services of the custodian bank, an investment advisor registered under Investment Advisory Act of 1940, an insurance company, or a combination of these, for purposes of investment decisions and management. Such investment manager shall have full discretion in the investment of assets subject to limitation of this agreement and any guidelines as prescribed by the board.

(d)   All funds and securities of the system may be commingled in the fund, provided that accurate records are maintained at all times reflecting the financial composition of the fund, including accurate current accounts and entries as regards the following:

(1)   Receipts and disbursements of the fund;

(2)   Benefit payments;

(3)   All cash investments realized and unrealized gains or losses whatsoever;

(4)   All interest, dividends and capital gains (or losses) whatsoever attributable to contributionsand deposits to the fund;

(5)   Such other entries as may be properly required so as to reflect a clear and complete financial report of the fund.

(e)    The board of trustees shall have the following investment powers and authority;

(1)  The board of trustees shall be vested with full legal title to said fund, subject, however, and in any event to the authority and power of the town council to amend or terminate this trust, provided that no amendment or termination shall ever result in the use of any assets of this fund except for the payment of regular expenses and benefits under this system. All contributions from time to time paid into the fund, and the income thereof, without distinction between principal and income, shall be held and administered by the board or its agent in the fund and the board shall not be required to segregate or invest separately any portion of the fund;

(2)  The fund may be invested and reinvested in such securities or property, real or personal, wherever situated and of whatever kind, as shall be approved by the board of trustees, including but not limited to stocks, common or preferred, and bonds, and other evidences of indebtedness or ownership. The board of trustees is authorized to transfer from time to time to a common, collective, or pooled trust fund maintained by any bank which meets the requirements of Chapter 280, Florida Statutes, all of such part of the trust fund hereunder as the board of trustees may deem advisable, and such part or all of the trust fund so transferred shall be subject to all of the terms and provisions of such common, collective, or pooled trust fund which contemplates the commingling for investment  purposes of such  trust assets with  assets of other trusts.   The Board of Trustees may invest in foreign securities as regulated by Sections 175.071(1)(b)(4)b. and 185.06(1)(b)4b., Florida Statutes. The board of trustees is also authorized to withdraw from such common, collective, or pooled trust fund, from time to time, all or such part of the trust fund as the board of trustees may deem advisable;

(3)  The board of trustees may retain in cash and keep unproductive of income such amount of the fund as it may deem advisable, having regard for the cash requirements of the system;

(4)  No person or entity shall be liable for the making, retention or sale of any investment or reinvestment made as herein provided nor for any loss or diminishment of the fund, except that due to his, her or its own negligence, willful misconduct or lack of good faith;

(5)  The board may cause any investment in securities held by it to be registered in or transferred into its name as trustee or into the name of such nominee as it may direct, or it may retain them unregistered and in form permitting transferability, but the books and records shall at all times show that all investments are part of the trust fund;

(6)  The board is empowered, but is not required, to vote upon any stocks, bonds, or securities of any corporation, association, or trust and to give general or specific proxies of power of attorney with or without power of substitutions; to participate in mergers, reorganizations, recapitalizations, consolidations, and similar transactions with respect to such securities; to deposit such stock; or other securities in any voting trust or any protective or like committee with the trustees or with depositories designated thereby; to amortize or fail to amortize any part or all of the premium or discount resulting from the acquisition or disposition of assets; and generally to exercise any of the power of an owner with respect to stocks, bonds, or other investments comprising the fund which it may deem to be in the best interest of the fund to exercise;

(7)  The board shall not be required to make any inventory or appraisal or report of any court, nor to secure any order of court for the exercise of any power herein contained;

(8)  Where any action which the board is required to take or any duty or function which it is required to perform, either under the terms herein or under the general law applicable to it as trustee under this division, can reasonably be taken or performed only after receipt by it from a member, the town or any other entity, of specific information, certification, direction or instructions, the board shall be free of liability in failing to take such action or perform such duty or function until such information, certification, direction or instruction has been received by it;

(9)  Any overpayments or underpayments from the fund to a member or beneficiary caused by errors of computation shall be adjusted with interest at a rate per annum approved by the board. Overpayments shall be charged against payments next succeeding the correction. Underpayments shall be made up from the trust fund;

(10)   The board shall sustain no liability whatsoever for the sufficiency of the fund to meet the payments and benefits herein provided for;

(11)   In any application to or proceeding or action in the courts, only the town and the board shall be necessary parties, and no member or other person having an interest in the fund shall be entitled to any notice of service of process. Any judgment entered in such a proceeding or action shall be conclusive upon all persons.

(f)    Any of the foregoing powers and functions reposed in the board may be performed or carried out by the board through duly authorized agents, provided that the board at all times maintains continuous supervision over the acts of any such agent; provided further, that legal title to said fund shall always remain in the board of trustees.

(g)            Notwithstanding anything else in this subsection and as provided in Florida Statutes §215.473, the board of trustees must identify and publicly report any direct or indirect holdings it may have in any scrutinized company; as defined in that section. Beginning January 1, 2010, the Board must proceed to sell, redeem, divest, or withdraw all publicly traded securities it may have directly in that company. The divestiture of any such security must be completed by September 10, 2010. The board and its named officers or investment advisors may not be deemed to have breached their fiduciary duty in any action taken to dispose of any such security, and the board shall have satisfactorily discharged the fiduciary duties of loyalty, prudence, and sole and exclusive benefit to the participants of the pension fund and their beneficiaries if the actions it takes are consistent with the duties imposed by Florida Statutes §215.473, as provided for in Florida Statutes 175.071(8) and 185.06(7) and the manner of the disposition, if any, is reasonable as to the means chosen. For purposes of determining which companies are scrutinized companies, the Board may utilize the list of scrutinized companies as developed by the Florida State Board of Administration. No person may bring any civil, criminal, or administrative action against the board of trustees or any employee, officer, director, or advisor of such pension fund based upon the divestiture of any security pursuant to this subsection.

(Ord. No. 89‑15, 7, 9‑19‑89; Ord. No. 91‑5, 7, 1‑15‑91; Ord. No. 01-01, 3, 1-16-01; Ord. No. 10-06, 5, 3-16-10)

Sec. 2‑233. Repeal or termination of system.

(a)    Upon termination of the plan by the Town for any reason, or because of a transfer, merger, or consolidation of governmental units, services, or functions as provided in chapter 121, or upon written notice to the board of trustees by the Town that contributions under the plan are being permanently discontinued, the rights of all employees to benefits accrued to the date of such termination or discontinuance and the amounts credited to the employees’ accounts are nonforfeitable. The fund shall be distributed in accordance with the following procedures:

(1)        The board of trustees shall determine the date of distribution and the asset value required to fund all the nonforfeitable benefits, after taking into account the expenses of such distribution. The board shall inform the Town if additional assets are required, in which event the Town shall continue to financially support the plan until all nonforfeitable benefits have been funded.

