Res 1489-64 RESOLUTION NO. 1489
A RESOLUTION OF THE CITY COUNCIL OF TEE
CITY OF DELRAY BEACH, FLORIDA, PERTAINING
TO THE ADOPTION OF A RETIREMENT PLAN FOR
CERTAIN EMPLOYEES OF THE CITY; PROVIDING
FOR A RETIREMENT TRUST; AND CREATING A
RETIREMENT COMMITTEE.
WHEREAS, the City Council of the City of
Delray Beach, Florida, has the power to establish
a pension plan for the city employees by virtue
of Section 25(c) of the Charter of the City of
Delray Beach; and
~0.UiEREAS, the City Council has determined that
it is in the best interests of the citizens of
this city to provide a retirement fund for certain
of the city employees;
NOW, THEREFORE, BE IT RESOLVED:
CLERK
RETIREMENT PLAN FOR EMPLOYEES OF
CITY OF DELRAY BEACH
TABLE OF CONTENTS
RESOLUTION
Section Pag___~e
ARTICLE I - CREATION
1.1 - Authorization ......................... 1-a
1.2 - Purpose ............................ 1-a
1.3 - Name ............................. 1-a
1.4 - Effective Date ........................ 1-a
1.5 - Introduction ......................... 1-a
ARTICLE II - ELIGIBILITY: PARTICIPATION: SERVICE
2.1 - Eligibility: Participation ................. 2-a
2.2 - Service ............................. 2-b
2.3 - Leave of Absence ....................... 2-b
2.4 - Credited Service ....................... 2-c
ARTICLE III - MISCET,7ANEOUS PROVISIONS REGARDING THE PLAN
3.1 - Participant's Contribution Account ..............
3 2 - City Contributions 3-a
3.3 - Expenses of Administration .................. 3-b
3.2 - City's Contributions Irrevocable .............. 3-b
3.5 - Amendment of Plan ....................... 3-b
3.6 - Termination of Plan ...................... 3-c
ARTICLE IV - BASIS, AMOUNT AND PAYMENT OF RETIREMENT INCOME
A~[D OTKER BENEFITS
2.1 - Basis of Retirement Income ..................
4.2 - Normal Retirement and Retirement Income ............
4.3 - Early Retirement and Retirement Income ............
4.2 - Disability Retirement and Retirement Income .......... 4-d
4.5 - Benefits Other Than on Retirement ...............
2.6 - Optional Forms of Retirement Income .............. 4-k
4.7 - Lump-Sum Payment of Small Retirement Income ..........
4.8 - L~m~tation on Payment of Retirement Income ..........
2.9 - Termination of Service for Dishonesty ............
4.10 - Funding of Benefits Through Purchase of Life Insurance
Contract or Contracts ..................... 4-o
2.11 - Forfeitures .......................... 4-p
2./2 - Temporary Limitations on Benefits Required by
the Internal Revenue Service .................
RETIREMENT PLAN FOR EMPLOYEES OF
CITY OF D~.~RAY BEACH
TABLE OF CONTENTS (Continued)
Section Page
ARTICLE V - MISCELLANEOUS PROVISIONS REGARDING PARTICIPANTS
5.1 - Participants to Furnish Required In*ormation ......... 5-a
5.2 - Beneficiaries ....................... 5-a
5.3 - Contingent Beneficiaries ................... 5-b
5.4 - Participants' Rights in Trust Fund .............. 5-c
5.5 - Benefits Not Assignable ................... 5-d
5.6 - Benefits Payable to Minors and Incompetents ......... 5-e
5.7 - Conditions of Employment Not Affected by Plan ........ 5-f
5.8 - Abandonment of Benefits ................... 5-f
ARTICLE VI - ADMINISTRATION
6.1 - Administration by Retirement Committee ............ 6-a
6.2 - Officers and Employees of Retirement Committee ........ 6-b
6.3 - Action by Retirement Committee ................ 6-b
6.4 - Rules and Regulations of Retirement Committee ....... 6-c
6.5 - Powers of Retirement Committee ................ 6-c
6.6 - Liability of Retirement Committee .............. 6- c
6.7 - Actuary ........................... 6-d
6.8 - Applicable Law ........................ 6-e
ARTICLE VII - TRUST FUND AND TRUSTEE
7.1 - Trustee ............................ 7-a
7.2 - Purpose of Trust Fund ..................... 7-a
7.3 - Benefits Supported Only by Trust Fund ............. 7-a
7.4 - Trust Fund Applicable only to Payment of Benefits ...... 7-a
7.5 - Termination of Plan and Distribution of Trust Fund ...... 7-b
7.6 - Benefits lO0~ Vested if Plan is Terminated or
Contributions Permanently Discontinued ............ 7-d
ARTICLE 1 - CREATION
Section 1.1 - AUTHORIZATION
A retirement plan and retirement trust is hereby authorized to be
adopted and administered to provide benefits in accordance -with the provisions of
this resolution. A retirement committee is to be appointed as provided herein and
such retirement committee is authorized and directed to take the necessary steps
for putting the plan into effect, submitting the necessary documents to obtain
approval of the plan by the Internal Revenue Service as a qualified plan under
Section ~01(a) of the Internal Revenue Code, make any amendments required by the
Internal Revenue Service to obtain such approval and a~m~nister the plan as pro-
vided herein.
Section 1.2 - PURPOSE
The purpose of the plan is to provide benefits to regular and permanent
employees of the City, as the term "employee" is defined herein, and their bene-
ficiaries upon the occurrence of retirement, death, or disability of the employee
or upon his termination of employment as provided herein.
Section 1.3 - NAME
The plan hereby created by the City of Delray Beach (hereinafter
referred to as the "City") shall be known as the City of Delray Beach Retirement
Plan (hereinafter referred to as the "plan"). All the affairs and business of
such plan shall be transacted in such ~eme.
Section 1.h - EFFECTIVE DATE
The plan hereby created shall become effective as of January l, 1965.
Section 1.5 - INTRODUCTION
The plan will be administered by a retirement committee, as more fully
1-b
described in Section 6.1 of the plan. In conjunction with the establishment of
the plan, the City will establish a trust fund pursuant to an agreement which will
be known as the RETIREMENT TRUST FOR EMPLOYEES OF THE CITY OF DELRAY BEACH (w~ch
trust agreement, as it is originally written and as it may thereafter be amended,
is hereinafter referred to as the "trust agreement")~ with The First National Bank
of Delray Beach, Delray Beach, Florida as trustee (hereinafter referred to as the
"trustee"), and the funds contributed by the City and the employees for the purpose
of providing the benefits specified in the plan will be held in the trust fund and
administered by the trustee in accordance with the provisions of the trust agree-
ment.
The plan and trust agreement are applicable to the employees of the
City as described in Section 2.1 hereof. Each such employee retiring from the
service of the City~ in accordance with the provisions of the plan will be entitled
to retirement income benefits determined in accordance with the provisions which
follow.
The trust agreement, and any future amendments thereto, shall form a part
of the plan and any amendments hereto, in the same manner as if all terms and pro-
visions thereof were copied here in detail~ the terms and provisions of the plan,
and any future amendments hereto, shall form a part of said trust agreement as
from time to time it may be amended, in the same manner as if the same were copied
in said trust agreement in detail.
ARTICLE II
ELIGIBILITY: PARTICIPATION: SERVICE
Section 2.1 - ELIGIBILITY: PARTICIPATION
The word "employee" as used herein means any person in the regular full-
time service of the City; provided, however, that such term shall not include city
councilmen, the city attorney, judge, prosecutor (and assistants) or any person
employed for a temporary period or for a temporary Job or those firemen and police-
men employed by the City who are participants in retirement plans as provided for
in Chapters 175 and 185 of the Florida Statutes or other applicable state statutes.
The pronouns "he," "him," and "his," used in this plan, shall also refer to similar
pronouns of the feminine gender unless otherwise qualified by the context.
Each such employee who has completed one year of credited service with
the City as of the effective date of the plan shall, as a condition of continued
employment, become a participant in the plan as of that date and will make
contributions to the plan as required by Section 3.1 hereof and will be subject
to all other provisions of the plan beginning on such date. Each other such
employee shall, as a condition to continued employment, become a participant here-
under on the date as of which he has completed one year of credited service ~th
the City and will make contributions to the plan as required by Section 3.1 hereof
and will be subject to all other provisions of the plan beginning on such date;
provided, however, that any person employed by the City on or after the effective
date of the plan who has attained the age of 60 years as of the date of his employ-
ment will not become a participant in the plan.
Any employee who is absent from the active service of the City on
the effective date of the plan by reason of leave of absence granted by the
City, or by reason of compulsorymilitary service, will become a participant
hereunder as of (a) or (b), whichever is later~ where (a) is the date of his
return to active employment with the City and (b) is the date as of which he
has completed one year of credited service.
Each participant will be retired under the system and entitled
to a retirement income upon retirement from service with the City by reason of
his age, subject to any minimum service requirements herein. Each such parti-
cipant whose employment is terminated because of mental or physical disability
in accordence with Section ~.4 shall be entitled to disability benefits. Upon
the death of a participant, his beneficiaries will be entitled to death benefits
as prescribed in Section 4.5 hereof. Any participant whose service is termi-
nated for any reason other then retirement, disability retirement or death will
be entitled to benefits upon termination of service as provided in Section
hereof.
Section 2.2 - SERVICE
The term service means that period of continuous~ uninterrupted
employment with the City from the employee's or participant's last date of
employment to the earlier of the date of termination of his service and his
normal retirement date, as herein described. Any absence fro~ the active
service of the City~ including but not limited to absences by reason of discharge
or resignation~ which is not deemed a leave of absence as defined in Section 2.3
hereof~ will be considered a termination of service.
Section 2.3 - LEAVE OF ABSENCE
Absence from the active service of the City by reason of leave of
absence granted by the City because of illness or military service, or for any
other reason, will not terminate an employee's or participant's service provided
he returns to the active employment of the City at or prior to the expiration
of his leave or, if not specified therein, within the period of time which
accords with the Gity's policy with respect to permitted absences. If the
employee or participant does not return to the active employment of the City
at or prior to the expiration of his leave of absence as above defined, his
service will be considered terminated as of the date on which his leave began~
provided, however, that except for absence because of military service, if
such employee or participant is prevented from his timely return to the active
employment of the City because of his total and permanent disability or his
death, he shall, nevertheless, be entitled to any disability benefit as provided
in Section 4.4 hereof or to any death benefit as provided in Section 4.5 hereof~
whichever is applicable, as though he returned to active employment immediately
preceding the date of his total and permanent disability or his death.
Absence from the active service of the City because of compulsory
engagement in military service will be considered a leave of absence granted
by the City and will not terminate the service of an employee or a participant
if he returns to the active employment of the City within the period of time
during which he has re-employment rights under any applicable Federal law or
within 60 days from and after discharge or separation from such compulsory
engagement if no Federal law is applicable. No provision of this paragraph
or in this plan shall require re-employment of any employee or participant
whose active service with the City was terminated by reason of military service.
Section 2.~ - CEEDITED SERVICE
The credited service of each employee or participant will be the
total period of his service as defined in Section 2.2 hereof, computed in
completed months~ from his last date of employment until his normal retirement
date or, if earlier~ his date of actual retirement or termination of employment
except as provided in Section 2.1 and the following paragraph.
The period of any absence of 31 days or more will be excluded from an
employee's or a participant's credited service unless he receives regular com-
pensation from the City during such absence and except as otherwise provided
below. Any absence of 30 days or less will be included. The first two years of
any absence after the effective date of the plan due to the employee's ¢~ partici-
pant'~ engagement in military service will be included in his credited service
if such absence is covered by a leave of absence granted by the City or is by
reason of compulsory military service. An employee or a participant who was
absent prior to the effective date of the plan because of his engagement in
military service will be credited for the full period of such absence if such
absence was covered by a leave of absence granted by the City or vas by reason
of compulsory military service, provided such period would otherwise have been
included as credited service if the employee or participant had been in the active
service of the City.
