AGENDA MEMORANDUM

 

 

Meeting Date:           November 24, 2008

 

From:                          Edward F. Smyth, Jr., Deputy City Manager

 

Subject:                      Ordinance Amending The City Of Leesburg Municipal Firemen's Retirement Plan; Amending Section 1.1, Definitions; Section 1.5, Buy-Back of Prior Service; Section 2.4, Disability Retirement and retirement income; Section 2.5, Benefit Other than on Retirement; Section 3.1, Optional Forms of Retirement Income; Section 3.2, Lump Sum Payment of Small Retirement Income; Section 4.2, Beneficiaries; Section 4.3, Contingent Beneficiaries; Section 4.5 Benefits not Assignable; Section 6.3, Authority, Duties and Responsibilities of the Retirement Committee;  and Section 6.4, Applicable Law

 

 

Staff Recommendation:

Staff recommends adopting Amendment Three to the Municipal Firemen’s Retirement plan as presented.

Analysis:

Section 175.351, Florida Statutes provides that in order for the City of Leesburg to participate in the distribution of the tax fund established pursuant to Section 175.101, the Municipal Firemen’s Retirement Plan must meet the minimum benefits and standards set forth in Chapter 175. 

The plan’s attorney, James B. Loper, performed a review of the plan and has advised that the amendments contained in Amendment Three are required for the plan to be in compliance with the minimum benefits and standards in the Florida Statutes.  The Board of Trustees / Retirement Committee reviewed Amendment Three and unanimously voted to recommend its passage by City Commission.

For calendar year 2007 collections, the City of Leesburg received $177,356.72 in state premium tax monies, of which $110,449 will be used to reduce the City's contributions to the plan.  The excess must be used for extra benefits for firefighters, in addition to those benefits in existence for firefighters on March 12, 1999.

Options:

1.  Adopt the Amendment as presented; or

2.  Such alternative action as the Commission may deem appropriate


Fiscal Impact

The City received $177,356.72 from the calendar year 2007 collections, of which $110, 449.00 will be used to offset the City’s contribution to this plan.  The excess must be used for extra benefits for firefighters, in addition to those benefits in existence on March 12, 1999.

Amendment Three will have no impact on the assumptions used in determining the funding requirements of the Municipal Firemen's Retirement Plan.  Amendment Three does not result in a change in the actuarial valuation results.  See letter dated September 12, 2008 from Patrick T. Donlan, Foster & Foster, Inc., Actuarial Consultants for Public Pension Plans.

 

Submission Date and Time:    12/4/2008 4:21 PM____

 

Department: Administration

Prepared by:  EF Smyth, DCM                     

Attachments:         Yes  X    No ______

Advertised:   ____Not Required ______                     

Dates:   __________________________                     

 

Attorney Review :       Yes X   No ____

_________________________________           

Revised 6/10/04

 

Reviewed by: Dept. Head ________

 

Finance  Dept. ___________JB_____                                     

                              

Deputy C.M. _______EFS_________                                                                         

 

Submitted by:

City Manager ___________________

 

Account No. _________________

 

Project No. ___________________

 

WF No. ______________________

 

Budget  ______________________

 

Available _____________________

 


ORDINANCE NO 08-______

 

AN ORDINANCE OF THE CITY OF LEESBURG, FLORIDA, AMENDING THE CITY OF LEESBURG MUNICIPAL FIREMEN'S RETIREMENT PLAN BY AMENDING SECTION 1.1 DEFINITIONS; SECTION 1.5, BUY-BACK OF PRIOR SERVICE; SECTION 2.4, DISABILITY RETIREMENT AND RETIREMENT INCOME; SECTION 2.5, BENEFIT OTHER THAN ON RETIREMENT; SECTION 3.1, OPTIONAL FORMS OF RETIREMENT INCOME; SECTION 3.2, LUMP SUM PAYMENT OF SMALL RETIREMENT INCOME; SECTION 4.2, BENEFICIARIES; SECTION 4.3, CONTINGENT BENEFICIARIES; SECTION 4.5 BENEFITS NOT ASSIGNABLE; SECTION 6.3, AUTHORITY, DUTIES AND RESPONSIBILITIES OF THE RETIREMENT COMMITTEE;  AND SECTION 6.4, APPLICABLE LAW; AND PROVIDING FOR AN EFFECTIVE DATE.