(2)        The board of trustees shall determine the method of distribution of the asset value, whether distribution shall be by payment in cash, by the maintenance of another or substituted trust fund, by the purchase of insured annuities, or otherwise, for each police officer and firefighter entitled to benefits under the plan, as specified in subsection (3).

(3)        The board of trustees shall distribute the asset value as of the date of termination in the manner set forth in this subsection, on the basis that the amount required to provide any given retirement income is the actuarially computed single-sum value of such retirement income, except that if the method of distribution determined under subsection (2) involves the purchase of an insured annuity, the amount required to provide the given retirement income is the single premium payable for such annuity. The actuarial single-sum value may not be less than the employee’s accumulated contributions to the plan, with interest if provided by the plan, less the value of any plan benefits previously paid to the employee.

(4)        If there is asset value remaining after the full distribution specified in subsection (3), and after payment of any expenses incurred with such distribution, such excess shall be returned to the Town, less return to the state of the state’s contributions, provided that, if the excess is less than the total contributions made by the Town and the state to date of termination of the plan, such excess shall be divided proportionately to the total contributions made by the Town and the state.

(5)        The board of trustees shall distribute, in accordance with the manner of distribution determined under subsection (2), the amounts determined under subsection (3).

(Ord. No. 89‑15, 8, 9‑19‑89; Ord. 10-06, 6, 3-16-10)

 Sec. 2‑234. Miscellaneous.

 (a)    Medical board. The board of trustees may at its discretion designate a medical board to be composed of up to three (3) physicians, but limited to either M.D.’s and/or D.O.’s, who shall arrange for and pass upon all medical examinations required under the provisions of this division, shall investigate all essential statements or certifications made by or on behalf of a member in connection with an application for disability or retirement and shall report in writing to the board of trustees its conclusions and recommendations upon all matters referred to it. The payment for such services shall be determined by the board of trustees.

(b)   Discharged members. Members entitled to a pension shall not forfeit the same upon dismissal by the town, but shall be retired as herein described.

(c)    Nonassignability. No benefit provided for herein shall be assignable or subject to garnishment for debt or for other legal process.  However, the Board shall honor an income deduction order for alimony or child support in accordance with the rules and procedures adopted by the Board.

(d)   Pension validity. The board of trustees shall have the power to examine into the facts upon which any pension shall heretofore have been granted under any prior or existing law, or shall hereafter be granted or obtained erroneously, fraudulently or illegally for any reason. Said board is empowered to purge the pension rolls of any person heretofore granted a pension under prior or existing law or heretofore granted under this division if the same is found to be erroneous, fraudulent or illegal for any reason; and to reclassify any pensioner who has heretofore under any prior or existing law or who shall hereafter under this division be erroneously, improperly or illegally classified.

(e)    Incompetents. If any member or beneficiary is a minor or is, in the judgment of the board, otherwise incapable of personally receiving and giving a valid receipt for any payment due him or her under the system, the board may, unless and until claims shall have been made by a duly appointed guardian or committee of such person, make such payment or any part thereof to such persons, spouse, children or other person deemed by the board to have incurred expenses or assumed responsibility for the expenses of such person. Any payment so made shall be a complete discharge of any liability under the system for such payment.

(f)    [Codification.] Specific authority is hereby granted to codify and incorporate this ordinance [Ordinance No. 89‑15] in the existing Code of Ordinances of the Town of Indialantic, Florida.

(g)    [Repeal of conflicting provisions.] All ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed.

(h)    [Severability.] Should any section or provision of this division or any portion thereof, any paragraph, sentence or word be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereto as a whole or part thereof other than the part to be declared invalid.

(Ord. No. 89‑15, 9, 9‑19‑89; Ord. 10-06, 7, 3-16-10)

Secs. 2-235.  IRC Provisions.

(a)    415 Internal Revenue Code Limits

1.         Basic Limitations.  Subject to the adjustments in paragraph 3, the maximum amount of the actual annual retirement income paid in any year  with respect to a Participant under this Plan attributable to employer provided benefits shall not exceed the dollar amount allowable for any calendar year pursuant to §415(b) of the Code, as adjusted in such calendar year for increases in the cost of living in accordance with Regulations issued by the Secretary of the Treasury under §415(d) of the Code.  For purposes of applying the basic limitation, benefits payable in any form other than a straight life annuity with no ancillary benefits shall be adjusted, as provided by Treasury Regulations, so that such benefits are the Actuarial Equivalent of a straight life annuity.  For purposes of this subsection Article, the following benefits shall not be taken into account:

a.         Any ancillary benefit which is not directly related to retirement income benefits;

b.         Any other benefit not required under §415(b)(2) of the Code and Treasury Regulations thereunder to be taken into account for purposes of the limitation of §415(b)(1) of the Code.

2.         Participation in Other Defined Benefit Plans.  The limitation of this subsection with respect to any Participant who at any time has been a Participant in any other defined benefit plan (as defined in §414(j) of the Code) maintained by the Town shall apply as if the total benefits payable under all defined benefit plans in which the Participant has been a Participant where payable from one Plan.

3.         Adjustments in Limitations.

a.         In the event the Participant’s retirement benefits become payable before age sixty-two (62), the maximum amount of annual retirement income limitation prescribed by this Article shall be reduced in accordance with Regulations issued by the Secretary of the Treasury pursuant to the provisions of §415(b) of the Code, so that such limitation (as reduced) equals an annual benefit (beginning when such retirement income begins) which is equivalent to the Code §415(b) maximum amount of annual retirement income beginning at age 62 as follows:

(i)   if the annuity date is in a limitation year beginning before July 1, 2007, the annual amount of a benefit payable in the form of a straight annuity commencing at the participant’s annuity starting date that is the actuarial equivalent of the dollar limitation under section 415(b)(1)(A) (as adjusted under section 415(d)), with the actuarial equivalence computed using whichever of the following produces the smaller annual amount: (a) the interest rate and mortality table or other tabular factor specified in the plan for determining actuarial equivalence for early retirement purposes; or (2) a 5 percent interest rate assumption and the applicable mortality table.

(ii) if the annuity starting date is in a limitation year beginning on or after July 1, 2007, and the plan does not have an immediately commencing straight life annuity payable at both age 62 and the age of benefit commencement, the annual amount of a benefit payable in the form of a straight life annuity commencing at the participant’s annuity starting date that is the actuarial equivalent of the dollar limitation under section 415(b)(1)(A) (as adjusted under section 415(d)), with actuarial equivalence computed using a 5 percent interest rate assumption and the applicable mortality table and expressing the participant’s age based on completed calendar months as of the annuity starting date.

(iii) if the annuity starting date is in a limitation year beginning on or after July 1, 2007, and the plan has an immediately commencing straight life annuity payable at both age 62 and the age of benefit commencement, the lesser of (1) the adjusted dollar limitation determined in accordance with (ii); and (2) the product of the dollar limitation under section 415(b)(1)(A) (as adjusted under section 415(d)) multiplied by the ratio of the annual amount of the immediately commencing straight life annuity under the plan at the participant’s annuity starting date to the annual amount of the immediately commencing straight life annuity under the plan at age 62, both determined without applying the limitations of section 415.