ARTICLE III
MISCELLANEOUS PROVISIONS REGARDING THE PLAN
Section 3.1 - PARTICIPA~' S CONTRIBUTION ACCOUNT
The "participant's contribution account" will consist of mandatory
participant contributions.
Each participant will contribute toward the cost of the system an amount
equal to 3% of the first $2,800 of his basic annual compensation as defined in
Section ~.1~ and 6% of his basic annual compensation in excess of $4~800.
Each participant shall continue to contribute to the system until the
earliest to occur of the following dates:
(i) Date the participant retires under the plan.
(ii) D~te of death of the participant.
(iii) Date of termination of the participant's service
with the City.
(tv) The participant's normal retirement date.
Anything in the plan to the contrary notwithstanding~ the total benefits
payable under the plan to, or with respect to~ a participant shall not be less than
the benefits that can be provided by the participant's contribution~ and further
provided, if a terminated participant (as defined in Section 2.5) elects to with-
draw his contributions prior to his normal retirement date, he will be entitled
only to the return of his contributions to his date of termination of service in
lieu of all other benefits payable under the plan. Contributions cannot be with°
drawn while a participant remains in the service of the City or after the payment
of benefits under the plan has commenced.
Section 3.~ - CITY CONTRIBUTIONS
The City intends, but does not guarantee to make such contributions as
are required, together with contributions of participants, to maintain the trust
fund established for the purposes of the plan on a sound actuarial basis, as deter-
mined by the actuary employed by the City Council in accordance with Section
6.7 hereof.
Section ~.~ EXPENSES 0FADMINISTRATION
The City may pay all expenses incurred in the administration of the
plan~ including expenses and fees of the trustee~ but it shall not be obligated
to do so~ and any such expenses and fees not so paid by the City shall be paid
from the trust fund.
Section 3.4 - CITY'S CONTRIBUTIONS IRREVOCABLE
The City shall have no right~ title or interest in the trust fund or
in any part thereof, and no contributions made thereto shall revert to the City
except such part of the trust fund, if any, which remains therein after the satis-
faction of all liabilities to persons entitled to benefits under the plan~ as
described in Section 7.5 hereof with respect to termination of the plan~ and except
as provided in the following paragraph.
Any provisions of the plan and trust agreement to the contrary not-
withstanding~ if the office of the District Director of Internal Revenue~ upon
initial application for approval, and after the City has had an opportunity to
make any changes in the plan and trust agreement which may be suggested by such
office for approval of the plan and trust agreement~ rules that the plan and trust
agreement fail to qualify as tax exempt under Sections ~O1 and 501 of the Internal
Revenue Code of 1954~ as amended, then the plan and trust agreement shall become
null and void and any contributions made by the City to the trust prior to the date
of such initial determination as to qualification shall be returned to the City by
the trustee.
Section 3'~ ' AMENDMENT OF PLAN
The plan may be amended by the City from time to time in any respect
whatever, by resolution of the City Council of Delray Beach, specifying such ~mend-
ment~ subject only to the follo~ing limitations:
(A) Under no condition shall such amendment result in or permit the
return or repayment to the City of any property held or acquired by the trustee
hereunder or the proceeds thereof or result in or permit the distribution of any
such property for the benefit of anyone other than the participants and their bene-
ficiaries or joint pensioners, except to the extent provided by Section ~.~ and
Section 7-5 hereof with respect to expenses of administration and termination of the
plan, respectively.
(B) Under no condition shall such amendment change the duties or
responsibilities of the trustee hereunder without its written consent.
Subject to the foregoing limitations, any amendment may be made re-
troactively which, in the Judgment of the retirement committee~ is necessary or
advisable provided that such retroactive amendment does not deprive a participant,
without his consent, of a right to receive benefits hereunder which have already
fully vested and matured in such participant, except such modification or amendment
as shall be necessary to comply with any laws or regulations of the United States
or of any state to qualify this as a tax-exempt plan and trust.
Section 3.6 - TEBMINATION OF PLAN
The plan may be terminated by the City at any time by delivering to
the trustee in writing a resolution of the City Council of Delray Beach, duly
certified by an official of the City~ specifying that (a) the plan is being termi-
nated or (b) contributions thereunder are being permanently discontinued. The plan
shall automatically terminate only upon adjudication by a court of competent juris-
diction that the City is bankrupt or insolvent (whether such proceedings be voluntary
or involuntary), upon dissolution of the City or upon its liquidation, merger or
consolidation without provisions being made by its successor, if any~ for the con-
tinuation of the plan.
ARTICLE IV
BASIS~ AMOUNT AND PAYMENT OF RETIREMEB~ INCOME AND OTHER BENEFITS
Section 4.1 - BASIS OF RETIREME~ INCOME
The monthly normal retirement income payable will be based on the
participant's years of credited service and his rate of annual compensation.
The rate of annual compensation includes all basic compensation paid to
the participant by the City d~ring his period of credited service; provided, ho~
ever, that earnings for the period prior to January l, 1965 shall be considered to
be equal to the January l, 1964 basic annual compensation multiplied by the number
of years of credited service of the participant prior to January l, 1965.
The term "basic compensation" means the compensation actually paid to a
participant by the City, exclusive of bonuses, commissions, overtime pay, expense
allowances and all other extraordinary compensation.
Section 4.2 - NORMAL RETIRE?~NTANDRETIREMt~ INCOME
Normal retirement under the plan is retirement from the service of the
City on or after the normal retirement date. In such event, payment of retirement
income will be governed by the following provisions of this section.
(A) Normal Retirement Date: The normal retirement date of each
participant will be (a) the first day of the month coincident with or next follow-
ing the date he both attains the age of 65 years and completes l0 years of credited
service, or (b) January l, 1965, whichever is later; provided, however, that a
participant may continue in the service of the City beyond his normal retirement
date with the consent of the City, which consent, although renewable, will be for
no longer than a year at a time.
(B) Amount of Retirement Income:
(1) To Participant Who Retires on Normal Retirement Date: The
monthly amount of retirement income payable for the lifetime of a participant who
retires on his normal retirement date shall be equal to one-twelfth (1/12) of the
annual amo'~nt of his annual retirement income (i.e., 1/12 of the sum of (a) and
(b) below):
4-b
(a) For Credited Service Prior to January l~ 1965: The annual
amount of retirement income for the participant's credited service prior
to J~nus~y l~ 1965 is the p~rticipant's number of years of credited service
prior to January l, 1965 multiplied by the sum of (i) ~/~% of the first
~4~800 of the participant's basic annual compensation as of
1964, and (ii) 1-1/2~ of the participant's basic annual compensation as
of January l, 1964 which is in excess of
(b) For Credited Service on and after January l, 1965: The annual
amount of retirement income for the participant's credited service on and
after January l, 1965 is equal to the sum~of (i) for each month of the
participant's credited service from Jan~y l, 1965 or from his last date
of employment~ if later, to his normal retirement date or his prior date
of retirement or termination of service, 3/4% of the first 9400 of his
basic compensation paid during such month~ and (ii) for each month of the
participant's credited service from January l, 1965 or from his last date
of employment, if later~ to his normal retirement date or his prior date of
retirement or termination of service, 1-1/2% of that portion of his basic
compensation paid during such month which is in excess of ~00.
(2) To Participant Who Retires After Normal Retirement Date: A partici-
pant who retires after his normal retirement date will upon actual retirement be
entitled to receive a monthly retirement income, or~ if an optional form of payment
is in effect pursuant to Section 4.6 below, a retirement benefit the single-sum
value of which, at his actual retirement date, equals the sum of (a) the single-sum
value of the normal monthly retirement income (computed as of his normal retirement
date in accordance with Section 4.2 (B)(1) above) to which he was entitled on his
normal retirement date, and (b) the amount of interest on such single-sum
value in (a) above~ where the interest shall be compounded annually from
h-C
the participant's normal retirement date to his actual retirement date and all
computations shall be on the basis of the interest and mortality assumptions used
for the actuarial valuation next preceding his normal retirement date.
(C) Payment of Retirement Income: The monthly retirement income
payable in the event of normal retirement will be payable on the first day of each
month. The first payment will be made on the participant's normal retirement date
(or on the first day of the month coincident with or next following his actual
retirement~ if later)~ and the last payment will be the payment due next preceding
the retired participant's death.
Section h.~ - EARLY RETIREMENT AND RETIREMENT INCOME
Early retirement under the plan is retirement from the service of the
City~ with the consent of the City, as of the first day of any month prior to the
participant's normal retirement date but subsequent to the date as of which he
has both attained the age of 55 years and completed at least 15 years of credited
service. In the event of early retirement~ payment of retirement income will be
governed by the following provisions of this section.
(A) Early Retirement Date: The early retirement date will be the
first day of the month coincident with or next following the date a participant
retires from the service of the City under the provisions of this section prior
to his normal retirement date.
(B) Amount of Retirement Income: The monthly ~mount of retirement
income payable to a participant who retires prior to his normal retirement date
under the provisions of this section shall be an amount equal to the product of
(a) the deferred monthly retirement income commencing at normal retirement date
which has accrued to his early retirement date computed in accordance with Section
~.2(B)(1) and (b) an actuarial reduction factor to take into account the partici-
pant's younger age at retirement and the earlier commencement of retirement
income payments.
(C) Payment of Retirement Income: The retirement income payable in
the event of early retirement will be payable on the first day of each month. The
first payment will be made on the part.~cipant~s early retirement date and the last
payment will be the payment due next preceding the retired participant's death.
Section 4.4 - DISABILITY RETIRemENT AND RETIREMENT INCOME
(A) Definition: A participant may retire from the service of the
City under the plan if he becomes totally and permanently disabled, as defined
in Paragraph (B) of this Section ~.4, on or after the effective date of the plan
but prior to his normal retirement date. Such retirement from the service of
the City shall herein be referred to as disability retirement.
(B) Total and Permenent Disability: A participant will be
considered totally disabled if, in the opinion of the retirement committee, he is
wholly prevented from engaging in any occupation for wage or profit; and a partici-
pant will be considered permanently disabled if, in the opinion of the retirement
committee, such participant is likely to remain so disabled continuously and
permanently from a cause other than specified in Paragraph (C) of this Section 4.4.
(C) Nonadmissible Causes of Disabilit~.: A participant will not be
entitled to receive any disability retirement income if, in the opinion of the
retirement committee, the disability is a result of:
(1) Excessive and habitual use by the participant of drugs,
intoxicants or narcotics;
(2) Injury or disease sustained by the participant while
willfully and illegally participating in fights, riots~ civil insurrections or
while committing a felony;
(3) Injury or disease sustained by the participant while serving
in any armed forces;
(4) Injury or disease sustained by the participant diagnosed
or discovered subsequent to the date his employment has terminated;
~5) Injury or disease sustained by the participant while
working for anyone other than the City, and arising out of such employment~ or
(6) Injury or disease sustained by the participant as a re-
sult of an act of war, whether or not such act arises from a formally declared
state of war.
(D) Proof of Disability: The retirement committee, before approv-
ing the payment of any disability retirement income, shall require satisfactory
proof~ in the form of a certificate from a duly licensed physician selected by the
retirement committee, that the participant has become disabled as provided herein.
Every six months after commencement of disability retirement income, or more fre-
quently, the retirement committee may s~m~larly require proof of the continued dis-
ability of the participant.