 

WHEREAS, by Leesburg City Ordinance 00-47 effective April 1, 2000, the Leesburg City Commission adopted the amended and restated City of Leesburg Municipal Firemen's Retirement Plan effective April 1, 2000; and

 

WHEREAS, by Leesburg City Ordinance 04-55 dated August 9, 2004, but retroactive to October 1, 2003, the Leesburg City Commission adopted Amendment One amending Section 2.2(D), "Supplemental Retirement Income" of the City of Leesburg Municipal Firemen's Retirement Plan; and

 

WHEREAS, by Leesburg City Ordinance 08-10 effective  October 1, 2009, the Leesburg City Commission adopted Amendment Two amending Section 1.2 "Participation" of the City of Leesburg Municipal Firemen's Retirement Plan; and

 

WHEREAS, the City Commission of the City of Leesburg has the power by virtue of Section 3.5 of said amended and restated Retirement Plan to amend the City of Leesburg Municipal Firemen's Retirement Plan; and

 

WHEREAS, the Retirement Committee of the City of Leesburg Municipal Firemen's Retirement Plan, in consultation with the Retirement Committee's attorney has recommended the amendment of the Plan as set forth in the attached Amendment Three; and

 

WHEREAS, the Leesburg City Commission has considered the changes set forth in the attached Amendment Three, and desires to hereby adopt and establish same in force and effect in the City of Leesburg, Florida;

 

NOW, THEREFORE, BE IT ENACTED BY THE PEOPLE OF THE CITY OF LEESBURG, FLORIDA:

 


SECTION I.

The City of Leesburg Municipal Firemen's Retirement Plan as amended and restated, effective April 1, 2000, as further amended effective October 1, 2008, is hereby amended as set forth in the attached Amendment Three which is attached to this Ordinance and by this reference incorporated herein and made a part hereof, and said Amendment Three is hereby approved and adopted.

SECTION II

The provisions of said Amendment Three to the City of Leesburg Municipal Firemen's Retirement Plan shall be effective October 1, 2008.

SECTION III

The Mayor-Commissioner and City Clerk of the City of Leesburg are hereby authorized and directed to execute said Amendment Three attached to this Ordinance for and on behalf of the City of Leesburg.

SECTION IV

The provisions of this Ordinance are severable and if any section, sentence, clause, or phrase hereof is for any reason held to be unconstitutional, invalid or ineffective, such holding shall not affect the validity of the remaining portions of this Ordinance, it being expressly declared to be the City Commission's intent that it would have passed the valid portions of this Ordinance without the inclusion therein of any invalid portion or portions.

SECTION V

All ordinances or parts of ordinances which are in conflict with this Ordinance are hereby repealed.

SECTION VI

This Ordinance shall become effective upon its passage and adoption according to law.

PASSED ON THE SECOND READING AND ADOPTED at the regular meeting of the City Commission of the City of Leesburg, Florida held on the ____ day of _________________, 2008.

THE CITY OF LEESBURG, FLORIDA

BY:     

 

 

                                                           

Mayor

 

ATTEST:       

 

 

                                                            _____

                        City Clerk


AMENDMENT THREE

CITY OF LEESBURG MUNICIPAL FIREMEN'S RETIREMENT PLAN

            The City of Leesburg Municipal Firemen's Retirement Plan as amended and restated, effective April 1, 2000, as further amended effective October 1, 2003, as further amended effective January 28, 2008, is hereby amended as follows:

 

1.                  By amending Section 1.1 – DEFINITIONS to read as follows:

 

(8)       Beneficiary:

If a Participant is married then his spouse shall be his Beneficiary for any death benefit payable under the Plan.  The Participant may designate someone other than his spouse as his beneficiary providing the spouse has consented in writing and such consent is witnessed by the Retirement Committee or a notary public to waive his or her rights to any death benefit payable under the plan.  Also the spouse must acknowledge on the consent form who the non-spouse designated Beneficiary is and the relationship to the Participant.  Notwithstanding this consent requirement, if the Participant establishes to the satisfaction of the Retirement Committee that such written consent may not be obtained because there is no spouse or the spouse cannot be located, a waiver will be deemed a qualified election.

 

If a Participant is not married then he may designate the Beneficiary of his choice.

 

Beneficiary means the person or persons, or a trust, entitled to receive benefits hereunder at the death of a Participant who has or have been designated in writing by the Participant and filed with the Retirement Committee.  If no such designation is in effect, or if no person so designated is living, at the time of death of the Participant, the Beneficiary shall be the estate of the Participant.

 

(10) Credited Service:

The total period of an Employee's Service computed in years and completed calendar months, from his last date of employment until his Normal Retirement Date or, if earlier, his date of actual retirement or Termination of Service, except as provided in Section 2.4 and the following paragraph.

 

The period of any absence of 31 days or more will be excluded from an Employee's Credited Service unless he receives regular compensation from the City during such absence and except as otherwise provided in this paragraph.  The first two [2] years of Employee's 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 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 was by reason of compulsory military service, provided such period would otherwise have been included as Credited Service if the Employee had been in the active Service of the City. 

 

Effective for firefighters in the employ of the City on or after October 1, 2008, the years or fractional parts of years that a Firefighter serves in the military service of the Armed Forces of the United States or the United States Merchant Marine, voluntarily or involuntarily, after initial employment with the City shall be added to his years of Credited Service for all purposes, including vesting, pursuant to applicable provisions of federal and state law.