(iv)   the applicable mortality table is the mortality table described in Rev. Rul. 2001-62.

b.         In the event the Participant’s benefit is based on at least fifteen (15) years of Credited Service, the adjustments provided for in subparagraph (a) above shall not apply.

c.         The reductions provided for in subparagraph (a) above shall not be applicable to disability benefits or pre-retirement death benefits.

d.         In the event the Participant’s retirement benefit becomes payable after age sixty-five (65), for purposes of determining whether this benefit meets the basic limitation set forth in paragraph 1 herein, such benefit shall be adjusted so that it is actuarially equivalent to the benefit beginning at age sixty-five (65) as follows:

(i) if the annuity starting date is in a limitation year beginning before July 1, 2007, the annual amount of a benefit payable in the form of a straight life annuity commencing at the participant’s annuity starting date that is the actuarial equivalent of the dollar limitation under section 415(b)(1)(A) (as adjusted under section 415(d)), with actuarial equivalence computed using whichever of the following produces the smaller annual amount: (1) the interest rate and mortality table or other tabular factor specified in the plan for determining actuarial equivalence for delayed retirement purposes; or (2) a 5 percent interest rate assumption and the applicable mortality table.

(ii) if the annuity starting date is in a limitation year beginning on or after July 1, 2007, and the plan does not have an immediately commencing straight life annuity payable at both age 65 and the age of benefit commencement, the annual amount of a benefit payable in the form of a straight life annuity commencing at the participant’s annuity starting date that is the actuarial equivalent of the dollar limitation under section 415(b)(1)(A) (as adjusted under section 415(d)), with actuarial equivalence computed using a 5 percent interest rate assumption and the applicable mortality table and expressing the participant’s age based on completed calendar months as of the annuity starting date.

(iii) if the annuity starting date is in a limitation year beginning on or after July 1, 2007, and the plan has an immediately commencing straight life annuity payable at both age 65 and the age of benefit commencement, the lesser of (1) the adjusted dollar limitation determined in accordance with (ii); and (2) the product of the dollar limitation under section 415(b)(1)(A) (as adjusted under section 415(d)) multiplied by the ratio of the annual amount of the immediately commencing straight life annuity under the plan at the participant’s annuity starting date to the annual amount of the immediately commencing straight life annuity under the plan at age 65, both determined without applying the limitations of section 415.

(iv)  the applicable mortality table is the mortality table described in Rev. Rul. 2001-62.

e.         Less than Ten (10) Years of Participation.  The maximum retirement benefits payable under this Article to any Participant who has completed less than ten (10) years of participation with the Town shall be the amount determined under paragraph 1 multiplied by a fraction, the numerator of which is the number of the Participant’s years of participation and the denominator of which is ten (10).  The reduction provided for in this subparagraph shall not be applicable to disability benefits or pre-retirement death benefits.

f.          Ten Thousand Dollar $10,000 Limit.  Notwithstanding the foregoing, the retirement benefit payable with respect to a Participant shall be deemed not to exceed the limitations in this subsection if the benefits payable, with respect to such Participant under this Plan and under all other qualified defined benefit pension plans to which the Town contributes, do not exceed ten thousand dollars ($10,000) for the applicable Plan year and for any prior Plan Year and the Town has not at any time maintained a qualified defined contributions plan in which the Participant participated.

g.         Reduction of benefits.  Reduction of benefits and/or contributions to all plans, where required, shall be accomplished by first reducing the Participant’s benefit under any defined benefit plans in which Participant participated, such reduction to be made first with respect to the plan in which Participant most recently accrued benefits and thereafter in such priority as shall be determined by the Board and the plan administrator of such other plans, and next, by reducing or allocating excess forfeitures for defined contribution plans in which the Participant participated, such reduction to be made first with respect to the plan in which Participant most recently accrued benefits and thereafter in such priority as shall be established by the Board and the plan administrator for such other plans provided, however, that necessary reductions may be made in different manner and priority pursuant to the agreement of the Board and the plan administrator of all other plans covering such Participant.

h.         Cost-of-Living Adjustments.  The limitations as stated herein shall be adjusted annually in accordance with any cost-of-living adjustments prescribed by the Secretary of the Treasury pursuant to §415(d) of the Code.

i.        Adjustment of Benefits payable in a form other than straight life annuity. Benefits payable in a form other than a straight life annuity and not subject to 417(e)(3) shall be adjusted to an actuarially equivalent straight life annuity that as follows:

(i) for limitation years beginning on or after July 1, 2007, the greater of the annual amount of the straight life annuity (if any) payable under the plan at the same annuity starting date, and the annual amount of a straight life annuity commencing at the same annuity starting date that has the same actuarial present value as the participant’s form of benefit computed using an interest rate of 5 percent and the applicable mortality table under section 417(e)(3).

(ii) for limitation years beginning before July 1, 2007, the annual amount of a straight life annuity commencing at the same annuity starting date that has the same actuarial present value as the participant’s form of benefit computed using whichever of the following produces the greater annual amount: (1) the interest rate and mortality table or other tabular factor specified in the plan for adjusting benefits in the same form; and (2) a 5 percent interest rate assumption that the applicable mortality table.

(iii) the applicable mortality table is the mortality table described in Rev. Rul. 2001-62.

4.         This section shall be effective for distributions after December 31, 2001.

(b)        401(a)(31) Rollovers

(1)        Direct transfers of eligible rollover distributions.

a.         General.  This subsection applies to distributions made on or after January 1, 1993.  Notwithstanding any provision of the plan to the contrary that would otherwise limit a distributee’s election under this subsection, a distributee may elect, at the time and in the manner prescribed by the board of trustees, to have any portion of an eligible rollover distribution paid directly to an eligible retirement plan specified by the distributee in a direct rollover.

(2)        Definitions

a.         Eligible rollover distribution: An eligible rollover distribution is any distribution of all or any portion of the balance to the credit of the distributee, except that an eligible rollover does not include any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the distributee or the joint lives (or joint life expectancies) of the distributee and the distributee’s designated beneficiary, or for a specified period of ten years or more and any distribution to the extent such distribution is required under section 401(a)(9) of the Code.

b.         Eligible retirement plan: An eligible retirement plan is an individual retirement account described in section 408(a) of the Code, an individual retirement annuity described in section 408(b) of the Code, a qualified trust, an annuity plan described in section 403(a) of the Code, an eligible deferred compensation plan described in §457(b) which is maintained by an eligible employer described in §457(e)(1)(A) of the Code or an annuity contract described in 403(b) of the Code, that accepts the distributee’s eligible rollover distribution.

c.         Distributee: A distributee includes an employee or former employee.  In addition, the employee’s or former employee’s surviving spouse and the employee’s or former employee’s spouse or former spouse who is entitled to payment for alimony and child support under an income deduction order, are distributees with regard to the interest of the spouse or former spouse.

d.         Direct rollover: A direct rollover is a payment by the plan to the eligible retirement plan specified by the distributee.