(E) Disability Retirement Income: The benefit payable to a parti-
cipant who retires from the service of the City due to total and permanent disabi-
lity is the monthly retirement income, determined actuarially, payable for l0 years
certain and life thereafter, which can be provided by (a) or (b)~ whichever is
greater, where (a) is the single-sum value (computed as of the participant's date
of termination of service due to disability) of his deferred monthly retirement
income beginning at his normal retirement date which has accrued to the date of
termination of his service due to disability~ and (b) is 12 times his rate of
basic monthly compensation as of the January 1st which is coincident ~th, or
~m~ediately precedes, the date of termination of the participant's service due to
disability. The amount of such accrued deferred monthly retirement income shall
be computed as for normal retirement under Section ~2~B)(1).
(F) ~yment of Disability Retirement Income: The monthly retire-
ment income to which a participant is entitled in the event of his disability re-
tirement will be payable on the first day of each month. The first payment will be
made on the first day of the month coincident with, or next following, the later
4-f
to occur of (a) the date on which the disability has existed for six months and
(b) the date as of which application is made in writing by the participant for
the payment of such retirement income. The last payment will be either (i), if
the participant recovers from the disability prior to his normal retirement
date, the payment due next preceding the date of such recovery or (ii), if the
particip~ut dies without recovering from his disability or attains his normal
retirement date while still disabled, the 120th payment or the payment due next
preceding his death, whichever is later. Any monthly retirement income payments
due after the death of a disabled participant shall be paid to the participant's
designated beneficiary (or beneficiaries) as provided in Sections 5.2 and 5.9
hereof.
(G) Recovery from Disability: If the retirement committee finds
that a participant who is receiving a disability retirement income is~ at any time
prior to his normal retirement date, no longer disabled, as provided herein, the
retirement committee shall direct that the retirement income be discontinued.
Recovery from disability as used herein shall mean the ability of the partici-
pant to engage in any occupation for wage or profit. However, any such par-
ticipaut who recovers from disability and whose retirement income is discon-
tinued by the retirement committee and who, as of the date of termination of
his service due to disability, had both attained the age of 55 years and com-
pleted at least 15 years of credited service shall, if he does not re-enter
the service of the City, be entitled to the early retirement income or the
vested deferred retirement income as provided in Sections ~.3 and 4.5(A) hereof
as of the date of termination of his service due to disability and upon his
attained age as of the date of his recovery from disability, but early retirement
will be subject to consent of the City and the amount of the retirement income
upon early retirement will be actuarially reduced to take into account the partici-
pant's younger age and the earlier commencement of retirement income payments as
provided in Section 4.3 hereof.
(H) Re-employment by the City: If the participant recovers from
disability end re-enters the service of the City, his service will be deemed
to have been continuous, but the period beginning with the first month for which
he received a disability retirement income payment and ending with the date he
re-entered the service of the City will not be considered as credited service
for the purposes of the plan.
Section 4.5 - BENEFITS OTHER THAN ON RETIP~24ENT
(A) Benefit on Termination of Service and on
Death After Termination of Service:
(1) In the event of the termination of a participant's service
prior to his normal retirement date for any reason other than his death, early
retirement with the consent of the City as described in Section 4.3 hereof or
disability retirement as described in Section 4.4. hereof, after he has both
attained the age of 55 years and completed 15 years of credited service (herein-
after referred as as a "terminated participant"), he will be entitled to a monthly
retirement income, payable for the lifetime of the participant, to commence on
his normal retirement date, if he shall then be living, in an amount which can be
provided by the single-sum value of his deferred monthly retirement income
beginning at his normal retirement date which has accrued to the date of termination
of his service, accumulated at interest from the date of termination of his service
to his normal retirement date. The amount of such accrued deferred monthly retire-
ment income shall be computed as for normal retirement under Section 4.2(B)(1).
(2) In the event a terminated participant dies prior to the
commencement of his retirement income at his normal retirement date (without
having received, in accordance with Section 4.7, the value of the benefit in
Section 4.5(A)(1) above), his beneficiary (or beneficiaries) will receive the
monthly retirement income, payable for l0 years certain and life thereafter and
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beginning on the date of the participant's death, which can be provided by the
single-sum value of the participant's accrued deferred monthly retirement in-
come as of the date of termination of the participant's service, accumulated
at interest from the date of termination of the participant's service to the
date of his death.
(B) If a participant's service with the City is terminated
while he is entitled to the retirement income described in Section 4.5(A)(1)
above and he subsequently re-enters the service of the City, he will be entitled,
upon such re-entry, to the credited service he had on the date of termination
of his service in lieu of the benefits to which he was entitled on such date
under Section ~.5(A)(1); provided, however~ that the monthly retirement income
payable to such participant commencing at normal retirement date shall not be
less than the amount to which he was entitled under Section h.5(A)(1) prior to
his re-entry into the service of the City. Except as provided in Section ~.~
hereof with respect to disability retirement~ any other participant will, on
re-entry into the service of the City (unless he has been on leave of absence
pursuant to the provisions of Section 2.5 hereof)~ be treated as if he then
first entered the service of the City.
(4) The provisions of Section 4.6 hereof relating to optional
forms of retirement income are applicable to the benefits provided under Section
4.5(A) (1) hereof.
(5) Except as provided in Section 4.2 with respect to normal
retirement, Section 4.4 with respect to disability retirement and Section 4.5
with respect to death~ the participant whose service is terminated prior to the
date as of which he has both attained the age of 55 years and completed at least
15 years of credited service sh~ll be entitled only to the return of his contri-
butions.
(B) Benefit Payable in the Event of Death on or Prior
to Normal Retirement Date While in Service
(1) If the service of a participant is terminated by reason
of his death, on~ or prior to, his normal retirement date, there shall be payable
to the participant's designated beneficiary (or beneficiaries), the monthly retire-
ment income, determined actuarially, beginning on the first day of the month coin-
cident with, or next following~ the date of his death~ which can be provided by
(a) or (b), whichever is greater, where (a) is the single-sum value of his accrued
deferred monthly retirement income commencing at his normal retirement date which
has accrued to the date of his death~ and (b) is 12 times his rate of basic monthly
compensation as of the January lst which is coincident with~ or immediately pre-
cedes, his d~te of death. The amount of such accrued deferred monthly retirement
income shall be computed as for normal retirement under Section ~.2(B)(1).
(2) Except as provided in Section hoS(B)(~) below, the monthly
retirement income payments under this Section ~.5(B) shall be payable for the life
of the beneficiary (or beneficiaries) designated or selected under Section 5.2 to
receive such benefit, and, in the event of such beneficiary's death within a period
of l0 years after the participant's death, the same monthly amount shall be payable
for the remainder cf such 10-year period in the manner and subject to~ the provi-
sions of Section 5.3.
(~) In lieu of the benefits payable in Section 4o5(B)(2)
above, the single-sum value of such benefits may be paid to the participant's de-
signated beneficiary (or beneficiaries) in such other manner and form as the par-
ticipant may elect and the retirement committee may approve~ or~ in the event no
election is made by the participant prior to his death, as the beneficiary (or
beneficiaries) may elect and the retirement committee may approve.
(C) Benefit Payable in Event of Death While in
Service AfterNormal Retirement Date
(1) If the service of a participant is terminated by reason
of his death after his normal retirement date, there shall be payable to the par-
ticipant's designated beneficiary ~or beneficiaries), the monthly retirement income~
determined actuarially~ beginning on the first day of the month coincident ~ith~ or
next following~ the date of his death~ which can be provided bythe sum of (a) the
single-sum value of the normal retirement income (computed as of the participant's
normal retirement date) to which he was entitled on his normal retirement dat~
and (b) the amount of interest on such single-sumvalue in (a) above~ ~ere the
interest shall be compounded annu~lly from the participant's normal retirement date
to the date of his death~ and all computations shall be on the basis of the interest
and mortality assumptions used for the actuarial valuation next precedinghis nor-
mal retirement date.
(2) Except as provided in Section ~.5(C)(3) below~ the monthly
retirement income payments under this Section 4.5(C) shall be payable for the life
of the beneficiary (or beneficiaries) designated or selected under Section 5.2 to
receive such benefit~ and, in the event of such beneficiary's death within a period
of l0 years after the participant's death, the same monthly amount shall be payable
for the remainder of such 10-year period in the manner and subject to the provi-
sions of Section 5.3.
(3) In lieu of the benefits payable in Section ~.5(C)(2)
above, the single-sum value of such benefits may be paid to the participant's de-
signated beneficiary (or beneficiaries) in such other manner and form as the par-
ticipant may elect and the retirement committee may approve, or, in the event no
election is made by the participant prior to his death~ as the beneficiary (or
beneficiaries) may elect and the retirement committee may approve.
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Section 4.6 - OPTIONAL FORMS OF RETIREMENT INCOME
In lieu of the amount and form of retirement income payable in the
event of normal retirement, early retirement or termination of service as specified
in Sections 4.~, 4.9 and 4.5(A) hereof, a participant, or a terminated participant
as defined in Section 4.5(A) hereof, upon written request to the retirement com-
mittee and submission of evidence of good health (except that such evidence will
not be required if such request is made at least three years prior to the d~te
of commencement of retirement income - or by the first d~y of the sixth month
following (a) the effective date of the plan or (b) the date as of which the
formal announcement of the plan is made to the employees of the City, whichever
is later, if on the effective d~te of the plan less than three years remain
prior to the participant's anticipated retirement date) and subject to the
approval of the retirement com~±ttee~ may elect to receive a retirement income
or benefit commencing on the participant's retire~er~t date of equivalent actuarial
value pay~ble in accordance with one of the following options:
Option l: A retirement income of s~ller monthly amount, payable
to the participant for his lifetimej and in the event of his death within a
period of l0 years after the date as of which his payments commenced, the same
monthly amount payable for the remainder of such 10-year period to a beneficiary
designated by him.
Option 2: A retirement income of modified monthly amount, payable
to the participant during the Joint lifetime of the participant and a Joint
pensioner designated by him, and following the death of either of them, R/~ of
such monthly amount payable to the survivor for the lifetime of the survivor.
Option 3: Such other amount and form of retirement payments or
benefits as, in the opinion of the retirement committee, will best meet the
circumstances of the participant.
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The participant upon electing any option of this section will
designate the joint pensioner or beneficiary (or beneficiaries) to receive the
benefit, if any, payable under the plan in the event of his death and will have
the power to change such designation from time to time~ but any such change shall
be deemed a new election and will be subject to approval by the retirement com-
mittee. Such designation will name a joint pensioner or one or more primary
beneficiaries where applicable. If a participant has elected an option with
a joint pensioner or beneficiary (or beneficiaries) and his retirement income
benefits have commenced~ he may thereafter change his designated Joint pensioner
or beneficiary (or beneficiaries) but only if the retirement committee consents
to such change ~nd, in the case where the designation to be changed is one
involving a Joint pensioner, if the Joint pensioner last previously designated
by him is alive when he files with the retirement committee his request for
such change. The consent of a participant's joint pensioner or beneficiary
(or beneficiaries) to any such change shall not be required. The retirement
committee may request such evidence of the good health of the Joint pensioner
that is being removed as it may require, and the amount of retirement income
payable to the particip~ut upon the designation of a new Joint pensioner shall
be actuarially redetermined, taking into account the age and sex of the former
Joint pensioner, the new Joint pensioner and the participant. Each such
designation will be made in writing on a form prepared by the retirement com-
mittee. In the event that no designated beneficiary survives the participant,
such benefits as are payable in the event of the death of the participant
subsequent to his retirement shall be paid as provided in Section ~.2 hereof.
Retirement income payments will be made under the option elected
in accordance with the provisions of this section and will be subject to the
following limitations:
(A) If a participant dies prior to his retirement under the plan,
or if a terminated participant dies prior to the commencement of his payments
at his normal retirement date~ no benefit will be payable under the option to
any person~ but benefits will be payable as provided in Section 4.5 hereof.