 

(17) Leave of Absence:

An absence from the active service of the City because of: sickness, disability, jury duty, compulsory military duty, a temporary layoff by the City, or any other reason on the basis of uniform policy applied by the City without discrimination.  Such a Leave of Absence will not terminate an Employee's Service provided he or she returns to the active employment of the City at or prior to the expiration of the Leave of Absence or, if not specified therein, within the period of time which accords with the City's policy with respect to permitted absences, or within the time allowed by applicable federal or state law.  If the Employee does not return to the active Service of the City at or prior to the expiration of the Leave of Absence as above defined, his or her Service will be considered terminated as of the date on which the Leave of Absence began.

 

A Maternity or Paternity Leave of Absence shall mean an absence from work for any period by reason of the Employee's pregnancy, birth of the Employee's child, placement of a child with the Employee in connection with the adoption of such child, or any absence for the purpose of caring for such a child for a period immediately following such birth or placement.  Such a Leave of Absence will not terminate an Employee's Service provided he or she returns to the active employment of the City at or prior to the expiration of the Leave of Absence or, if not specified therein, within the period of time which accords with the City's policy with respect to permitted absences.  If the Employee does not return to the active Service of the City at or prior to the expiration of the Leave of Absence as above defined, his or her Service will be considered terminated as of the date on which the Leave of Absence began.

 

(18) Normal Form of Payment:

A monthly income payable on the first day of each month.  The first payment will be made on the Participant's actual retirement date and the last payment will be the payment due next preceding the retired Participant's death; except that, in the event the Participant dies before he has received retirement income payments for a period of 10 years, the same monthly benefit will be paid for the remainder of such 10-year period to the Beneficiary designated by the Participant, or if no designated beneficiary is surviving, the same monthly benefit shall be payable for the remainder of such 10-year period as provided in Sections 4.2 and 4.3 hereof.  Furthermore, the Participant is guaranteed to receive benefits equaling his total contributions with interest.

 

Any Participant with a spouse shall receive retirement income in the form of a Qualified Joint and Contingent Annuity unless the Participant and his spouse elect otherwise in writing.   The amount of annuity payable to a Participant under the Qualified Joint and Contingent Annuity shall be the Actuarial Equivalent of the Normal Form of Payment payable under the provisions of the Plan.

 

Any Participant that is not married shall receive retirement income on a life only basis unless the Participant elects otherwise in writing.

 

 

(25)           Qualified Joint and Contingent Annuity:

An annuity for the life of the Participant with a survivor annuity for the life of the Participant's designated joint pensioner surviving spouse which is either 100%, 75%, 66 2/3% or 50% of the amount of the annuity payable during the joint lives of the Participant and the Participant's designated joint pensioner spouse.  A Qualified Joint and Contingent Annuity shall be the Actuarial Equivalent of the Normal Form of Payment payable under the provisions of the Plan.

 

(26) Retirement Committee:

The committee shall consist of five (5) Trustees appointed by the City Commission from time to time to administer the Plan pursuant to the provisions of Section 6.2 hereof.

 

(27) Service:

The period of an Employee's employment with the City from the Employee's last date of employment to the date of his or her Termination of Service for any reason.  Any absence from 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 will be considered a Termination of Service.  A Participant may voluntarily leave his or her contributions in the trust fund for a period of 5 years after leaving the employ of the City, pending the possibility of being rehired by the City.  If the Participant is not reemployed within 5 years, his or her contributions shall be returned.  Service shall also include any part of the years and fractional parts of years of service that an active Participant previously served as a Firefighter with the City, for which the Participant received a refund of contributions, provided that the active Participant contributes to the trust fund an amount which represents the actuarial equivalent of the value of the benefits attributable to such prior service credits on date of deposit, along with the costs of all professional services rendered to the Retirement Committee in connection with the calculation.

 

(32) Total and Permanent Disability:

A disability which is, in the opinion of the Retirement Committee, due to sickness or injury and which disability is likely to be continuous and permanent from a cause other than specified in Section 2.4 (B) hereof.   A Firefighter will be considered totally disabled if, in the opinion of the Retirement Committee, he or she is wholly prevented from rendering useful and efficient service as Firefighter; and a Firefighter will be considered permanently disabled if, in the opinion of the Retirement Committee, he or she is likely to remain so disabled continuously and permanently from a cause other than specified in subsection 175.191(3), Florida Statutes.

 

2. By amending Section 1.5 – BUY-BACK OF PRIOR SERVICE to read as follows:

 

Each Employee eligible to participate in the Plan on March 31, 1994 shall be permitted to a buy-back of prior Credited Service due to prior Service with the City of Leesburg Fire Department.  In order to receive credit for such prior Service, the Employee must make a contribution to the Plan equal to the amount of the Participant's contributions 5% of the Basic Compensation he received during the period of prior Service for which the buy-back is applicable, plus interest at 6%, compounded annually to the date payment is made to the Trustee.  This required contribution may be made in a lump-sum payment, or over a period of time not to exceed one [1] year from the date the Employee elects, in writing, to make the required contributions.  In the event that benefits should become payable hereunder to such Participant or his Beneficiary, prior to the time that his required contribution plus interest has been made in full, then the required payments to the Plan shall be completed by offsetting the amount yet due against benefit payments until the remaining balance due for the buy-back is paid in full.