(3)           In the event of a mandatory distribution under this plan in excess of $1,000 and the member does not elect to receive the distribution directly then the Board shall make a transfer to an individual retirement plan of the Board’s choosing and shall notify the member in writing of such transfer.

(c)        401(a)(9) Required Distributions

(1)        Effective for distributions after December 31, 1996, in accordance with IRC Section 401(a)(9), all benefits under this plan will be distributed, beginning not later than the required beginning date set forth below, over a period not extending beyond the life expectancy of the member or the life expectancy of the member and a beneficiary.

(2)        Any and all benefit payments shall begin by the later of:

a.         April 1 of the calendar year following the calendar year of the member’s retirement date; or

b.         April 1 of the calendar year following the calendar year in which the member attains age 70 ½.

(3)        If an employee dies before his entire vested interest has been distributed to him, the remaining portion of such interest will be distributed at least as rapidly as provided for under this plan.

(4)        All distributions under this Plan will be made in accordance with this section, Code Section 401(a)(9) and the regulations thereunder, notwithstanding any provisions of this Plan to the contrary, effective beginning January 1, 2003.

(d)        401(a)(17) Limitation on Compensation

For any person who first becomes a member in any plan year beginning on or after January 1, 1996, compensation for any plan year shall not include any amounts in excess of the Internal Revenue Code s. 401(a)(17) limitation (as amended by the Omnibus Budget Reconciliation Act of 1993), which limitation shall be adjusted as required by federal law for qualified government plans and shall be further adjusted for changes in the cost of living in the manner provided by Internal Revenue Code s. 401(a)(17)(B). For any person who first became a member prior to the first plan year beginning on or after January 1, 1996, the limitation on compensation shall be not less than the maximum compensation amount that was allowed to be taken into account under the plan as in effect on July 1, 1993, which limitation shall be adjusted for changes in the cost of living since 1989 in the manner provided by Internal Revenue Code s. 401(a)(17)(1991).

(Ord. No. 10-09, 1, 7-20-10; Ord. No. 11-15, 2, 7-27-11)

2-236 – 2-249.  Reserved.

DIVISION 4.  CIVIL SERVICE SYSTEM

Sec. 2-250.  Civil service implemented.

Pursuant to Section 4.05 of the Town Charter, a civil service system is hereby created and implemented for Town employees, as set forth in the Personnel/Civil Service Manual dated March, 1997, as amended by the document entitled First Amendment to Personnel/Civil Service Manual, dated February, 2001 and as adopted by Ordinance No. 01-05 and as amended by the document entitled Second Amendment to Personnel/Civil Service Manual dated April , 2001 and as adopted by Ordinance 01-08, and as amended by the document entitled Third Amendment to Personnel/Civil Service Manual, dated August, 2002 and as adopted by Ordinance 02-21, and as amended by the document entitled Fourth Amendment to Personnel/Civil Service Manual dated September, 2003 and as adopted by Ordinance 03-13 and as amended by the document entitled Fifth Amendment to Personnel/Civil Service Manual, dated March, 2008 and as adopted by Ordinance 08-05 and as amended by the document entitled Sixth Amendment to Personnel/Civil Service Manual, dated February, 2009 and as adopted by Ordinance 09-05 and as amended by the document entitled Seventh Amendment to Personnel/Civil Service Manual, dated May, 2010 and as adopted by Ordinance 10-07  and as amended by the document entitled Eighth Amendment to Personnel/Civil Service Manual, dated October, 2010 and as adopted by Ordinance 10-11, and as amended by the document entitled Ninth Amendment to Personnel/Civil Service Manual dated August, 2012 and as adopted by Ordinance 12-12, subject to any collective bargaining and as amended by the document entitled Tenth Amendment to Personnel/Civil Service Manual dated February, 2013 and as adopted by Ordinance 13-07 and as amended by the document entitled Eleventh Amendment to Personnel/Civil Service Manual dated May, 2015, and as adopted by Ordinance 15-3. (Ord. No. 93-7, 3, 9-21-93; Ord. No. 97-5, 5, 5-6-97; Ord. No. 01-05, 1, 2-20-01; Ord. No. 01-08, 1, 5-21-01; Ord. No. 02-21, 1, 9-17-02; Ord. No. 03-13, 1, 10-21-03; Ord. No. 08-05, 1, 3-18-08;  Ord. No. 09-05, 1, 2-17-09; Ord. No. 10-7, 1, 5-18-10; Ord. No. 10-11, 1, 10-16-10; Ord. No. 12-12, 1, 8-21-12; Ord. No. 13-07, 1, 2-19-13; Ord. No. 15-03, 1, 5-13-15)

Sec. 2-251.  Repealed. (Ord. No. 93-7, 4, 9-21-93; Ord. No. 97-5, 6, 5-6-97)

DIVISION 5.  GENERAL EMPLOYEES’ PENSION PLAN

Sec. 2-252.  Definitions.

As used herein, unless otherwise defined or required by the context, the following words and phrases shall have the meaning indicated:

1.       Accumulated Contributions – means a Member’s own contributions to the Fund at the rate of four point five percent (4.5%) of Salary on a pretax basis as provided for in Section 414(h)(2) of the Internal Revenue Code.

2.       Actuarial Equivalence – means a form of benefit differing in time, period, or manner of payment from a specific benefit provided hereunder but having the same value when computed using the 1983 Group Annuity Mortality Table and eight percent (8%) interest.

3.       Agreement – means this written instrument setting forth the provisions of the Pension Plan.

4.       Average Final Compensation – means one-twelfth (1/12th) of the arithmetic average of Salary for the best five (5) years of employment during the last ten (10) years.  For those Members who are employed for fewer than five years, Average Final Compensation shall be the arithmetic average of Earnings during the total months of employment.  A year shall be 12 con­secutive months.

5.       Beneficiary – means the person or persons desig­nated to receive benefits hereunder at the post-retirement death of a Member who has been designated in writing by the Member and filed with the Board.  If no person so designated is living at that time, the Beneficiary, if applicable, shall be the estate of the Member.

6.     Board – means the Board of Trustees, which shall administer and manage the Plan herein provided and serve as Trustees of the Fund.

7.     Town – means Town of Indialantic, Florida.

8.     Credited Service – means the total number of years and completed months of service with the Town as a General Em­ployee, but omitting intervening years and completed months when such General Employee was not employed by the Town and years and completed months for which the Member has received a refund of Accumulated Contributions.

Members whose service is interrupted by active military service with the U. S. Armed Forces will receive benefit credit for up to four such years of active military service provided:

A. the Member is entitled to reemployment under the provisions of the Veterans’ Reemployment Rights Act,

B. the Member was employed by the Town as a Gener­al Employee immediately prior to the commencement of active military service, and

C. the Member applies for reemployment with the Town as a General Employee within 90 days of discharge from active military service.