(B) If the designated beneficimry (or beneficiaries) or Joint
pensioner dies before the participant's retirement under the plan or subsequent
to a terminated participant's date of termination of service but prior to his
normal retirement date~ the option elected will be cancelled automatically and a
retirement income of the normal form and amount will be payable to the partici-
pant upon his retirement or to the termin~ted participant at his normal retirement
date as if the election had not been made~ unless a new election is made in
accordance with the provisions of this section or unless a new beneficiary (or
beneficiaries) or joint pensioner is designated by the participant prior to his
retirement or by the terminated participant prior to his normal retirement date
and within 90 days after the death of the prior beneficiary (or beneficiaries)
or joint pensioner.
(C) If both the retired participant and the beneficiary (or
beneficiaries) designated by him die before the full payment has been effected
under any option providing for payments for a period certain and life thereafter,
made pursuant to the provisions of Option 3~ the retirement co-~ttee may, in its
discretion~ direct that the commuted value of the remaining payments be paid in
a lump sum and in accordance with Section 5.3 hereof.
Section 4.7 - LUMP-SUM PAYMENT OF SMALL RETIREMENT INCOME
Notwithstanding any provision of the plan to the contrary, if the
monthly retirement income payable to any person entitled to any benefit hereunder
is less than $30 or if the single-sum value of the accrued retirement income is
less than $750 as of the date of retirement or termination of service, whichever
is applicable, the retirement committee may, in the exercise of its discretion,
specify that the actuarial equivalent of such retirement income be paid in a
lump sum or in monthly installments for a period certain of not more than 60
months, such actuarial equivalent to be based upon the mortality and interest
assumptions used as the basis for the last preceding valuation of the plan.
Section 4.8 - LIMITATION ON PAYMENT OF RETIREMENT INCOME
Notwithstanding the fact that the monthly retirement income is
payable for life, if any person receiving a monthly retirement income should
receive or become entitled to receive any compensation for personal services
currently performed under substantially full time continuous employment by
the City of Delray Beach at the regular compensation, the monthly retirement
income shall cease during the period for which such compensation is payable.
Such monthly retirement income shall, however, be resumed again at the same rate
when such compensation thereafter ceases to be payable.
Section ~.9 - TERMINATION OF SERVICE FOR DISHONESTY
If a participant's service is terminated because of dishonest
conduct injurious to the City, or if dishonest conduct injurious to the City
committed by a participant is determined by the City during the lifetime of
the participant but within one year after his service with the City is
terminated or within one year after his retirement under the plan, the retire-
ment committee, upon notice from the City Council of Delray Beach, may terminate
such a participant's interest and benefits under the plan and trust fund.
The dishonest conduct injurious to the City committed by a par-
ticlpant shall be determined and decided by the retirement committee only after
a full investigation of such alleged dishonest conduct and an opportunity has
been given the participant to appear before the retirement committee to present
his case. The decision made by the retirement committee in such cases shall be
final and binding on all participants or other persons affected by such decision.
Section 4.10 - FUNDING OF BENEFITS %~{ROUGH PURCHASE OF LIFE INSURANCE CONTRACT OR CONTRACTS
In lieu of paying benefits from the trust fund to a participant or
his beneficiary, upon direction of the retirement committee with specific prior
authorization by the City Council of Delray Beach, the trustee shall purchase,
with funds in the trust, an individual annuity contract from an insurance
company which, as far as possible, provides benefits equal to (or actuarially
equivalent to) those provided in the plan for such participant or beneficiary,
but provides no optional form of retirement income or benefit which would not
be permitted under Section 4.6 hereof, whereupon the liability of the trust
fund and of the plan will cease and terminate with respect to such benefits that
are purchased and for which the premiums are duly paid. Such individual annuity
contract may be purchased by the trustee on a single-premium basis or on the
basis of annual premiums payable over a period of years, as directed by the
retirement committee and as agreed upon by the insurance company; and' such
individual annuity contract may be purchased, as directed by the retirement
committee, at any time on or after the participant's date of retirement to
provide the benefits due under the plan to the participant or his beneficiary
on or after the date of such purchase.
With specific prior authorization by the City Council of Delray
Beach, the retirement committee may direct the trustee to enter into a contract
or contracts with one or more life insurance companies for the purchase of
retirement annuities, five-year renewable term life insurance, one-year renewable
term life insurance or other form of life insurance or other benefits, on an
individual or group basis, in such manner and in such form as may be deemed
appropriate by the retirement committee, as provided for in the plan; and
specifically, such retirement annuities and other benefits as may be provided
for in the plan may be purchased under one or more deposit administration type
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group annuity contracts; provided, however~ that no such contract may provide for
an optional form of retirement income or benefit which would not be permitted under
Section 4.6 hereof.
Section 4.11 - FORFEITURES
Forfeitures shall not be used to increase the benefits that any employee
would otherwise receive under the plan at any time prior to the termination of the
plan or the complete discontinuance of contributions to the plan but shall be an-
ticipated in determining the costs under the plan.
Section ~.12 - TEMPO~ LR~ITATIONS ON BENEFITS REQUIRED BY
TEE INTERNAL REVENUE SERVICE
This Section ~.12 is applicable only to those of the 25 highest-paid
employees of the City~ determined as of January l, 1965, whose monthly retirement
income upon normal retirement would exceed $125. The term "employee~' as used in
this Section 4.12 shall include all such employees who are participants in the
plan on such date and all such employees ~ho may later become participants in the
plan.
Notwithstanding any provision of the plan to the contrary~ the benefits
in any form attributable to City contributions ~ich any participant to whom this
Section 4.12 is applicable may receive prior to January l, 1975 shall not exceed
an amount which is equal in value to (or which is actuarially equivalent to) the
larger of the following amounts: (a) ~20,000; or (b) an amount equal to 20~ of
the participant's average regular annual compensation received from the City for
the five calendar years ~mmediately preceding the date of such determination~ or
~10, O00~ whichever is the smaller, multiplied by the number of years for which the
current costs of the plan have been met since the effective date of the plan.
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Provided, however~ if~ on January l~ 1~75~ the current costs of the plan
have not been met, the above l~m~tations will continue to apply until the full cur-
rent costs have been funded for the first time.
The foregoing conditions will not restrict the payment of the full bene-
fits to a beneficiary after the death of a participant whose benefits are subject
to the provisions of this Section 4.1R if~ at the time of such death, the plan is
in full effect and the full current costs thereof have been met.
The provisions of this Section ~.12 will not apply to the retirement in-
come payable in the normal form, or under Option l~ Option 2~ or any other optional
form which does not provide a larger monthly income to any participant retirir~ or
receiving benefits during any period in ~nich the plan is in full effect and the
full current costs have been met.
The limitations will not apply to the payment of any survivorship income
with respect to any deceased participant or retired participant who dies prior to
the termination of the plan and while the full current costs have been met.
In the event of the termination of the plan prior to the end of the 10-
year period that next follows the effective date of the plan~ that portion of the
assets of the trust fund arising from contributions made by the City with respect
to those participants to whom the provisions of this Section 4.12 are applicable
which is in excess of the foregoing limitations will be apportioned to the other
participants~ including retired participants~ in accordance with the provisions
contained in Section 7-5 hereof.
ARTICLE V
MISCELLANEOUS PROVISIONS REGARDING PARTICIPANTS
Section 5.1 - PARTICIPANTS TO FURNISH REQUIRED INFORMATION
Each participant will furnish to the retirement committee such
information as the retirement committee considers necessary or desirable for the
purpose of administering the plan and the provisions of the plan respecting
any payments thereunder are conditional upon the participant's furnishing promptly
such true, full and complete information as the retirement committee may request.
Each participant will submit proof of his age (and, in the case of
his election of Option 2 or Option B pursuant to the provisions of Section h.6
hereof, proof of the age of the Joint pensioner selected by him) to the retirement
committee at such time as required by the retirement committee. The retirement
committee will, if such proof of age is not submitted as required, use as con-
clusive evidence thereof, such information as is deemed by it to be reliable, re-
gardless of the source of such information. Any adjustment required by reason of
lack of proof or misstatement of the age of persons entitled to benefits hereunder,
by the participant or otherwise, will be in such manner as the retirement committee
deems equitable.
Any notice or information which, according to the terms of the
plan or the rules of the retirement committee, must be filed with the retirement
committee shall be deemed so filed if ~ddressed and either delivered in person or
mailed to the retirement committee, in care of City of Delray Beach, Delray Beach,
Florida.
Section 5.2 - BENEFICIARIES
Each participant may, on a form provided for that purpose, signed
and filed with the retirement Committee, designate a beneficiary (or beneficiaries)
to receive the benefit, if any, which may be payable, in the event of his death,
pursuant to the provisions of Section ~.2, ~.3, ~.~ or k.5 hereof, and each
designation may be revoked by such participant by signing and filing with the
retirement committee a new designation of beneficiary form. If a deceased parti-
cipant failed to name a beneficiary in the manner above prescribed or if the
beneficiary (or beneficiaries) named by a deceased participant predeceases the
participant, the death benefit, if any, which may be payable under the plan with
respect to such deceased participant may be paid, in the discretion of the retire-
ment committee, either to (a) any one or more of the persons comprising the group
consisting of the participant's spouse, the participant's descendants, the parti-
cipant's parents, or the participant's heirs-at-law, and the retirement committee
may pay the entire benefit to any member of such group or apportion such benefit
among any two or more of them in such shares as the retirement committee, in its
sole discretion, shall determine, or (b) the estate of such deceased participant;
provided, however, that in any of such cases the retirement committee, in its
discretion, may direct that the commuted value of the remaining monthly income
payments be paid in a lump sum. Any payment made to any person pursuant to the
power and discretion conferred upon the retirement committee by the provisions
of this Section 5.2 shall operate as a complete discharge of all obligations under
the plan with respect to such deceased participant and shall not be subject to
review by anyone but shall be final, binding and conclusive on all persons ever
interested hereunder.
Section 5.3 - CONTINGENT BENEFICIARIES
In the event of the death of a beneficiary who survives the parti~
cipant and who, at the beneflciary's death, is receiving benefits under Section
~.2, ~-3, ~.k, h.5 or h.6 hereof within the 10-year (or other) period with respect
to which death benefits are payable under the plan after the participant's death,
5-C
the same amount of monthly retirement income which the beneficiary was receiving
shall be payable for the remainder of such 10-year (or other) period to a person
designated by the participant to receive the remaining death benefits, if any,
payable in the event of such contingency or, if no person was so named, then to
a person designated by the beneficiary of the deceased participant to receive
the remaining death benefits, if any, payable in the event of such contingency;
provided, however, that if no person so designated be living upon the occurrence
of such contingency, then the remaining death benefits, if any, shall be payable
for the remainder of such applicable lO-year (or other) period, in the discretion
of the retirement committee, either to (a) all or any one or more of the persons
comprising the group consisting of the participant's spouse, the beneficiary's
spouse, the participant's descendants, the beneficiary's descendants, the partici-
pant's parents, the beneficiaryts parents, the participant's heirs-at-law, or the
beneficiary's heirs-at-law or (b) the estate of such deceased beneficiary; pro-
vided further, that in any of such cases the retirement committee may, in its
discretion, direct that the commuted value of the monthly retirement income pay-
ments due for the remainder of the applicable lO-year (or other) period be paid
in a lump sum. Any payments made to any person pursuant to the power and dis-
cretion conferred upon the retirement committee by the provisions of this Section
5.3 shall operate as a complete discharge of all obligations under the plan with
respect to such deceased beneficiary and shall not be subject to review by anyone
but shall be final, binding and conclusive on all persons ever interested hereunder
Section 5.~ - PARTICIPANTS' RIGHTS IN TRUST FUND
No participant or other person shall have any interest in or any
right in, to or under the trust fund, or any part of the assets thereof, except
as and to the extent expressly provided in the plan.