 

Each Employee eligible to participate in the Plan shall be permitted to a buy-back of prior Credited Service due to prior Service with the City of Leesburg Fire Department.  In order to receive credit for such prior Service, the Employee must make a contribution to the Plan equal to the amount of the Participant's contributions 5% of the Basic Compensation he received during the period of prior Service for which the buy-back is applicable, plus interest at 6%, compounded annually to the date payment is made to the Trustee.  This required contribution may be made in a lump-sum payment, or over a period of time not to exceed one [1] year from the date the Employee elects, in writing, to make the required contributions.  In the event that benefits should become payable hereunder to such Participant or his Beneficiary, prior to the time that his required contribution plus interest has been made in full, then the required payments to the Plan shall be completed by offsetting the amount yet due against benefit payments until the remaining balance due for the buy-back is paid in full.

 

3. By amending Section 2.4 – DISABILITY RETIREMENT AND RETIREMENT INCOME to read as follows:

 

 (B)      Total and Permanent Disability:

A Participant may be considered disabled by the Retirement Committee if, in the opinion of two [2] of the three [3] following:

 

(1)               a duly licensed physician selected by the Retirement Committee,

 

(2)               a duly licensed physician selected by the Participant, and

 

(3)               a duly licensed physician mutually agreeable to the physicians selected in (1) and (2) above,

 

such Participant is so disabled as to be permanently unable to execute the regular duties of his usual course of employment as a Firefighter with the City or the duties of such other position or job within the Fire Department which the City makes available to him and for which such Employee is qualified by reason of his training, education or experience without loss of pay or benefits.

 

A Participant will not be deemed disabled if his disability is from a cause specified in Section 2.4(C) below.  In any event, a participant who is disabled for Non-line of Duty Disability must be disabled for at lease a period of five [5] months.

 

(C)              Non-admissible Causes of Disability:

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 use by the Participant of drugs, intoxicants, or narcotics;

 

(2)               injury or disease sustained by the Participant while willfully and illegally participating fights, riots, civil insurrections or while committing a felony;

 

(3)               injury or disease sustained by the Participant diagnosed or discovered subsequent to the date his employment has terminated;

 

(4)               injury or disease sustained by the Participant after commencing employment with the City and while working for anyone other than the City and arising out of such employment;

 

(4) (5)  injury or disease sustained by the Participant while serving in any armed forces;

 

(6)               injury or disease sustained by the Participant as a result of an act of war, whether or not such act arises from a formally declared state of war;

 

(7)               a condition pre-existing the Employee's employment by the City.  No Employee shall be entitled to a disability benefit because of or due to the aggravation of a specific impairment or other medical condition pre-existing at the date of employment, provided that such pre-existing condition and its relationship to a later injury, impairment or other medical condition be established by competent substantial evidence.  Nothing herein shall be construed to preclude a disability benefit to an employee who, after employment by the City suffers an injury, impairment or other medical condition different from some other injury, impairment or other medical condition existing at or prior to said date of employment.

 

(D)             Proof of Disability:

 

The Retirement Committee before approving the payment of any disability retirement income shall require satisfactory proof, in the form of a certificate from the duly licensed physicians selected as set forth in Section 2.4(B), that the Participant has become disabled as provided herein.  Every six [6] months after commencement of disability retirement income, or more frequently, the Retirement Committee may similarly require proof of the continued disability of the Participant.

 

(E)              Disability Retirement Income:

(1)               Non-Line of Duty Disability

(a)                Less than 10 Years of Service:

The benefit which is payable to a Participant who retires from the Service of the City under the provisions of this Section 2.4(E) (1) (a), due to Total and Permanent Disability, is the monthly retirement income payable for 10 years certain and life thereafter which can be provided by [i] or, [ii], whichever is greater, where:

 

[i] is the Single-Sum Value of the Participant's Accrued Benefit, which has accrued to the date of his Termination of Service due to disability; and

 

[ii] is two [2] times the Basic Compensation paid in the calendar year immediately preceding the Participant's date of Termination of Service due to disability; provided, however, the monthly retirement income provided by this Section 2.4(E) (1) (a) (ii) shall be limited to 60% (.60) of the Participant's Anticipated Monthly Retirement Income at the Normal Retirement Date.

 

(b)               10 Years of Credited Service or More:

 

The monthly amount of retirement income which is payable for 10 years certain and life thereafter to a Participant who retires from the Service of the City under the provisions of this Section 2.4(E) (1) (b) due to Total and Permanent Disability, shall be the larger of the monthly retirement income determined under [i], or [ii], or [iii], where:

 [i] is the monthly retirement income which can be provided by the Single-Sum Value of the Participant's Accrued Benefit, which he has accrued to the date of his Termination of Service due to disability; and

 

[ii] is 30% (.30) of the Participant's Basic Compensation paid in the calendar year immediately preceding the date of Termination of Service due to disability; provided, however, the Single-Sum Value of the monthly amount so computed shall not exceed 100 times the Participant's Anticipated Monthly Retirement Income at the Normal Retirement Date.