9.     Joint Annuitant – means a Spouse, dependent child, or any person receiving 50% or more of their support from the Member who is designated by the Member for purposes of receiving benefits in the event of the pre-retirement death of the Member.

10.   Employee or General Employee – means all full-time persons employed by the Town who are classified as General Em­ployees.

11.   Salary – means total W-2 compensation, plus tax deferred and tax-exempt items of income.

Effective July 1, 2011 overtime included in salary is limited to 300 hours per member per year. Prior to July 1, 2011 all overtime is included in the definition of salary. No hours of unused vacation leave earned after July 1, 2011 shall be considered salary, however, member’s hours earned as of June 30, 2011 shall be included, provided that number of hours are cashed in at retirement.

12.   Fund – means the Trust Fund established herein as part of the Plan.

13.   Member – means an actively employed General Employee who fulfills the prescribed participation requirements.

14.   Plan – means the Town of Indialantic General Employees’ Pension Plan as contained herein and all amendments thereto.

15.   Spouse – means the lawful wife or husband of a Member at the time of pre-retirement death or retirement.

(Ord. No. 13-06, 1, 1-15-13)

Sec. 2-253.  Membership.

1.     Conditions and Eligibility.

All full-time General Employees who are employed by the Town on the Effective Date may  make a one-time irrevocable election to participate in the Plan.  Full-time General Employees who are hired after the Effective Date shall participate in the Plan as a condition of employment.  Provided, however, the Town Manager, solely, shall not participate.

2.     Beneficiary Designation.

Each eligible General Employee shall complete a Beneficiary Designation form for purposes of naming beneficiaries to receive any death benefits provided hereunder.

A Member may from time to time change his or her designated Beneficiary by written notice to the Board upon forms provided by the Board.  Upon such change the rights of all previ­ously designated Beneficiaries to receive any benefits under the Plan shall cease.

Sec. 2-254.  Benefit amounts and eligibility.

1.       Retirement Dates

A.       Normal Retirement – a Member’s Normal Retire­ment Date shall be the first day of the month coincident with or next following the later of the attainment of age sixty-five (65) and the completion of five (5) years of Credited Service.

Members who continue in employment beyond their Normal Retirement Date continue to earn benefit credit under the Plan.

Each Member shall become 100% vested in his or her accrued benefit on his or her Normal Retirement Date.

B.       Early Retirement – a Member’s Early Retire­ment Date shall be the first day of the month coincident with or next following the attainment of age sixty (60) and the comple­tion of five (5) years of Credited Service.

2.       Retirement Benefits.

A.       Normal – a Member retiring hereunder on or after his or her Normal Retirement Date shall receive a monthly benefit which shall commence on his or her Retirement Date and be continued thereafter during his or her lifetime.  The monthly retirement benefit shall equal two percent (2.0%) of Average Final Compensation for each year of Credited Service.

B.       Early – a Member retiring hereunder on or after his or her Early Retirement Date shall receive a monthly benefit which shall be computed as for Normal Retirement, but shall be reduced one-fifteenth (1/15th) for each year by which the commencement of monthly benefit payments precedes the Mem­ber’s Normal Retirement Date.

3.       Disability Benefits – None.  Members who terminate employment as a result of injury or disease are entitled to benefits payable based upon their age and service at termination as set forth herein.

4.     Pre-Retirement Death – if a Member dies while actively employed by the Town, the Member’s designated Benefici­ary shall receive, at their discretion, either 1) a refund of Accumulated Contributions, or 2) an immediate annuity payable for 120 months which shall be the actuarial equivalent of the accrued benefit earned by the Member as of the date of death.

5.       Vesting – if a Member terminates his employment, either voluntarily or by discharge, and is not eligible for any other benefits under this Plan, he shall be entitled to the following:

A.       With less than five (5) years of Credited Service – refund of Accumulated Contributions.

B.       With 5 or more years of Credited Service –

1.      The pension benefit accrued to his date of termination payable for life, commencing at the Member’s Normal Retirement Date or Early Retirement Date, provided the Member survives until benefit payments actually begin.  If the benefit is paid prior to the Normal Retirement Date, the monthly amount shall be determined as for Normal Retirement, but shall be reduced one-fifteenth (1/15th) for each year that the benefit commencement date precedes the Normal Retirement Date, or

2.      Refund of Accumulated Contributions.

In the event that the Member dies prior to the commencement of benefits, the designated Beneficiary shall re­ceive a refund of Accumulated Contributions.

Forfeitures arising from terminations of employ­ment shall serve only to reduce future Town contributions and shall remain as a part of the assets of the Fund.

(Ord. 06-04, 1, 1-17-06)

2-254.1.    Credit for workers’ compensation payment periods.

 A member who has been eligible or becomes eligible to receive workers’ compensation payments for an injury or illness occurring during his or her employment while a member shall, upon return to active employment with the Town for one (1) calendar month or upon approval for disability retirement in accordance with sec. 2-254 3., receive full retirement credit for the period prior to such return to active employment or disability retirement for which the workers’ compensation payments were received by the member.  However, no member may receive retirement credit for any such period occurring after the earlier of the date of maximum medical improvement as defined in s. 440.02, Florida Statutes, or the date termination of employment with the Town has occurred.  The Town and the member at the time of and during the worker’s compensation injury or illness shall make the required retirement contributions, as required by sec. 2-256, based on the member’s rate of monthly compensation immediately prior to his or her receiving workers’ compensation payments for retirement credit received by the member. (Ord. 10-01, 1, 11-17-09)

Sec. 2-255.  Optional forms of benefits.

Each Member entitled to a Normal or Early Retirement Benefit shall have the right at any time prior to the date on which benefit payments begin to elect to have his or her benefit pay­able under any of the Options hereinafter set forth in lieu of the benefits provided herein, and to revoke any such elections and make a new election at any time prior to the actual commence­ment of payments.  The Member shall make such an election by written request to the Board, such request being retained in the Board’s files.

OPTION 1 – Joint and Last Survivor Option

The Member may elect to receive a benefit during his or her lifetime and have such benefit (or designated fraction thereof) continued after his or her death to and during the lifetime of his or her Beneficiary.  The Election of Option 1 shall be null and void if the designated Beneficiary dies before the Member’s benefit payments commence.

OPTION 2 – Ten Year Certain and Life Annuity Option

The Member may elect to receive a reduced benefit which is payable for life, with the first 120 monthly payments guaranteed payable in any event.

OPTION 3 – Social Security Option

If a Member retires prior to the time at which Social Secu­rity benefits are payable, he may elect to receive an increased retirement benefit until such time as Social Security benefits shall be assumed to commence and a reduced benefit thereafter in order to provide, to as great an extent as possible, a more level retirement allowance during the entire period of retirement.  The amounts payable shall be as recommended by the actuaries for the Plan, based upon the Social Security law in effect at the time of the Member’s retirement.