Section 5.5 - BENEFITS NOT ASSIGNABLE
No benefits, rights or accounts shall exist under the plan which are
subject in any manner to voluntary or involuntary anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance or charge and any attempt so to anti-
cipate, alienate, transfer, assign, pledge, encumber or charge the same shall be
void; nor shall any such benefit, right or account be in any manner liable for
or subject to the debts, contracts, liabilities, engagements, torts or other
obligations of the person entitled to such benefit, right or account, except as
specifically provided in the plan; nor shall any benefit, right or account under
the plan constitute an asset in case of the bankruptcy, receivership or divorce
of any person entitled under the plan.
If a participant or any other person entitled under the plan becomes
bankrupt or makes an assignment for the benefit of creditors or in any way suffers
a lien or Judgement against his personal assets, or in any way attempts to
anticipate, alienate, sell, assign, pledge, encumber or charge a benefit, right
or account, except as specifically provided in the plan, then such benefit, right
or account in the discretion of the retirement committee may cease and terminate;
and in that event the trustee shall, at the direction of the retirement committee,
hold or apply funds equal in value to such terminated account in the interest of
such participant. This shall include not only distributions directly to the
participant at the retirement committee's discretion but to or £or the benefit of
the participant's spouse, children or other dependents where the retirement
committee determines this to be necessary for the participant to discharge his
duty of support to such persons, the distribution to be in such manner and in
such proportion as the retirement committee shall determine. (See Section 5.6,
Subsections (B), (C) and (D) below for permissable methods of distribution.)
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Section 5.6 - BENEFITS PAYABLE TO MINORS AND INCOMPETENTS
Whenever any person entitled to payments under this plan shall be a
minor or under other legal disability or in the sole Judgment of the retirement
committee shall otherwise be unable to apply such payments to his own best
interest and advantage (~s in the case of illness, whether mental or physical,
or where the person not under legal disability is unable to preserve his estate
for his own best interest), the retirement committee may in the exercise of its
discretion direct all or any portion of such payments to be made in any one or
more of the following ways unless claim shall have been made therefor by an
existing and duly appointed guardian, conservator, committee or other duly
appointed legal representative, in which event payment shall be made to such
representative:
(A) Directly to such person unless such person shall be a
minor or shall have been legally adjudicated incompetent
at the time of the payment;
(B) To the spouse, child, parent or other blood relative to
be expended on behalf of the person entitled or on behalf
of those dependents as to whom the person entitled has the
duty of support;
(C) To a recognized charity to be expended for the benefit
of the person entitled or for the benefit of those de-
pendents as to whom the person has the duty of support; or
(D) By the retirement committee itself receiving and expending
or directing the expenditure of the same for the benefit
of the person entitled or for the benefit of those de-
pendents as to whom the person has the duty of support.
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The decision of the retirement committee will, in each case~ be
final and binding upon all persons and~ except in the case of (D) above, the
retirement committee shall not be obliged to see to the proper application or
expenditure of any payments so made. Any payment made pursuant to the power
herein conferred upon the retirement committee shall operate as a complete
discharge of the obligations of the trustee and of the retirement committee.
Section 5.7 - CONDITIONS OF EMPLOYMENT NOT AFFECTED BY PLAN
The establishment and maintenance of the plan will not be construed
as conferring any legal rights upon any participant to the continuation of his
employment with the City~ nor will the plan interfere with the right of the City
to discipline, lay off or discharge any participant.
Section 5.8 o ABANDONMENT OF BENEFITS
Each participant and other person entitled to benefits hereunder
shall file with the retirement committee from time to time~ in writing, his post
office address and each change of post office address, and any check repre-
senting payment hereunder and any communication addressed to a participant, a
former participant, a beneficiary or a pensioner hereunder at his last address
filed with the retirement committee (or, if no such address has been filed,
then at his last address as indicated on the records of the City) shall be
binding ou such person for all purposes of the plan, and uelther the retirement
committee nor the trustee shall be obliged to search for or ascertain the
location of any such person.
If the retirement committee, for any reason, is in doubt as to
whether retirement income payments are being received by the person entitled
thereto, it shall, by registered mail addressed to the person concerned at his
address last known to the retirement committee, notify such person that:
(A) All unmailed and future retirement income payments shall
be heuceforth withheld until he provides the retirement
committee with evidence of his continued life and his
proper mailiug address; and
(B) His right to any retirement income ~hatsoever shall, at
the option of the retirement committee, be cancelled for-
ever if, at the expiration of three years from the date
of such mailing, he shall not have provided the retire-
ment committee with evidence of his continued life and
his propsr m~iling address.
ARTICLE VI
ADMINISTRATION
Section 6.1 - ADMINISTRATION BY RETIREMENT CO~ITTEE
The plan will be administered by the Retirement Committee (herein
referred to as the "retirement committee") appointed by the City Council of
Delray Beach, consisting of (a) a chairman and at least one but not more than
four additional members, (b) a single individual or (c) a corporate trustee.
Where the retirement committee consists of one or more individuals, each member
may, but need not, be an official or employee of the City, and each such member,
or the corporate trustee selected to act as the retirement committee, shall be
appointed by the City Council of Delray Beach to serve until his (or its) successor
shall be appointed in like m~_nner. Where the retirement committee is a corporate
trustee which at the same time is serving as trustee of the plan, such corporate
trustee shall function separately in its two capacities insofar as the plan and
trust are concerned; as the retirement committee it may deal with itself as
trustee and as trustee it may deal with itself as the retirement committee, and
the records maintained by such corporate trustee for the purposes of the plan
and trust shall show clearly the capacity in which such corporate trustee is
acting in any action taken by it. An individual member of the retirement committee
may resign by delivering his written resignation to the City Council of Delray
Beach and to the other members of the retirement committee. A corporate trustee
serving as the retirement committee may resign from such capacity by delivering
its written resignation to the City Council. The City Council at Delray Beach
may remove an individual member of the retirement committee by so notifying the
member and other retirement committee members, if any, in writing and may remove
a corporate trustee serving as the retirement committee by so notifying such
6-b
corporate trustee in writing. Where the retirement committee consists of one or
more individuals, vacancies on the retirement committee shall be filled by action
of the City Council of Delray Beach.
Section 6.2 - OFFICERS AND EMPLOYEES OF RETIREMENT COMMITTEE
The retirement committee may appoint a secretary who may, but need
not~ be a member of the retirement committee. The City Council shall employ such
agents, clerical and other services~ legal counsel, accountants, and actuaries, as
may be required for the purpose of administering the plan.
Section 6.3 - ACTION BY RETIREMENT COMMITTEE
~.~ere the retirement committee consists of one or more individuals,
a majority of the members of the retirement committee shall constitute a quorum
for the transaction of business and shall have full power to act hereunder, and
any corporate trustee serving as the retirement committee shall have full power to
act hereunder. Any written memorandum signed by the secretary or any member of
the retirement committee of one or more individuals who has been authorized to act
on behalf of the retirement co~mm~ttee shall have the same force and effect as a
formal resolution adopted in open meeting. Minutes of all meetings of the retire-
ment committee and a record of any action taken by the retirement committee shall
be kept in written form, and in the case of a retirement committee of individuals,
such record shall be kept by the secretary appointed by the retirement committee.
The retirement committee shall give to the trustee, any order, direction, consent~
or advice, required under the terms of the trust agreement, and the trustee shall
be entitled to rely on any instrument delivered to it and signed by the secretary
or any authorized member of the retirement committee as evidencing the action of
the retirement committee.
Where the retirement committee consists of one or more individuals~
a member of the retirement committee may not vote or decide upon any matter
6-C
relating solely to himself or vote in any case in which his individual right
or claim to any benefit under the plan is particularly involved. If, in any
case in which an individual retirement committee member is so disqualified to
act, the remaining members cannot agree or if there is only one individual
member of the retirement committee, the City Council of Delray Beach will appoint
a temporary substitute member to exercise all of the powers of a qualified
member concerning the matter in which the disqualified member is not qualified
to act.
Section 6.4 - RULES AND REGULATIONS OF RETIREMENT COMMITTEE
The retirement committee shall have the authority to make such
rules and regulations and to take such action as may be necessary to carry out
the provisions of the plan and will, subject to the provisions of the planj
decide any questions arising in the administration, interpretation and application
of the plan, which decisions shall be conclusive and binding on all parties.
The retirement committee may delegate any part of its authority and duties as
it deems expedient~
Seotion 6~ - P0~ 0F RETIREMENT ¢0MM ~1~
In order to effectuate the purposes of the plan, the retirement
committee shall have the power to' construe the plan, to supply any omissions
therein, to reconcile and correct any errors or inconsistencies, and to make
equitable adjustments for any mistakes or errors made in the administration of
the plan, and all such actions or determinations made by the retirement committee
in good faith shall not be subject to review by anyone.
Section 6.6 - LIABILITY OF RETIREMENT COMMITTEE '
No member of the retirement committee nor any corporate trustee
while acting as the retirement committee shall be liable for any loss unless
resulting from his (or its) own fraud or willful misconductj and where the retire-
ment committee consists of one or more individuals no member shall be personally
6od
liable upon~ or with respect to, any agreemen% act~ transaction or omission exe-
cuted, com~tted, or suffered to be committed by himself as a member of the retire-
ment com~fttee or by any other me~ber~ agent~ representative or employee of the
retirement committee. The retirement committee and any individual member of the
retirement committee and any agent thereof shall be fully protected in relying
upon the advice of the following professional consultants or advisors employed by
the City Council: any attorney insofar as legal matters are concerned~ any ac-
countant insofar as accounting matters are concerned, and any actuary insofar as
actuarial matters are concerned.
Section 6.7 - ACTUARY
The actuary will do such technical and advisory work as the City
Council may request~ including analysis of the experience of the plan from time
to time, the preparation of actuarial tables for the making of computations there-
under, and the submission of an actuarial report as of the anniversary date of the
plan each year to the City and the retirement committee~ which report shall contain
an actuarial valuation showing the financial condition of the plan~ a statement of
the contributions to be made by the City for the ensuing year, and such other in-
formation as may be required by the retirement committee.
The actuary shall be appointed by the City Council to serve as long
as it is agreeable to the City Council and the actuary. In computing benefits to
which a participant may be entitled upon early retirement, upon the exercise of
optional forms of retirement income, or upon termination of the plan, and in all
other instances in which actuarial computations are required~ the actuary shall
use such assumptions of mortality and interest rates as were employed in the most
recent actuarial valuation of the plan, or, at the option of the retirement com-
mittee~ such assumptions as are decided upon jointly by the actuary and the
6-e
retirement committee as being reasonable at the time such calculations are made.
The actuarial assumptions and the computations made therefrom adopted by the re-
tirement committee shall be conclusive and binding on all persons whomsoever.
Neither the retirement committee nor the City shall be liable for any mistakes or
errors in such computations made in good faith, and the trustee shall not be liable
for any such mistakes or errors in any event.
Section 6.8 - APPLICABLE LAW
The plan will be construed and enforced according to the laws of
the State of Florida, and all provisions of the plan will be administered accord-
ing to the la~zs of the said State.
· 7-a
ARTICLE VII
Section 7.1 - TRUSTEE
The term "trustee" means the trustee appointed by the City to
administer the trust fund created for the purposes of the plan or such other
trustee as the City may designate from time to time.
Section 7.2 - P'~rRPOSE OF TRUST FUND
A trust fund will be created and maintained for the purposes of the
plan, and the moneys thereof will be invested in accordance with the terms of the
agreement and declaration of trust which forms a part of the plan. Ail contri-
butions will be paid into the trust fund, and all benefits under the plan will
be paid from the trust fund.
Section 7.3 - BENEFITS SUPPORTED ONLY BY TRUST FUND
Any person having any claim under the plan will look solely to the
assets of the trust fund for satisfaction. In no event will the City or any
of its officials, employees, members of its City Council or agents be liable in
their individual capacities to any person whomsoever, under the provisions of the
plan or of the trust agreement.