 

[iii] Provided however, the minimum amount paid to the Participant shall be twenty-five percent (25%) of the Participant's average monthly salary at the time of disability, or the accrual retirement benefit, whichever is greater.

 

(2)               Line of Duty Disability

The benefit which is payable for 10 years certain and life thereafter to a Participant who retires from the Service of the City under the provisions of this Section 2.4(E) (2), due to Total and Permanent Disability shall be an amount equal to 50% (.50) of the Participant's Basic Compensation paid in the calendar year immediately preceding the date of Termination of Service due to disability; provided, however, the Single-Sum Value of the monthly amount so computed shall not exceed 100 times the Participant's Anticipated Monthly Retirement Income at the Normal Retirement Date.  Provided however, the minimum amount paid to the Participant shall be forty-two percent (42%) of the Participant's average monthly salary at the time of disability, or the accrued retirement benefit, whichever is greater.

 

(F)               Payment of Disability Retirement Income:

The monthly retirement income to which a Participant is entitled in the event of his disability retirement will be payable on the first day of the each month.  Once the Retirement Committee approves the Participant's disability retirement, the The first payment will be effective made on the first day of the month following the last day that the Participant was paid Basic Compensation. coincident with or next following the date the Retirement Committee approves the Participant's disability retirement.  The last payment will be as follows:

 

(1)               if the Participant recovers from the disability prior to his Normal Retirement Date, the last payment will be the payment due next preceding the date of such recovery;

 

(2)               if the Participant dies prior to his Normal Retirement Date without recovering from his disability, the last payment will be the payment due next preceding the date of his death or the 120th payment, whichever is later.

 

(3)               if the Participant attains his Normal Retirement Date while still disabled, the last payment will be the payment due next preceding the disabled Participant's death or the 120th payment, 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 as provided in Sections 4.2 and 4.3.

 

(G)             Benefit Payable in the Event of Death of Disabled Participant Prior to Commencement of Disability Income:

In the event that the death of a disabled Participant occurs prior to the date on which his retirement income payments are to commence in accordance with Section 2.4(E) above, his designated Beneficiary will receive a monthly retirement income, payable for 10 years certain and life thereafter.  The monthly retirement income shall be payable beginning on the first day of the month coincident with or next following the date of the disabled Participant's death.  The amount of retirement income shall be that which can be provided on an Actuarial Equivalent basis by (a) or (b), whichever is greater, where:

 

(a)        is the Single-Sum Value, as of the date of the Participant's death of the         Participant's Accrued Benefit as of the date of his Termination of Service   due to disability, and

 

(b)               is [i] or [ii], whichever is smaller, where [i] is two [2] times his Basic Compensation paid in the calendar year immediately preceding the date of Termination of Service due to disability, and [ii] is 100 times the Participant's Anticipated Monthly Retirement Income at the Normal Retirement Date.

 

Provided, however, in lieu of payment of such benefit in the form of the monthly income described above, the Single-Sum Value of such benefit may be paid on an Actuarial Equivalent basis to the Participant's designated Beneficiary in a lump sum. in such other manner and form as the Participant 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 may elect and the Retirement Committee may approve:

 

4. By amending Section 2.5 – BENEFIT OTHER THAN ON RETIREMENT to read as follows:

 

(A)                                      Benefit on Termination of Service and on Death After Termination of          Service:

(3) In the event that the terminated Participant dies prior to the date as of which retirement income payments are to commence as described above (without having received, in accordance with Section 3.2, the value of the benefit, in Section 2.5(A) (1) above), his spouse or living designated Beneficiary, if there is no spouse or the spouse so approves said designated Beneficiary in writing, will receive the monthly retirement income, payable for 10 years certain and life thereafter and beginning on the first day of the month coincident with, or next following, the date of the terminated Participant's death, which can be provided by the Single-Sum Value of the benefit determined in accordance with Section 2.5(A) (1) above as of the date of the Participant's death, provided, however, in lieu of payment of such benefit in the form of the monthly income described above, the Single-Sum Value of such benefit may be paid on an Actuarial Equivalent basis to the Participant's spouse or designed Beneficiary in a lump sum. in such other manner and form as the Participant may elect and the Retirement Committee may approve.  If the payment is made to a designated Beneficiary other than the spouse then payment shall be made according to Section 2.5(D).

 

(B) Benefit Payable in the Event of Death While in Service on or Prior to Normal Retirement Date:

If the Service of the Participant is terminated by reason of his death on or prior to his Normal Retirement Date, there shall be payable to his spouse or his designated Beneficiary or if a deceased Participant fails to designate a Beneficiary or if the designated Beneficiary predeceases the Participant, then to the Estate of the deceased Participant if there is no spouse or if the spouse so approves said designated Beneficiary in writing, as provided in Section 1.1(A) (8) hereof, a monthly income beginning on the first day of the month coincident with or next following, the date of his death, which can be provided by (1) or (2), whichever is greater, where:

 

(1)               is the Single-Sum Value of the Participant's Accrued Benefit which he has accrued to the date of his death; provided, however, if the Participant had met the requirements for early retirement as set forth in Section 2.3 hereof, the Single-Sum Value of the early retirement benefit as set forth in Section 2.3, which would have been payable if the Participant had retired early on the date of his death, and

 

(2)               is [i] or [ii], whichever, is smaller, where [i] is two [2] times the Basic Compensation paid in the calendar year preceding the date of death, and [ii] is 100 times the Participant's Anticipated Monthly Retirement Income at the Normal Retirement Date.