In lieu of the other optional forms enumerated in this Section, benefits may be paid in any form approved by the Board so long as actuarial equivalence with the benefits otherwise payable is maintained.  Provided, however, lump sum payments of all or a portion of the Member’s benefit entitlement are prohib­ited.

Sec. 2- 256.  Contributions.

1.   Member Contributions.

Active Members of the Plan shall make contributions to the Fund through payroll deductions in the amount of four point five percent (4.5%) of their Salary.  These amounts shall be made on a pretax basis as provided for in Section 414(h)(2) of the Internal Revenue Code.  Such Member contributions shall be deposited no less frequently than monthly.  Members shall always be 100% vested in the amount of the Member contributions as these amounts shall represent the minimum benefits payable from the Plan.

2.   Town Contributions.

So long as this Plan is in effect, the Town shall make contributions to the Fund in an amount equal to the difference between the total cost for the year as shown in the most recent actuarial valuation of the Plan and amounts contributed by the Members as set forth in the actuarial valuation report.  The Town contributions shall be made in quarterly installments.  The total cost for any year shall be defined as the total Normal Cost plus the additional amount sufficient to amortize any Unfunded Actuar­ial Accrued Liabilities over not more than a forty (40) year period.

Sec. 2-257.  Administration.

1.   The General Administration and responsibility for the proper operation of the Pension Plan and for making effec­tive the provisions of this Ordinance are hereby vested in a Board of Trustees which shall be designated as the Plan Adminis­trator for the Plan.  The Board shall consist of five (5) persons as follows:

A.  Two legal residents of the Town who shall be appointed by the Town Council to serve for a period of 2 years unless sooner replaced by the Town Council.  An appointed Member may succeed himself or herself.

B.   Two Members of the Plan to be elected as hereinafter provided, and

C.  A fifth Member, elected by a majority of the other four (4) members of the Board, to be appointed by the Town Council as a ministerial duty for a two (2) year term.  Such fifth member shall be allowed to succeed himself or herself in office for additional two (2) years terms if reelected.

2.   The regular term of office of each elected or appointed Trustee shall be two (2) years.  Each elected Trustee may succeed himself or herself if reelected as hereinafter provided.

3.   Elected General Employee Trustees shall be elected in the following manner: by vote of all actively employed Members of the Plan at places designated by the Board, of which all qualified Members entitled to vote shall be notified in person or by written notice ten (10) days in advance of said election.  The candidate who receives the highest number of votes for office shall be declared elected and shall take office immediately upon commencement of the term of office for which elected or as soon thereafter as he or she shall qualify therefore.  The Board shall establish and administer the nominating and election procedure for each election.  The Board of Trustees shall elect from among its Members a Chairman, Vice Chairman and Secretary, within (10) days after a new Trustee is elected or appointed.

4.   If a vacancy occurs in the office of Trustee, the vacan­cy shall be filled for the unexpired term in the same manner as the office was previously filled.

5.   The Trustees shall serve without compensation, but they may be reimbursed from the Fund for all official expenses which they may necessarily actually expend through service on the Board.

6.   Each Trustee shall, within ten (10) days after his or her appointment or election, take an oath of office before the Town Clerk of the Town, that so far as it develops upon him or her they will diligently and honestly administer the affairs of the said Board, and that he or she will not knowingly violate or willingly permit to be violated any of the provisions of the law applicable to the Pension Plan.  Such oath shall be subscribed to by the Members making it and shall be certified by the said Clerk and filed in the office of the Town Clerk.

7.   Each Trustee shall be entitled to one (1) vote on the Board.  Three (3) affirmative votes shall be necessary for a decision by the Trustees at any meeting of the Board.  The Chair­man shall have the right to one (1) vote only.  Trustees may not cast proxy votes.

8.   Subject to the limitations of this ordinance, the Board of Trustees shall from time to time establish uniform rules and regulations for the administration of funds created by this Ordinance and for transactions of its business, including provi­sions for expulsion due to non-attendance of its elected Members which could result in a vacancy.

9.   The Board of Trustees shall engage such actuarial, accounting, legal and other services as shall be required to transact the business of the Pension Plan.  The compensation of all persons engaged by the Board of Trustees and all other ex­penses of the Board necessary for the operation of the Pension Plan shall be paid by the Town or from the Fund at such rates and in such amounts as the Board of Trustees shall agree.  Funds may be distributed by a disbursing agent as determined by the Board, but only upon written authorization by the Board of Trustees.

10.For all acts and determinations of the Board the Secre­tary shall prepare minutes.

11.The duties and responsibilities of the Board of Trus­tees shall include, but not necessarily be limited to the follow­ing:

A.  Construe the provisions of the Plan and determine all questions arising thereunder.

B.   Determine all questions relating to eligibil­ity for benefits hereunder.

C.  Determine and certify the amount of all retirement allowances or other benefits hereunder.

D.  Establish uniform rules and procedures to be followed for administrative purposes, benefit applications and all matters required to administer the Plan.

E.   Distribute to the Members information concerning the Plan.

F.   Receive and process all applications for participation and benefits.

G.  Authorize all payments whatsoever from the Fund, and to notify the disbursing agent, in writing, of approved benefit payments and other expenditures arising through operation of the Plan and Fund.

H.  Have actuarial studies and actuarial valua­tions performed, and make recommendations regarding any and all changes in the provisions of the Plan.

I.    Perform such other duties as are specified in this Ordinance.

12.The Board of Trustees shall furnish to the Town Auditor and the Town Finance Director such required investment and actu­arial information regarding the Plan as shall be requested.

Sec. 2-258. Finances and fund management.

1.   All of the contributions and assets whatsoever at­tributable to the Plan shall be deposited to the Fund.

2.   The actual custody and supervision of the Fund (and assets thereof) shall be vested in the Board of Trustees.  Pay­ments of benefits and disbursements from the Fund shall be made by the disbursing agent but only upon written authorization from the Board.

3.   The Board may appoint a National or State Bank with Trust powers or the Town Finance Director for the purpose of serving as Custodian of the Fund and all assets of the Fund shall be promptly and continually deposited therewith.  In order to fulfill its investment responsibilities as set forth herein, the Board may utilize the services of the Finance Director or retain the services of the Custodian Bank, an investment advisor regis­tered under Investment Advisory Act of 1940, an insurance compa­ny, or a combination of these, for purposes of investment deci­sions and management.

Such investment manager shall have full discretion in the investment of assets subject to limitation of this agreement and any guidelines as prescribed by the Board.