Section 7.4 - TRUST FUND APPLICABLE ONLY TO PAYMENT OF BENEFITS
The trust fund will be used and applied only in accordance with the
provisions of the plan, to provide the benefits thereof, and no part of the corpus
or income of the trust fund will be used for, or diverted to, purposes other
than for the exclusive benefit of participants and other persons thereunder
entitled to benefits, except to the extent provided in Section 3.3 and Section
7.5 hereof with respect to expenses of administration and termination of the
plan, respectively.
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Section 7.5 - TERMINATION OF PLAN AND DISTRIBUTION OF TRUST FUND
Upon termination of the plan for any reason, or upon written notice
to the trustee that contributions thereunder are being permanently discontinued,
the trust fund shall be apportioned and distributed in accordance with the follow-
Lug procedure:
(A) The retirement committee, under the direction of the City
Council, shall determine the date of distribution and the asset value to be dis-
buted, after taking into account the expenses of such distribution.
(B) The retirement co,~ttee, under the direction of the City
Council, shall determine the method of distribution of the asset value - that is,
whether distribution shall be by payment in cash, by the maintenance of another or
substituted trust fund, by the purchase of insured annuities, or in kind based on
the then market value - for each class of participants and other persons entitled
to benefits under the plan, as specified in (C) below.
(C) The retirement committee, under the direction of the City
Council, shall apportion the asset value as of the date of termination of the plan
in the manner set forth below, on the basis that the amount required to provide
any given retirement income shall mean the actuarially computed single-sum value
of such retirement income; except that, if the method of distribution determined
under (B) above involves the purchase of an insured annuity, the amount required
to provide the given retirement income shall mean the single premium payable for
such annuity.
(1) An amount equal to each participant's contributions less
the aggregate of any retirement income payments made with respect to such partici-
pant will be determined, and such amount will be apportioned from the asset value.
Such asset value, if insufficient to provide such amount in full, will be appor-
tioned among such participants in proportion to the amount~ d~termined with respect
to them.
(2) If there be any asset value remaining after apportionment
under (1) above, apportionment shall next be made with respect to each retired
participant receiving a retirement income hereunder on such date, each person
receiving a retirement income on such date on account of a deceased participant
or a retired (but since deceased) participant and each participant who has, by
such date, become eligible for normal retirement but has not yet retired in the
amount required to provide such retirement income less any apportionment in (1)
above; provided, however, that if the asset value be less than the aggregate of
such amounts, such amounts shall be proportionately reduced so that the aggregate
of such reduced amounts will be equal to the asset value.
(~) If there be any asset value remaining after the apportion-
ment under (1) and (2) above, apportionment shall next be made with respect to
each participant in the service of the City on such date who has both attained
the age of 55 years and completed at least 15 years of credited service, in the
amount required to provide the actuarially equivalent single-sum value of his
deferred retirement income accured to the date of termination of the plan,
the actuarially equivalent single-sum value of the retirement income which he
would have been entitled to receive had he retired early on the date of termi-
nation of the plan, and each former participant then entitled to a benefit under
the provisions of Section 4.5(A) hereof who has not~ by such date~ reached his
normal retirement date, in the amount required to provide the actuarially
equivalent single-sum value of the accrued deferred retirement income to which
he is entitled under Section 4.5(A) hereof less any apportionment made in (1)
above~ provided, however~ that if such remaining asset value be less than the
aggregate of the amounts thus apportioned hereunder~ such latter amounts shall be
porportionately reduced so t~at the aggregate of such reduced amounts will be
equal to the remaining asset value.
?-d
(4) If there be any asset value remaining after the apportion-
ments under (1), (2) and (3) above, apportionment shall lastly be made with re-
spect to each participant in the service of the City on such date who is not en-
titled to an apportionment under (2) or (3) above, in the amount required to pro-
vide the actuarially equivalent single-sum value of his deferred retirement income
accrued to the date of termination of the plan, less any apportionment made in (1)
above; provided, however, that if such remaining asset value be less than the
aggregate of the amounts apportioned hereunder, such latter amounts shall be pro-
portionately reduced so that the aggregate of such reduced amounts will be equal
to such remaining asset value.
(5) In the event that there be asset value remaining after the
full apportionments specified in (1), (2), (3) and (~) above, such excess shall be
returned to the City.
(D) The retirement committee~ under the direction of the City
Council, shall direct the trustee to distribute, in accordance with the manner of
distribution determined under (B) above, the amounts apportioned under (C) above.
Section 7.6 - BENEFITS 100% VESTED IF PLAN IS TERMINATED OR CONTRIBUTIONS PERMANENTLY DISCONTINUED
In the event that the plan is terminated or contributions to the
trust are permanently discontinued, the benefits of each participant ~n th~ Dian
on such date of termination or discontinuance shall be lO0~ vested to the extent
then funded, where such vested benefits shall be dete~rm~ned and distributed as
provided in Section 7.5 hereof.
PASSED AND ADOPTED THIS 26thDAY OF Octot)er ~ A.D. 19
to be effective January l~ 1965.
CITY OF DELRAY BEACH
MAYOR
ATTEST:
APPROVED AS TO FORM:
CITY ATTORNEY
RETIREMENT TRUST FOR EMPLOYEES OF
CITY OF DELRAY BEACH
TABLE OF CONTENTS
.P, age
ARTICLE I - NAME AND INITIAL CONTRIBUTION
ARTICLE II - CONTRIBUTIONS TO THE TRUST FUND 4-a
ARIICLE III - PAYMENTS FROM THE TRUST FUND 5-a
ARTICLE IV - INVESTMENT OF THE TRUST FUND 6-a
ARTICLE V - POWEBS OF THE TRUSTEE 7-a
ARTICLE VI - ADMINISTRATIVE PROVISIONS 8-a
ARTICLE VII - SUBSTITUTION OF TRUSTEE 9-a
ARTICLE VIII - AMENDMENT AND TERMINATION lO-a
ARTICLE IX - MISCELLANEOUS PROVISIONS ll-a
CITY OF DELRAY BEACH
DELRAY BEACH, FLORIDA
RETIREMENT TRUST FOR EMPLOYEES OF THE CITY OF DELRAY BEACH,
DELRAY BEACH; FLORIDA
THIS AGREEMENT made and entered into at Delray Beach, Florida, on this
j ~'~ day of ~;~,~, I~'~ , by and between City of Delray Beach, Delray Beach,
Florida, as the settlor and the employer (hereinafter referred to as the "city"),
and First National Bank of Delray Beach, Delray Beach, Florida, as trustee (herein-
after referred to as the "trustee"):
WITNESSETH:
WHEREAS, on ~C~-~ ~-~ /~ V there was enacted by the City Council of
Delray Beach, Florida, Resolution No./~ , hereinafter referred to as the
"Resolution"; and
WMEREAS, Resolution No. /.~ provided for the establishment of a retirement
plan for the benefit of the employees of the City of Delray Beach to be known as
City of Delray Beach Retirement Plan; and
WHEREAS, said Resolution No. f~'~'~ authorized the City Council to create a
trust indenture with the First National Bank of Delray Beach as trustee for the pur-
pose of administering and investing the fund accumulated pursuant to the provisions
of said Resolution No. / 5z ~/~ .
WHEREAS, the city desires the trustee to act as trustee of the trust hereby
created and the trustee is willing so to act pursuant to the terms of this agree-
ment;
NOW, THEREFORE, in consideration of the mutual undertakings of the parties
hereto, it is hereby agreed as follows:
ARTICLE I
NAME AND INITIAL CONTRIBUTION
This agreement and the trust hereby established is designated and will be
referred to as P~T~ TRUST FOR EMPLOYEES OF THE CITY OF DELRAY BEACH~ DELRAY
BEACH~ FLORIDA, and the city hereby makes an initial contribution of $100.00~ the
receipt of which is hereby acknowledged by the trustee.
ARTICLE II
CONTRIBUTIONS TO THE TRUST FUND
1. Subject to the provisions of Article VIII hereof, the City,
on behalf of itself ~nd its employees, intends (but is not required), from time
to time, to deliver or cause to be delivered to the trustee such amounts of cash
and other property acceptable to the trustee as the City, in its sole
discretion, deems necessary to com~ly with the provisions of the plan. All such
amounts received by the trustee from the City sh~ll constitute one common
fund and may be commingled. Unless the context clearly implies or indicates the
contrary, the term "trust fUnd" comprises all property of every kind held by the
trustee, from time to time, pursuant to this sgreement. The trustee shall have no
duty, express or implied, to compel any payment to be made to it by the City
or otherwise be responsible for the adequacy of the trust fund to meet and dis-
charge any liabilities under the plan, and shall be accountable only for cash
and other property actually received by it.
2. Any provision of the plan and trust agreement to the contrary not-
withstanding, if the office of the District Director of Internal Revenue, upon
initial application for approval, and after the City has had an opportunity
to mske ~ny changes in the plan and trust agreement which may be suggested by
such office for approval of the plan and trust agreement, rules that the plan and
trust agreement fsdl to qualify as tax exempt, under Sections 401 and 501 of the
Internal Revenue Code of 1954, as amended, then the plan and trust agreement shall
become null and void and ~uy contributions made by the City to the trust
prior to the date of such initial determination as to ~ualification shall be
returned to the City by the trustee.
ARTICLE III
PAYMENTS FROM THE TRUST FUND
1. Payments shall be made from the trust fund by the trustee to such per-
sons, in such manner, at such times, and in such amounts as the retirement
committee, established by the City to administer the plan pursuant to the
provisions thereof, and hereinafter referred to as the "retirement committee,"
may from time to time direct in writing; provided, however, that the trustee may
withhold compliance with the retirement committee's direction to the extent that,
~nd so long as, the trustee shall deem such withholding necessary to insure pay-
ment of the trustee's expenses or to protect the trustee against liability for
taxes or any other liability.
2. The City shall promptly notify the trustee of the names of the
members of the retirement committee as of the date of this agreement and of any
subsequent changes in the retirement committee. In the absence of any notifica-
tion of changes the trustee may assume that the retirement committee is the same
as last reported by the City to the trustee. The retirement co~ttee shall
furnish the trustee with all the necessary factual information required by it to
perform its duties as trustee hereunder, and the trustee shall not be required to
verify the facts so furnished by the retirement committee. The trustee, in follow-
ing the directions of the retirement committee, is authorized to act upon instruc-
tions of the secretary of the retirement co~ttee or of any member of the re-
tirement committee that the retirement committee, by a majority thereof, shall
designate in writing, and shall not be liable for its acts with respect to pay-
ments from the trust ihmd when following such instructions or directions or for
failure to act in the absence of such instructions or directions. The trustee
shall not be liable or responsible for any payment made by it in good faith and
in the exercise of reasonable care without knowledge of the changed conditions
or status of the payee.
6-a
ARTICLE IV
INVESTMENT OF THE TRUST FUND
1. The trust fund, except such estimated amounts as in the opinion of the
trustee are required by current payments and expenses, shall be invested and re-
invested by the trustee without distinction between principal and income. Sub-
Ject to the provisions of this Article IV and Paragraphs i and 2 of Article V, the
trustee is authorized to invest and reinvest the trust fund in such bonds, notes,
debentures, mortgages, equipment trust certificates, investment trust certificates,
preferred or common stock, or in such other property, real, personal, or mixed,
either within or without the State of Florida, as it may deem advisable, without
being limited by any statute or rule of law regarding investments by trustees. The
trustee may, to the extent it deems advisable, invest in any common trust fund that
is qualified under Section ~Ol(a) of the Internal Revenue Code, which is maintained
by the trustee or by any bank in Florida or in any other state of the United States.