 

All computations shall be on the basis of the interest and mortality assumptions in effect on the date of the Participant's death.

 

            (C) Benefit Payable in Event of Death While in Service After Normal Retirement    Date:

 

If the Service of a Participant is terminated reason of his death after his Normal Retirement Date, there shall be payable to his spouse or his designated Beneficiary or if a deceased Participant fails to designate a Beneficiary or if the designated Beneficiary predeceases the Participant, then to the Estate of the deceased Participant if there is no spouse or if the spouse so approves such designated Beneficiary in writing, as provided in Section 1.1(A) (8) hereof, a monthly income beginning on the first day of the month coincident with, or next following the date of his death, which can be provided on an Actuarial Equivalent basis by the Single-Sum Value of the late retirement income computed as of the Participant's date of death in accordance with Section 2.2(B) (2).

 

            (D)       Manner of Payment of Death Benefits:

 

The normal form of payment of the death benefit provided in Sections 2.5(B) and 2.5(C) is a monthly income payable for 10 years certain and life thereafter which provides monthly income payments payable for the life of the Beneficiary and further provides that, in the event of such Beneficiary's death within a period of 10 years after the Participant's death, the same monthly amount shall be continued for the remainder of such 10-year period.

 

In lieu of payment of such benefit in the form of monthly income described above, the Single-Sum Value of such benefit may be paid on an Actuarial Equivalent basis to the Participant's designated Beneficiary in a lump sum. in such other manner and form as the Participant may elect and the Retirement Committee may approve; provided, however, the death benefit payable to a designated Beneficiary other than the spouse shall be paid as set forth below.

 

A Participant is eligible for the death benefit upon becoming eligible to participate in the Plan.  Under the terms of Section 2.5(B) there is no election to be made on the part of a Participant to receive the death benefit.  Also the death benefit payable under the terms of the plan is always greater than the Pre-Retirement Survivor Annuity benefit.  The Single-Sum Value of the death benefit computed under Section 2.5(B) at the date of death is converted into a monthly income payable to the spouse or the designated Beneficiary.  For terminated Participants the vested Accrued Benefit at the date of termination is converted into the Single-Sum Value of such benefit at the date of death an this amount is converted into a monthly income payable to the spouse or the designated Beneficiary.

 

The term "Pre-Retirement Survivor Annuity" shall mean an annuity payable to the Participant's spouse or designated Beneficiary as set forth in this Section 2.5 herein.

 

The payment of the death benefit under the Plan on behalf of any Participant will:

 

            (1) (a)  be distributed to him not later than the Required Distribution Date                                       (as defined in paragraph (3) below;

                 (b) be distributed to him commencing not later than the Required Distribution Date in accordance with regulations prescribed by the Secretary of the Treasury (i) over the life of the Participant or over the lives of the Participant and his designated Beneficiary, or (ii) over a period not extending beyond the life expectancy of the Participant or the life expectancy of the Participant and his designated Beneficiary.

 

5. By amending Section 3.1 – OPTIONAL FORMS OF RETIREMENT INCOME to read as follows:

In lieu of the amount and form of retirement income payable in the event of normal retirement, early retirement, disability retirement, or Termination of Service as specified in Section 2.2, 2.3, 2.4 and 2.5(A) hereof, a Participant, upon written request to the Retirement Committee, may elect to receive a retirement income or benefit commencing on the date specified in Sections 2.2, 2.3, 2.4, or 2.5(A), whichever is applicable, of an Actuarial Equivalent value payable in accordance with one of the following options:

            Option 1:

            A retirement income of a larger monthly amount, payable to the Participant for his lifetime only.

            Option 2:

A retirement income of a 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 the Participant, either 100%, 75%, 66 2/3% or 50% of such monthly amount payable to the joint pensioner for the lifetime of the joint pensioner.  In the event the joint pensioner predeceases the Participant, the Participant shall continue to receive the same monthly amount as payable during their joint lifetime.

            Option 3:

Such other amount and form of retirement income payments or benefits as, in the opinion of the Retirement Committee, will best meet the circumstances of a Participant.  If the Participant is one of the 25-Highest Paid Participants as provided in Section 3.5, his election of a lump-sum form of payment shall be limited by the terms thereof.  If a Participant is married and he or she elects a lump-sum payment that has a value of $3,500 or more and the Retirement Committee approves a lump-sum payment, then such election form shall provide for the spouse to approve, in writing, the receipt of a lump-sum payment by the Participant.