4.   All funds and securities of the Plan may be commin­gled in the Fund, provided that accurate records are maintained at all times reflecting the financial composition of the Fund, including accurate current accounts and entries as regards the following:

A.  Receipts and disbursements of the fund;

B.   Benefit payments;

C.  All cash investments realized and unrealized gains or losses whatsoever;

D.  All interest, dividends and capital gains (or losses) whatsoever attributable to contributions and deposits to the Fund;

E.   Such other entries as may be properly required so as to reflect a clear and complete financial report of the Fund.

5.   The Board of Trustees shall have the following invest­ment powers and authority:

A.  The Board of Trustees shall be vested with full legal title to said Fund, subject, however, and in any event to the authority and power of the Town Council of the Town of Indialantic, Florida to amend or terminate this Trust, provided that no amendment or Fund termination shall ever result in the use of any assets of this Fund except for the payment of regular expenses and benefits under this Plan.  All contributions from time to time paid into the Fund, and the income thereof, without distinction between principal and income, shall be held and administered by the Board or its Agent in the Fund and the Board shall not be required to segregate or invest separately any portion of the Fund.

B.   The Fund may be invested and reinvested in such securities or property, real or personal, wherever situated and whatever kind, as shall be approved by the Board of Trustees, including but not limited to stocks, common or preferred, and bonds, and other evidences of indebtedness or ownership.

C.  The Board of Trustees may retain in cash and keep unproductive of income such amount of the Fund as it may deem advisable, having regard for the cash requirements of the Plan.

D.  No person or entity shall be liable for the making, retention or sale of any investment or reinvestment made as herein provided nor for any loss or diminishment of the Fund, except that due to his, her or its own negligence, willful misconduct or lack of good faith.

E.   The Board may cause any investment in securi­ties held by it to be registered in or transferred into its name as Trustee or into the name of such nominee as it may direct, or it may retain them unregistered and in form permitting transfera­bility, but the books and records shall at all times show that all investments are part of the Trust Fund.

F.   The Board is empowered, but is not required, to vote upon any stocks, bonds, or securities of any corporation, association, or trust and to give general or specific proxies of power of attorney with or without power of substitutions; to participate in mergers, reorganizations, recapitalizations, consolidations, and similar transactions with respect to such securities; to deposit such stock, or other securities in any voting trust or any protective or like committee with the Trus­tees or with depositories designated thereby; to amortize or fail to amortize any part or all of the premium or discount resulting

from the acquisition or disposition of assets; and generally to exercise any of the power of an owner with respect to stocks, bonds, or other investments comprising the Fund which it may deem to be in the best interest of the Fund to exercise.

G.  The Board shall not be required to make any inventory or appraisal or report to any court, nor to secure any order of court for the exercise of any power herein contained.

H.  Where any action which the Board is required to take or any duty or function which it is required to perform, either under the terms herein or under the general law applicable to it as Trustee under this Ordinance, can reasonably be taken or performed only after receipt by it from a Member, the Town or any other entity, of specific information, certification, direction or instructions, the Board shall be free of liability in failing to take such action or perform such duty or function until such information, certification, direction or instruction has been received by it.

I.    Any overpayments or underpayments from the Fund to a Member or Beneficiary caused by errors of computation shall be adjusted with interest at a rate per annum approved by the Board.  Overpayments shall be charged against payments next succeeding the correction.  Underpayments shall be made up from the Trust Fund.

J.    The Board shall sustain no liability whatso­ever for the sufficiency of the Fund to meet the payments and benefits herein provided for.

K.  In any application to or proceeding or action in the courts, only the Town and the Board shall be necessary parties, and no Member or other person having an interest in the Fund shall be entitled to any notice or service of process.  Any judgment entered in such a proceeding or action shall be conclu­sive upon all persons.

6.   Any of the foregoing powers and functions reposed in the Board may be performed or carried out by the Board through duly authorized Agents, provided that the Board at all times maintains continuous supervision over the acts of any such Agent; provided further, that legal title to said Fund shall always remain in the Board of Trustees.

Sec. 2-259.  Maximum benefit limitations.

1. Basic Limitation.

Subject to the adjustments hereinafter set forth, the maxi­mum amount of annual retirement income payable with respect to a Member under this Plan shall not exceed $90,000 (or such lesser dollar amount as may be allowable for any calendar year pursuant to Section 415(b) of the Internal Revenue Code, as adjusted in such calendar year for increases in the cost of living in accord­ance with regulations issued by the Secretary of the Treasury under Section 415(d) of the Code).

For purposes of applying the above limitation, benefits payable in any form other than a straight life annuity with no ancillary benefits shall be adjusted, as provided by Treasury Regulations, so that such benefits are the Actuarial Equivalent of a straight life annuity.  For purposes of this Section, the following benefits shall not be taken into account:

i.    Any ancillary benefit which is not directly related to retirement income benefits;

ii.    Any other benefit not required under Section 415(b)(2) of the Internal Revenue Code and Regulations thereunder to be taken into account for purposes of the limitation of Sec­tion 415(b)(1) of the Internal Revenue Code.

2.   Participation in Other Defined Benefit Plan.  The limitation of this Section with respect to any Member who at any time has been a Member in any other defined benefit Plan (as defined in Section 414(j) of the Internal Revenue Code) main­tained by the Town shall apply as if the total benefits payable under all defined benefit Plans in which the Member has been a Member were payable from one Plan.

3.   Adjustments in Limitations.  In the event the Member’s retirement benefits become payable before unreduced Social Secu­rity benefits are payable, the $90,000 limitation prescribed by this Section shall be reduced in accordance with Regulations issued by the Secretary of the Treasury pursuant to the provi­sions of Section 415(b) of the Internal Revenue Code.  If the Member’s retirement benefit becomes payable after unreduced Social Security benefits are payable, for purposes of determining whether this benefit meets the limitation set forth in subsection 1 herein, such benefit shall be adjusted so that it is actuarial­ly equivalent to the benefit beginning at the age when unreduced Social Security benefits are payable.  This adjustment shall be made using an assumed interest rate of five percent (5%) and shall be made in accordance with regulations promulgated by the Secretary of the Treasury or his or her delegate.

4.   Less than Ten Years of Service.  The maximum retirement benefits payable under this Section to any Member who has com­pleted less than ten (10) years of credited service with the Town shall be the amount determined under subsection 1 of this Section multiplied by a fraction, the numerator of which is the number of the Member’s years of credited service and the denominator of which is ten (10).

5.   $10,000 Limit.  Notwithstanding the foregoing, the retirement benefit payable with respect to a Member shall be deemed not to exceed the limitations set forth in this Section if the benefits payable, with respect to such Member under this Plan and under all other qualified defined benefit pension plans to which the Town contributes, do not exceed $10,000 for the ap­plicable Plan Year and for any prior Plan Year and the Town has not at any time maintained a qualified defined contribution Plan in which the Member participated.

6.   Accrued Benefit of Effective Date.  Notwithstanding the above limitations, if any Member as of the effective date hereof, has an Accrued Benefit as of that date that exceeds the above limitations, then such limitations shall equal such Accrued Benefit.  However, no cost of living adjustments as provided in subsection 9 below shall be applicable to the amount of retire­ment benefit so determined.