The trustee may hold any portion of the trust fund in cash pending investment or
payment of expenses or benefits without liability for interest. In purchasing in-
vestments, the trustee shall endeavor to exercise the Judgment and care in the cir-
cumstances then prevailing which men of prudence, discretion and intelligence exer-
cise in the management of their own affairs, not in regard to speculation but in re-
gard to the permanent disposition of their funds, considering the probable income as
well as the probable safety of their capital. The trustee shall not be liable for
the making, retaining or selling of any investment or reinvestment made by it as
herein provided, or for any loss to or diminution of the trust fund, except such as
may be due to its own negligence, willful misconduct, or lack of good faith.
6-b
2. With specific prior authorization by the City Council of Delray Beach,
the retirement co~ttee may direct the trustee to enter into a contract or
contracts with one or more life insurance companies for the purchase of
retirement annuities, five-year renewable term life insurance, one-year
renewable term life insurance or other form of life insurance or other benefits,
on au individual or group basis, in such manner and in such form as may be
deemed appropriate by the retirement committee~ as provided for in the plan,
and specifically, such retirement annuities and other benefits as may be pro-
vided for in the plan may be purchased under one or more deposit aSm~nistration
type group annuity contracts, and the trustee shall not be liable for its acts
in following such directions. Except to the extent that the trustee from
time to time receives directions under this section from the retirement com-
mittee, the trustee shall be authorized to administer the trust without regard
to this section.
7-a
ARTICLE V
POWERS OF THE TRUSTEE
1. Subject to the provisions of Article IV, the trustee is authorized
and empowered:
(a) To sell, exchange, convey, transfer or dispose of and also to
grant options with respect to any property, whether real or personal, at any
time held by it, and any sale may be made by private contract or by public
auction, and no person dealing with the trustee shall be bound to see to the
application of the purchase money or to inquire into the validity, expediency
or propriety of any such sale or other disposition;
(b) To retain, m.nage, operate, repair and improve and to mortgage
or lease for any period and on such terms as the trustee shall deem proper any
real estate or personal property held by the trustee, including power to de-
molish any buildings or other improvements in whole or in part and to erect
buildings or other improvements and to m-ke leases that may extend beyond the
term of the trust; and to foreclose, extend, renew, assign, release or
partially release and discharge mortgages or other liens;
(c) To compromise~ compound and settle any debt or obligation due
from third persons to it or to third persons from it as trustee hereunder,
and to reduce the rate of interest on, to extend or otherwise to modify or
to foreclose upon default or otherwise to enforce such obligation;
(d) To vote in person or by proxy, with or without power of substi-
tution, on any stocks, bonds or other securities held by it; to exercise any
options appurtenant to any stocks, bonds or other securities for the conver-
sion thereof into other stocks, bonds or securities, or to exercise any rights
to subscribe for additional stocks, bonds or other securities and to -~ke any
and all necessary payments thereof; to join in, dissent from or oppose the
reorganization, recapitalization, consolidation, sale or merger of corpora-
tions or properties in which it may be interested as trustee, upon such terms
and conditions as it may deem wise and to accept any securities which m~y be
issued upon any such reorganization, recapitalization, consolidation, sale or
merger and thereafter to hold the same;
(e) To m-ke, execute, acknowledge and deliver any and all deeds,
leases, assignments, documents of transfer and conveyance, documents of re-
lease and satisfaction and any and all other instruments that may be neces-
sary or appropriate to carry out the powers herein granted;
(f) To enforce any right, obligation or claim in its discretion
and in general to protect in any way the interest of the trust fund, either
before or after default; and in case it shall consider such action for the
best interest of the trust fund, to abstain from the enforcement of any
right, obligation or claim, to abandon any property, whether real or personal,
which at any time may be held by it;
7-b
(g) To borrow from anyone, including the trustee, such sum or sums,
from time to time, as the trustee considers necessary or desirable and for the
best interest of the trust fund and for that purpose to mortgage or pledge all
or any part of the trust fund;
(h) To cause any investment in the trust fund to be registered in or
transferred into, its name as trustee, or the name or names of its nominee or
nominees, or to retain them unregistered or in form permitting transferability
by delivery, but the books and records of the trustee shall at all times show
that all such investments are part of the trust fund;
(i) To retain in cash or other property unproductive of income such
portion of the trust fund as deemed advisable, without liability therefor;
(J) If a bank, to deposit in its commercial banking department that
portion of the trust fund as deemed advisable, without liability for the pay-
ment of any interest thereon;
(k) To acquire property returning no income or slight income, or
to retain any such property so long as the trustee shall deem advisable;
(1) To purchase, convey, lease and otherwise deal with oil, gas
and other minerals, mineral rights and royalties; to operate and develop oil
gas and other mineral properties and interests, including, but not limited to,
the power to ~meke and release oil, gas and mineral leases and subleases; to
m~ke mineral deeds and royalty transfers; to create, reserve and dispose of
overriding royalties, oil payments, gas payments, and any other interests; to
execute division orders and transfer orders; to enter into development and
drilling contracts, operating agreements and unitization agreements; and to
m-ke agreements for present or future pooling of any and all interests in
oil, gas and other minerals;
(m) To consult with counsel, who may be counsel to the City,
and in so doing shall be fully protected in acting upon the advice of such
c ouns el;
(n) To continue to exercise any powers and discretion herein granted
for a reasonable time after the termination of the trust;
(o) To utilize, if an individual or individuals, the facilities of
any bank, as a depository;
(p) To perform all acts which it may deem necessary or proper and to
exercise any and all powers of the trustee under this agreement upon such terms
and conditions as it may deem for the best interest of the trust fund.
2. In addition to the powers and authorities herein elsewhere granted, ex-
cept as herein expressly provided otherwise, the trustee shall have the
powers, authorities and discretions set forth in the laws of the State of
Florida insofar as applicable hereto. The powers and authorities granted
7-C
to the trustee shall not be limited by the fact that such trustee may
be a bank or other financial institution, and no trustee duly appointed,
qualified and acting hereunder shall be subject to limitations or restrictions
imposed upon a bank or other financial institution or upon fiduciaries
generally with respect to the type of investment any such institution or trustee
may make of its own funds or the funds of others. Specifically such trustee may
retain, acquire or otherwise deal in stock for which it is registrar, transfer
agent, and the like~ may deposit trust funds with itself as a bank, may con-
tract or otherwise enter into transactions between itself as trustee and as a
bank or between itself as trustee and any other institution for which it then,
theretofore or thereafter may be acting as trustee, subject to the laws of the
State of Florida.
3. Whenever and as often as the trustee deems such action desirable,
it may by written instrument appoint any person or corporation in any state
of the United States to act as ancillary trustee with respect to any portion
of the trust assets then held or about to be acquired on behalf of the trustee.
Each such ancillary trustee shall have such rights, powers, duties and dis-
cretions as are delegated to it by the trustee, but shall exercise the same
subject to such limitations or further directions of the trustee as shall be
specified in the instrument evidencing its appointment. The ancillary
trustee may resign or may be removed by the trustee, as to all or any portion
of the assets so held at any time or from time to time, by written instru-
ment delivered one to the other, and the trustee may thereupon appoint another
ancillary trustee or successor to whom the assets shall be transferred, or
may itself receive such assets in termination of the ancillary trusteeship
to that extent. Such ancillary trustee shall be accountable solely to the
trustee and shall be entitled to reasonable compensation.
ARTICLE VI
ADMINISTRATIVE PROVISIONS
1. The trustee shall maintain true and accurate records and accounts re-
flecting all receipts and disbursements made by it pursuant to this agreement
and containing a description of all assets from time to time held by it here-
under. Such records and accounts shall be open to the inspection of the retire-
ment committee and the City at all reasonable times and may be audited
from time to time by such person or persons as the retirement co-~ttee or the
City may designate. Within 60 days after the end of each fiscal year,
and at such other times as the City may request in writing filed with the
trustee, the trustee shall deliver to the City a report and account in
writing, a copy of which shall also be delivered to the retirement co,~ttee,
covering the period from the last previous report and account, in such form and
detail as the City may request, and the approval of any such report and
account by the City Council of Delray Beach shall be a full acquittance
and discharge of the trustee with respect to the matters therein set forth. Upon
the expiration of 90 days from the date of filing such annual or other report and
account, or upon the earlier specific approval thereof as provided above, the
trustee shall be forever released and discharged from all liability and account-
ability, except for actual fraud, to anyone with respect to the propriety of its
acts and transactions shown in such report and account except with respect to
any such acts or transactions as to which the City shall within such 90-
day period file written objections with the trustee. Nothing herein contained,
however, shall be deemed to preclude the trustee from its right to have its
accounts Judicially settled by a court of competent jurisdiction, in which event
only the trustee and the City shall be necessary parties.
8-b
2. The trustee, subject to the approval of the City Council, may employ
such agents~ attorneys (who may be counsel for the City)~ auditors, clerical and
other assistants, which are in addition to its regular staff of employees, as, in
its Judgment, may be necessary or desirable for the proper a~m~nistration of the
trust fund and to advise the trustee hereunder, and pay them a reasonable compensa-
tion from the trust fund~ and may delegate to any person so employed any ministerial
power or duty of the trustee.
3. The trustee, subject to the approval of the City Council, may institute,
maintain or defend any litigation necessary in connection with the a~m~nistration of
the trust fund, provided the trustee shall be under no duty or obligation to do so
unless it shall have been indemnified to its satisfaction against all expenses and
liabilities which it may sustain or reasonably anticipate by reason thereof~ and un-
less the trustee sh~ll be paid a reasonable compensation for its own e~traordinary
services in connection therewith.
4. The trustee shall be reimbursed for all of its expenses incurred with
prior City Council approval and shall be paid such reasonable compensation as may be
agreed upon from time to time by the City and the trustee. Such expenses and com-
pensation shall be paid from the trust fund if not paid by the City.
5. No person shall be obliged to see to the application of any money or
property delivered to the trustee, nor shall any such person be required to
take cognizance of the provisions of this agreement. The certificate of the
trustee, duly executed, may be received by any person dealing with the trustee
as conclusive evidence of any matter relating to this agreement or the adminis-
tration thereof. In general, each person dealing with the trustee may act upon
any advice, requeat or representation in writing by the trustee, or the trustee's
duly authorized agent, and shall not be liable to any person in so doing. In
case of doubt as to whether the trustee has or has not been granted a specific
power not enumerated hereunder, the certificate of the trustee that the exercise
of such power is necessary or desirable for the proper m~m~nistration or distri-
bution of the trust fund shall be conclusive upon all persons dealing with the
trustee to the same extent as if such power had been specifically granted to the
trustee.
6. If the assets held by the trustee hereunder~ or any benefits payable
by the trustee hereunder, shell become liable for the p~yment of any estate~
inheritance, income or other tax~ charge or assessment, which, in the trustee~s
opinion~ it shall be or m~y be required to pay, the trustee shall have full
power and authority to pay such tax, charge or assessment out of any moneys or
other property in its hands for the account of the person whose interests here-
under are liable for such tax~ but at least l0 days prior to making any such
payment the trustee shall mail a notice to the retirement committee of its
intention to make such payment. The trustee, also, prior to making ~uy payment
to any beneficiary hereunder, may require such releases or other documents
from any lawful taxing authority and may require such indemnity from such bene-
ficiary as it shall deem necessary for its protection.
7. The trustee may require any certificate~ notice or other instrument
or information believed by it to be necessary to perform its duties hereunder,
and may rely and act upon the basis of any such certificate, notice, instrument
or other information ~urnished to the trustee which it believes to be reliable
and to have been signed, made or presented by the proper p~rty or parties, ex-
cept that any action herein permitted or required to be taken by the City
shall be by resolution of its City Council or by a person authorized by resoluo
~ion of its Oity Council to take such action.