 

Notwithstanding any provisions of this Section 3.1 to the contrary, any option, which provides a joint and survivor form of retirement payments or benefits pursuant to the forgoing provisions and which includes a joint pensioner who is not the spouse of the Participant, will not be available hereunder unless the actuarial value of the benefits expected to be paid under such option to the Participant during the remainder of his lifetime is a least equal to 50% of the actuarial value of the benefits which would be payable under the Plan in the absence of such option; and further provided that if any option is a monthly income other than a joint and survivor form of retirement payments or benefits, the monthly income payable to a Participant under such form shall not be less than the monthly income payable under a payments certain and life thereafter option for the earlier of 20 years or age 85.

 

The Participant upon electing any option of this section will designate the joint pensioner or Beneficiary 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 Committee.  If a Participant has elected an option with a joint pensioner and his retirement income payments have commenced, he may not change his designated joint pensioner.

 

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 or terminated Participant dies prior to the date that his retirement income commences under the Plan, no benefits will be payable under the option to any person, but benefits will be payable only as provided in Sections 2.5(A) (3), 2.5(B) and 2.5(C).

 

(B)              If the designated Beneficiary or joint pensioner dies before the date that the Participant's retirement income commences under the Plan, the option elected will be canceled automatically and a retirement income of the normal form and amount will be payable to the Participant 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 joint pensioner is designated by the Participant prior to the date that his retirement income commences under the Plan. and within 90 days after the death of the prior Beneficiary or joint pensioner.

 

(C)              If both the Participant and the Beneficiary designated by him die after the date that the Participant's retirement income commences under the Plan but 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 this Section 3.1, the Retirement Committee may, in its discretion, direct that the Single-Sum Value of the remaining payments be paid in a lump-sum and in accordance with Section 4.3 hereof.

 

(D)             Once retirement income payments have commenced a Participant may not request a change of the amount or form of payment elected.

 

6. By amending Section 3.2 - LUMP-SUM PAYMENT OF SMALL RETIREMENT INCOME to read as follows:

In addition to any other provision of the Plan, if the Single-Sum Value of the vested accrued retirement income is less than $5,000 $3,500 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 value of such retirement income be paid in a lump-sum or in monthly installments for a period certain of not more than 60 months, where such Actuarial Equivalent value is based upon the mortality and interest assumptions in effect on such date.

 

7. By amending Section 4.2 - BENEFICIARIES to read as follows:

            Each Participant, on a form shall designate a Beneficiary as set forth in Section 1.1(A) (8) to receive the death benefit, if any, which may be payable under the Plan in the event of his death.  Each designation may be revoked by the Participant according tot he provisions set forth elsewhere in the Plan and by signing and filing with the Retirement Committee a new "Designation of Beneficiary" form.  If a deceased Participant failed to name a Beneficiary in the manner prescribed in the Plan or if a Beneficiary 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 shall may be paid, in the discretion of the Retirement Committee, to any one or more of the persons comprising the group consisting of the Participant's spouse, the Participant's descendants, the Participant's parents, or the Participant's heirs-at law.  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 to the estate of such deceased Participant; provided, however, that in any  of such cases the Single-Sum 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 4.2 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.

 

            8. By amending Section 4.3 – CONTINGENT BENEFICIARIES to read as follows:

In the event of the death of a Beneficiary who is receiving benefits pursuant to the provisions of the Plan within any certain period specified under the Plan after the Participant's death, the same amount of monthly retirement income which the beneficiary was receiving shall be payable for the remainder of such specified manner provided in Section 4.2) 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 specified certain 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 Participant's parents, the Beneficiary's parents, the Participant's heirs-at law, or (b) to the estate of such deceased Beneficiary; provided, further, that in any of such cases the Retirement Committee may, in its discretion, direct the Single-Sum Value of the monthly retirement income payments due for the remainder of the specified certain period to be paid in a lump-sum.  Any payments made to any person pursuant to the power and discretion conferred upon the Retirement Committee by the provisions of this Section 4.3 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.

 

9. By amending Section 4.5 – BENEFITS NOT ASSIGNABLE to read as follows:

No benefits, rights or accounts, including accumulated contributions, 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 to so anticipate, alienate, sell, transfer, assign, pledge, encumber or charge the same shall be null and void; nor shall any such benefit, right or account, including accumulated contributions, under the Plan 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 or account; nor shall any benefit, right, or account, including accumulated contributions, under the Plan constitute an asset in case of the bankruptcy or receivership and any such benefit, right or account, including accumulated contributions, under the Plan shall be payable only directly to the Participant or Beneficiary, as the case may be.

 

Notwithstanding the foregoing paragraph, the Retirement Committee shall make payments pursuant to a Qualified Domestic Relations Order as defined in Section 414(p) of the Internal Revenue Code of 1986 and amendments thereto or any other applicable statute.  The Retirement Committee shall establish procedures consistent with Section 414(p) of such code to determine if any order received by the Retirement Committee, or any other fiduciary of the plan, is a Qualified Domestic Relations Order.  Section 175.061(7), Florida Statutes.