7.   Member in Defined Contribution Plan.  In any case where a Member under this Plan is also a Member in a “Defined Contribu­tion Plan” as defined in Section 414(i) of the Internal Revenue Code, maintained by the Town, the sum of the “Defined Benefit Plan Fraction” and the “Defined Contribution Plan Fraction” (both as defined in Section 415(e) of the Internal Revenue Code) shall not, subject to the restrictions and exceptions contained in Section 2004 of the Act, exceed 1.0.

8.   Reduction of benefits.  Reduction of benefits and/or contributions to all Plans, where required, shall be accomplished by first reducing the Member’s benefit under any defined benefit Plans in which Member participated, such reduction to be made first with respect to the Plan in which Member most recently accrued benefits and thereafter in such priority as shall be determined by the Trustees and the Plan Administrator of such other Plans, and next, by reducing or allocating excess forfei­tures for defined contribution Plans in which the Member partici­pated, such reduction to be made first with respect to the Plan in which Member most recently accrued benefits and thereafter in such priority as shall be established by the Trustees and the Plan Administrator for such other provided, however, that neces­sary reductions may be made in a different manner and priority pursuant to the agreement of the Trustees and the Plan Adminis­trator of all other Plans covering such Member.

9.   Cost-of-Living Adjustments.  The limitations as stated in subsections 1, 2, 3, and 7 herein shall be adjusted to the time payment of a benefit begins in accordance with any cost-of-living adjustments prescribed by the Secretary of the Treasury pursuant to Section 415(d) of the Internal Revenue Code.

Sec. 2-260.  Repeal or termination of system.

1.   This Ordinance establishing the Plan and Fund, and subsequent ordinances pertaining to said Plan and Fund, may be modified, terminated or amended in whole or in part; provided that if this or any subsequent Ordinance shall be amended or repealed in its application to any person benefiting hereunder, the amount of benefits which at the time of any such alteration, amendment or repeal shall have accrued to the Member or Benefici­ary shall not be affected thereby, except to the extent that the assets of the Fund may be determined to be inadequate.

2.   If this Ordinance shall be repealed, or if contribu­tions to the Plan are discontinued, the Board shall continue to administer the Plan in accordance with the provisions of this Ordinance, for the sole benefit of the then Members, any Beneficiaries then receiving retirement allowances, and any future person entitled to receive benefits under one of the Options provided for in this ordinance who are designated by any of said Members.  In the event of repeal, or if contributions to the Plan are discontinued, there shall be full vesting (100%) of benefits accrued to date of repeal and the assets of the Plan shall be allocated in an equitable manner to provide benefits on a proportionate basis to the persons so entitled to benefits in accordance with the provisions thereof.

3.   The following shall be the order of priority for pur­poses of allocating the assets of the Plan upon repeal of this ordinance or if contributions to the Plan are discontinued:

A.  Members already retired under the Early or Normal Retirement provisions of the Plan and those eligible for such Retirement provisions of the Plan and those eligible for such Retirement, active or deceased, but not actually retired, and their Beneficiaries, in proportion to and to the extent of the then actuarially determined present value of the benefits payable less amounts received.  If any funds remain, then

B.   Beneficiaries of deceased Members, in the same manner as in B. above.  If any funds remain, then

C.  Accumulated Contributions, then

D.  To all other Members and their Beneficiaries in the same manner as B. but based upon Credited Service and Average Final Compensation as of the date of Termination of the Plan, and with any vested benefits given precedence.

The allocation of the Fund provided for in this subsection may, as decided by the Board be carried out through the purchase of insurance company contracts to provide the benefits determined in accordance with this subsection.  The Fund may be distributed in one sum to the persons entitled to said benefits or the dis­tribution may be carried out in such other equitable manner as the Board may direct.  The Trust may be continued in existence for purposes of subsequent distributions.

4.   After all the vested accrued benefits provided hereun­der have been paid and after all other liabilities have been satisfied, then and only then shall any remaining funds revert to the general fund of the Town.

Sec. 2-261.  Direct transfer of eligible rollover distributions.

1.   General.  This Section applies to distributions made on or after January 1, 1993.  Notwithstanding any provision of the Plan to the contrary that would otherwise limit a distributee’s election under this Section, a distributes may elect, at the time and in the manner prescribed by the Board, to have any portion of an eligible rollover distribution paid directly to an eligible retirement plan specified by the distributes in a direct roll­over.

2.   Definitions.

A.  Eligible Rollover Distribution: An eligible rollover distribution is any distribution of all or any portion of the balance to the credit of the distributes, except that an eligible rollover distribution does not include: any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the distributes or the joint lives (or joint life expectancies) of the distributes and the distributee’s designated Beneficiary, or for a specified period of ten years or more; any distribution to the extent such distribution is required under Section 401(a)(9) of the Internal Revenue Code; and the portion of any distribution that is not includable in gross income.

B.   Eligible Retirement Plan: An eligible re­tirement plan is an individual retirement account described in Section 408(a) of the Internal Revenue Code, and individual retirement annuity described in Section 408(b) of the Internal Revenue Code, an annuity plan described in Section 403(a) of the Internal Revenue Code, or a qualified trust described in Section 401(a) of the Internal Revenue Code, that accepts the distribu­tee’s eligible rollover distribution.  However, in the case of an eligible rollover distribution to the surviving Spouse, and eligible retirement plan is an individual retirement account or individual retirement annuity.

C.  Distributee: A distributes includes an employee or former employee.  In addition, the employee’s or former employee’s surviving Spouse is a distributes with regard to the interest of the Spouse.

D.  Direct Rollover: A direct rollover is a payment by the Plan to the eligible retirement plan specified by the distributes

Sec. 2-262. Miscellaneous.

1.   Discharged Members – Unless otherwise required by Florida law, Members entitled to a pension shall not forfeit the same upon dismissal by the Town, but shall be retired as herein described.

2.   Non-Assignability – no benefit provided for herein shall be assignable or subject to garnishment for debt or for other legal process.

3.   Pension Validity – The Board of Trustees shall have the power to examine into the facts upon which any pension shall heretofore have been granted under any prior or existing law, or shall hereafter be granted or obtained erroneously, fraudulently or illegally for any reason.  Said Board is empowered to purge the pension rolls of any person heretofore granted a pension under prior or existing law or heretofore granted under this Ordinance if the same is found to be erroneous, fraudulent or illegal for any reason; and to reclassify any pensioner who has heretofore under any prior or existing law or who shall hereafter under this Ordinance be erroneously, improperly or illegally classified.

4.   Incompetents – if any Beneficiary is a minor or if a Member or Beneficiary is, in the judgment of the Board, otherwise incapable of personally receiving and giving a valid receipt for any payment due him or her under the Plan, the Board may, unless and until claims shall have been made by a duly appointed guardian or committee of such person, make such payment or any part thereof to such persons, Spouse, children or other person deemed by the Board to have incurred expenses or assumed respon­sibility for the expenses of such person.  Any payment so made shall be a complete discharge of any liability under the Plan for such payment.

(Ord. No. 97-13, 1, 9-9-97)

Sec. 2-263 – 2-279.  Reserved