8. The trustee shall not be liable for its action in making payment or
delivery of any cash or other property to any person at the direction of the
retirement committee, and, in the event of litigation, actual or threatened, the
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trustee shall not be liable for declining to make delivery thereof until final
adjudication shall have been made by a court of competent Jurisdiction or by
agreement of the parties. All costs and expenses of such litigation shall be
paid bythe City.
9. The trustee shall not be responsible for any acts or omissions of the
retirement committee. The trustee shall be under no duty to inquire into any
rule, regulations, instruction~ direction or order purporting to have been issued
by the retirement committee and to be duly signed by the secretary of the retire-
ment committee, or by a member of the retirement committee designated by the
majority of the retirement committee as authorized to instruct the trustee; and
any certificate duly signed by the secretary or such member of the retirement
committee~ purporting to evidence any such instruction~ direction or order~
shall be accepted by the trustee as conclusive proof thereof. The trustee shall
also be fully protected in acting in good faith upon any notice, resolution,
instruction~ direction, order: certificate, opinion, letter, telegram or other
document believed by the trustee to be genuine and to be the act of the retire-
ment committee.
10. The City intends that the trust herein established for the purpose
of implementing the plan shall qualify under Sections 401 and 501 of the Internal
Revenue Code of 195~, as amended; and until advised to the contrary in writing~
the trustee may assume that the trust is so qualified and is entitled to the ex-
emption from taxes provided for in said sections. In the event the trustee at
any time bonafide believes such exemption to be uncertain, the trustee may~ but
is not re~ired to~ take such steps and withhold such payments as it deems neces-
sary to protect itself.
ll. No bond shall ever be required of any trustee, successor trustee or
ancillary trustee duly appointed and acting hereunder, except such bond as may
be required by any applicable law or statute of the United States or of any state
having appropriate jurisdiction~ which required bond may not ~uder such law or
statute be waived by the parties to this agreement.
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ARTICLE VII
SUBSTITUTICN OF TRUSTEE
1. There shall be one or more individual trustees or one corporate
trustee, as determined from time to time by the City Council of Delray
Beach. When there are individual trustees, action by the individual
trustees shall be determined by the majority of the individual trustees. Such
action shall be binding upon all parties at interest. The individual trustees
may act by vote at a meeting or by writing without a meeting. Any act of the
individual trustee or trustees shall be sufficiently evidenced if certified to
by an individual trustee, and, if there is more than one individual trustee,
one of the individual trustees may be given authority to perform all a~m~nistra-
rive and ministerial duties. Each individual trustee shall serve until a suc-
cessor trustee shall be named by the City Council of Delray Beach or until
his resignation, death, incapacity or removal, in which event such City
Council shall name a successor individual trustee. An individual trustee
otherwise eligible to participate in the plan and trust shall not be excluded
on the ground that he is an individual trustee. The word "trustee" as used
herein shall include the original and any successor trustee or trustees, whether
corporate or individual.
2. The trustee may resign at any time upon giving 30 days' prior written
notice to the City, or ~ith the consent of the City Council of Delray Beach,
the trustee may resign with less than 30 days' prior written notice.
3. The City Council of Delray Beach may remove the trustee by giving at
least 30 days' prior written notice to such trustee.
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4. Upon such removal or resignation of the trustee~ the City Council
of Delray Beach shall appoint and designate a successor trustee which shall be
one or more individual successor trustees~ or a bank or trust company organized
under the laws of the United States or of any state thereof~ with authority to
accept and execute trusts.
5. Title to all property and records or true copies of such records
necessary to the current operation of the trust fund held by the trustee here-
under shall vest in any successor trustee acting pursu~ut to the provisions
hereof~ without the execution or filing of any Further instrument. A~y resign-
ing or removed trustee shall execute all instruments and do all acts necessary
to vest such title in ~ny successor trustee of record. Each successor trustee
shall have~ exercise and enjoy all the powers~ both discretionary and minister~
ial~ herein conferred upon his predecessor. No successor trustee shall be
obliged to ex~ue the accounts~ records and acts of any previous trustee or
trustees~ and each successor trustee in no w~y or ~er shall be responsible
for any action or omission to act on the part of any previous trustee.
6. Any corporation resulting from any merger or consolidation to which
the trustee may be a party~ or succeeding to the trust business of the trustee~
or to which substantially all the trust assets of the trustee may be transferred,
shall be the successor to the trustee hereunder without any further act or
formality wi~h like effect as if such successor trustee had originally been
named trustee herein; and in any such event it shall not be necessary for the
trustee or any successor trustee to give notice thereof to ~uy person~ and any
requirement~ statutory or otherwise, that notice shall be given is hereby
waived.
ARTICLE VIII
AMENDMENT AND TERMINATION
1. This agreement ma~ be amended by the City from time to time in
any respect whatever by delivery to the trustee of a copy of the resolution of
the City Council of Delray Beach specifying such amendment and duly certified
by an official of the City, subject to the following limitations:
(a) Under no condition shall such amendment or amendments result in
or permit the return or repayment to the City of any property held or
acquired by the trustee hereunder, or the proceeds thereof, or result in or
permit the distribution of any such property for the benefit of anyone other
than employees of the City who are beneficiaries under the plan, except
to the extent provided for by Paragraph 3 of Article IX.
(b) Such amendment or amendments shall not increase the duties or
responsibilities of the trustee hereunder without its written consent.
R. This agreement and trust may be terminated at any time by the
City by delivery to the trustee in writing of a resolution of the City Council
of Delray Beach, duly certified by an official of the City, specifying that (a)
the trust is being terminated or (b) contributions thereunder are being disconti-
nued. This agreement and trust shall automatically terminate when no cash or
other property remains in the trust.
3. In the event of termination of the plan, the trustee shall distribute
all cash, securities and other property then constituting the trust fund, less
any amounts constituting charges against the trust fund, in such manner and at
such time as may be directed by the retirement co~ttee.
lO-b
4. Nothing in this agreement and trust shall be construed to prevent the
City from suspending contributions to the trust for any period whatsoever
or per~nently, but such a suspension, whether temporary or permanent, shall not
of itself terminate the trust.
5. Unless previously terminated, this trust shall terminate and cease
to exist 21 years after the death of the last survivor of the original partici-
pants remaining in the service of the City, or receiving benefits here-
under, at which time the trustee shall forthwith wind up the affairs of the
trust and distribute to the then participants the entire trust fund according
to their beneficial interests therein and to the extent of benefits then paid
for, subject to the provisions of Paragraph (C)(4) of Section 7.5 of the plan;
provided, however, that if at that time this trust may be continued in force
without violation of the rule against perpetuities or any other law of the State
of Florida, then this trust shall remain in effect until otherwise terminated
as herein provided.
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ARTICLE IX
MISCELLANEOUS PROVISIONS
1. The City assumes no obligation or responsibility for any act or omission
of the trustee hereunder. The trustee assumes no obligation or responsibility with
respect to any action on the part of the City or the retirement co~ttee required
by this agreement or by the plan. No personal liability whatever shall attach to or
be incurred by any official or employee, as such, of the City, under or by reason of
the terms or conditions contained in or implied from this agreement. The duties,
obligations and rights of the trustee shall be limited to and by the provisions of
this agreement, notwithstanding any reference herein to the plan; provided, however,
the City agrees to deliver to the trustee a copy of each amendment to the plan with-
in 30 days of the date of such amendment duly certified by an official of the City.
2. No benefits or beneficial interests provided for hereunder or under the
plan s~ll be subject in any manner to anticipation, alienation, sale, transfer,
signment, pledge, encumbrance, or charge, either voluntary or involuntary, and any
attempt to so anticipate, alienate, sell, transfer, assign, pledge, encumber or
charge the same shall be null and void; neither shall such benefits or beneficial
interests be liable for or subject to the debts, contracts, liabilities, engagements
or torts of any person to whom such benefits or funds are payable.
3. The City shall have no beneficial interest in the trust fund or any
part thereof, and no part of the trust fund shall ever revert or be repaid to the
City, either directly or indirectly, except for such part of the trust fund, if any,
which remains in the trust after satisfaction of all liabilities to persons entitled
to benefits under the plan, and except as provided in Paragraph 2 of Article II
hereof.
ll-b
4. The laws of the State of Florida shall govern, control and
determine all questions arising with respect to the trust fund and interpreta-
tion and validity of the provisions of this agreement. In the event any
provision or provisions of this agreement shall be held illegal or invalid for
any reason, said illegality or invalidity shall not affect the remaining pro-
visions of this agreement, but shall be fully severable and the agreement shall
be construed and enforced as if said illegal or invalid provision or provisions
had never been inserted herein.
5. Words and phrases are used interchangeably in the plan and this agree-
ment and a word, term or phrase defined in either is similarly defined for the
purposes of the other. The terms "agreement," "herein," "hereunder" and similar
terms refer to this trust agreement, including the plan which is made a part
hereof, unless otherwise qualified by the context.
6. This agreement shall be binding upon persons who are entitled to any
benefits hereunder, their heirs and legal representatives, and upon the
City, the trustee and their respective successors and assigns.
7. This agreement may be executed in any number of counterparts, each of
which shall be an original, and all of which together shall constitute one and
the same instrument. A copy hereof, conformed with the signatures of the
parties hereto and certified by the trustee - or a copy hereof, with facsimile
signatures of the parties hereto - m~y be used for any purpose without pro-
duction of an original counterpart.
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IN WITNESS %~tEREOF, CITY OF DELRAY BEACH, Delray Beach, Florida and FIRST
NATIONAL BANK OF DELRAY BEACH have caused these presents to be executed by their
duly authorized officials, on the day and year first above written.
(cn
ATTEST: CITY OF DELRAY BEACH,
~/~~ ~/~7~: : AS SETTLOR AND EMPLOYER
ATTEST: FIRST NATIONAL BANK OF DELRAY BEACH,
AS TRUSTEE
~ Cas~hier ~' Vfce- P~,\esiden~ and-- TrUSt O~icer
(CORPORATE SEAL)
APPROVED AS TO FORM:
City Attorney
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ACKNOWLE~MENT
THE STATE OF FLORIDA )
)
COUNTY OF PALM BEACH )
BEFORE ME, the undersigned, a Notary Public in and for said County and State,
on this day personally appeared Al. C. Avery , Mayor of the CITY OF
DELRAY BEACH, known to me to be the person and official whose name is subscribed to
the foregoing instrument and acknowledged to me that the same was the act of the
said City of Delray Beach, and that he executed the same as the act of such City
for the purposes and consideration therein expressed, and in the capacity therein
stated.
GIVEN UNDER M~ HAND AND SEAL OF OFFICE this the 27t~h day of October ,
196~ .
Notary Public, State of Florid~ at large.
Notary Pub'ic, St.~te o, Flo, ~_~ ot L?.r~e
My Commsso~ gxprcs SeDt, 15, 1]fS
TH . STAT FT,O nA )
)
COUNTY OF PALM BEACH )
BEFORE ME,~the undersigned, a Notary Public in and for said County and State,
on this day personally appeared ~\~ ~k~ {~ k~_~,J~~) .~, , Vice-President and
Trust Officer of FIRST NATIONAL BANK OF DELRAY BEACH, Delray Beach, Florida, known
to me to be the person and officer whose name is subscribed to the foregoing
instrument and acknowledged to me that the same was the act of the said First
National Bank of Delray Beach~ Delray Beach, Florida, a national banking corporation,
and that he executed the same as the act of such corporation for the purposes and
consideration therein expressed, and in the capacity therein stated.
GIVEN UNDER M~ HAND AND SEAL OF OFFICE, this the I~ day of .~,-~...,~, ~ ,
.. ~otp~y Public, State of Florida a~t~ large
NOt,l,l~ ~2~!;t, ~tlt~ et rio.ad ~ Lr.~
MY comm~ o,Aon expires. ~A¥ (~m.~i~ £~p~e, ~A,y % 19M