 

10. By amending Section 6.3 - AUTHORITY, DUTIES AND RESPONSIBILITIESOF THE RETIREMENT COMMITTEE to read as follows:

            (B)       Authority of the Retirement Committee:

(3)               The Retirement Committee, with approval of the City Commission; shall have the authority to appoint from time to time an actuary to do such actuarial, technical, and advisory work as the Retirement Committee may request including analysis of the experience of the Plan from time to time, the preparation of actuarial tables for the making of computations thereunder, and the submission of an actuarial report each year to the City and 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 Plan Year, and such other information as may be required by the Retirement Committee.  The actuary as appointed by the Retirement Committee shall serve as long as it is mutually agreeable to the Retirement Committee and the actuary.  In computing benefits to which a Participant may be entitled upon early retirement, upon the exercise of optional forms of retirement benefits 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 actuary and the Retirement Committee as being reasonable at the time such calculations are made.  The actuarial assumptions and the computation made therefrom adopted by the Retirement Committee shall be conclusive and binding on all persons whomsoever.  Provided however, all actuarial computations and actuarial assumptions shall be consistent with applicable law.

 

(4)               The Retirement Committee, with approval of the City Commission, shall have the authority to appoint from time to time one or more investment advisors, upon receipt of written authorization from the City Commission.  Each investment advisor so appointed shall have full discretion to direct the Trustee with respect to the acquisition, retention, management, and disposition of the portion of the assets of the Trust Fund for which such investment advisor has been given the authority to administer, subject to the provisions of the Trust Agreement and the Retirement Committee's written investment policy, with respect to permissible investments and subject to the provisions of the Trust Agreement with respect to an investment advisor.

 

11. By amending Section 6.4 – APPLICABLE LAW to read as follows:

(a)        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 according to the laws of the said State. To the extent that any provision of this Plan is in conflict with the provisions of Sections 112.61 – 112.67, Florida Statutes, as they may be amended from time to time, the provisions of Sections 112.60 – 112.67, Florida Statutes shall prevail and the Retirement Committee is hereby delegated the authority to adopt written rules and regulations in order to comply with Sections 112.60 – 112.67, Florida Statutes, which rules shall have the force of law and shall be considered part of this Plan.

 

(b)               The applicable mandatory provisions of federal and state law now existing or as they may exist in the future are incorporated herein by reference, except for provisions of applicable law which are permissive or not preemptive are not authorized herein.  The Retirement Committee is authorized to adopt written rules setting forth the specifics of applicable mandatory provisions of federal and state law as they now exist or may exist in the future, and is authorized in its administrative practices to comply with applicable mandatory provisions of federal and state law as they now exist or may exist in the future.  Applicable mandatory provisions of federal and state law include, but are not limited to, the following:

 

1.                  Applicable provisions of the Internal Revenue Code, including, but not limited to, Sections 401(a)(17) and 415 of the Internal Revenue Code.

 

2.                  Uniformed Services Employment and Reemployment Rights Act (USERRA), relating to military service.

 

3.                  Chapter 61, Florida Statutes, including, but not limited to, income deduction orders.

 

4.                  Section 112.3173, Florida Statutes, relating to forfeiture of retirement benefits.

 

5.                  Chapter 112, Part III, Florida Statutes, relating to the Code of Ethics for Public Offices and Employees.

 

6.                  Chapter 112, Part VII (Sections 112.60 – 112.67), Florida Statutes, cited as the "Florida Protection of Public Employee Retirement Benefits Act."

 

7.                  Section 112.661, Florida Statutes, relating to investment policies.

 

8.                  Chapter 119, Florida Statutes, relating to public records.

 

9.                  Section 175.071, Florida Statutes, relating to the general powers and duties of the board of trustees.

 

10.              Section 175.195, Florida Statutes, relating to false, misleading or fraudulent statements made to obtain public retirement benefits.

 

11.              Section 175.221, Florida Statutes, relating to lump-sum payment of small retirement income.

 

12.              Section 175.231, Florida Statutes, relating to the presumption that certain diseases of firefighters were suffered in the line of duty.

 

13.              Section 175.241, Florida Statutes, relating to exemption from tax and execution.

 

14.              Section 175.351, Florida Statutes, relating to municipalities having their own pension plan for firefighters.

 

15.              Subsections 215.47(1)-(8), (10) and (16), Florida Statutes, concerning authorized investments.

 

16.              Section 286.0105, Florida Statutes, relating to notices of meeting and hearings.

 

17.              Section 286.011, Florida Statutes, relating to public meetings.

 

18.              Section 286.012, Florida Statutes, relating to voting requirements.

 

Except as herein amended, the Plan shall remain in full force and effect.

 

IN WITNESS WHEREOF, the CITY OF LEESBURG, as Employer, has caused these presents to be executed by its duly authorized officers on this            day of__         , 2008, effective October 1, 2008.

 

CITY OF LEESBURG, as Employer

 

BY:

 

 ______________________________

                              Mayor

 

ATTEST:

 

 

_________________________________

              City Clerk