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2014-24 ORDINANCE NO. 2014-24 AN ORDINANCE AMENDING CERTAIN SECTIONS OF ARTICLE II, CHAPTER 66 OF THE CODE OF THE CITY OF FAIRFAX, VIRGINIA, PERTAINING TO THE RETIREMENT PLAN FOR GENERAL EMPLOYEES BE IT ORDAINED, by the City Council of the City of Fairfax, that the following specified Sections and Subsections of Article II, Chapter 66, of the Code of the City of Fairfax, Virginia, are hereby amended to read in their entirety as follows: Sec. 66-41. Definitions. For the purposes of this article, the following words and phrases shall have the meanings respectively ascribed to them by this section, unless otherwise required by the context: Accumulated contributions means, for any participant as of any date, the total obtained by accumulating each individual contribution of the participant, with interest from the July 1 next following the date such contribution was made to the first day of the month of the date as of which the computation is made. The interest to be credited to each participant's contributions for each 12-month period commencing on July 1 and ending on the following June 30 shall be determined by the committee each year on the basis of the actual net yield of the fund for such period, provided, however, that in no event shall the rate of interest credited for any such 12- month period be less than four percent per annum. Notwithstanding the foregoing, effective July 1, 2014, the interest to be credited to each participant's contributions for each 12-month period commencing on July 1, and ending on the following June 30, shall be equal to three percent per annum. Actuarial equivalent means a benefit with a reserve equal to the reserve of another benefit. Average final compensation means for any participant, whose initial date of employment for the city as an eligible employee is prior to July 1, 2014, as of any date, the average annual compensation of the participant during the three consecutive years of his credited service during which his compensation was highest or during the entire period of his credited service if less than three years. In the case of any participant whose initial date of employment for the city as an eligible employee is on or after July 1. 2014, as of any date the average annual compensation of the participant during the five consecutive years of his credited service during which his compensation was highest, or during the entire period of his credited service if less than five years. In the case of a part-time participant, the annualized, full-time equivalent compensation shall be used in this calculation in place of the actual annual compensation. Beneficiary means any person who is receiving or designated to receive a plan benefit by reason of the plan participation of another person. City means the City of Fairfax, Virginia, or any municipal corporation successor thereto, or the authority of the city having the power to appoint an employee to office or employment. Committee means the administrative committee provided for in division 9 of this article. Compensation means, for any eligible employee, the full base compensation paid to him by the city excluding overtime or other compensation not a part of the set scale for an established normal working period and excluding contributions by the city to any employee benefit plan other than this plan. Compensation shall include, without duplication, contributions picked up under subsection 66-192(c) on behalf of the eligible employee, and shall include any salary deferrals made to plans maintained by the city pursuant to section 125 or 132(f) of the IRS Code, but shall not include contributions by the city pursuant to section 66-193. In cases where compensation includes maintenance or other perquisites, the committee shall fix the value of that part of the compensation not paid in money. Notwithstanding the foregoing, "compensation" shall not include (1) any item not specified in section 1.415-2(d)(2) of the treasury regulations or (2) any item which is listed in section 1.415-2(d)(3) of the Treasury regulations. Furthermore, "compensation" shall include "differential pay" within the meaning of section 414(u)(12) of the IRS Code paid to a participant performing "qualified military service" within the meaning of section 414(u)(5) of the IRS Code. In addition to other applicable limitations set forth in the plan, and notwithstanding any other provision of the plan to the contrary, for plan years beginning on or after January 1, 1994, the annual compensation for each employee taken into account under the plan shall not exceed the OBRA '93 annual compensation limit. The OBRA '93 annual compensation limit is $150,000.00, as adjusted by the Secretary of the Treasury for increases in the cost of living in accordance with section 401(a)(17)(b) of the IRS Code. The cost-of-living adjustment in effect for a calendar year applies to any period, not exceeding 12 months, over which compensation is determined (the determination period) beginning in such calendar year. If a determination period consists of fewer than 12 months, the OBRA '93 annual compensation limit will be multiplied by a fraction, the numerator of which is the number of months in the determination period, and the denominator of which is 12. For plan years beginning on or after January 1, 1994, any reference in this plan to the limitation under section 401(a)(17) of the IRS Code shall mean the OBRA '93 annual compensation limit set forth in this provision. If compensation for any prior determination period is taken into account in determining a participant's benefits accruing in the current plan year, the compensation for that prior determination period is subject to the OBRA '93 annual compensation limit in effect for that prior determination period. For this purpose, for determination periods beginning before the first day of the first plan year beginning on or after January 1, 1994, the OBRA '93 annual compensation limit is $150,000.00. The annual compensation of each participant taken into account in determining benefit accruals for any plan year beginning after December 31, 2001, shall not exceed $200,000.00, as adjusted for cost-of-living increases in accordance with section 401(a)(17)(b) of the IRS Code. Annual compensation means compensation during the plan year or the determination period. The cost-of-living adjustment in effect for a calendar year applies to annual compensation for the determination period that begins with or within such calendar year. Contingent annuitant means the person designated by a participant to receive retirement benefits, after the death of the participant, under the joint and last survivor option of division 5 of this article. Contributions means the payments to the fund by the city and/or the participants as provided for in this article. Credited service means, for any participant as of any date, the period or periods prior thereto during which he shall have been in the full time employ of the city as an eligible employee, exclusive of: (a) Any period of employment prior to his date of becoming a participant if he did not become a participant within 90 days after his earliest opportunity to do so; and (b) Subject to subsection (f) below, any period of employment prior to the date of any withdrawal of the participant's accumulated contributions in accordance with the provisions of division 7 of this article. In addition to his period or periods of full-time employment, the credited service of a participant shall include any period of his: (c) Vacation, or any other absence from employment for which the participant shall receive full compensation; (d) Leave of absence without pay specifically authorized by the city under general rules uniformly applicable to all employees similarly situated; and (e) Service in the armed forces of the United States, provided the participant entered such service directly from the employ of the city, was honorably discharged from such service, and was reemployed by the city during a period when his right to reemployment with the city was protected by law, to the extent credit for service is required to be given pursuant to section 414(u) of the IRS Code and the Uniformed Services Employment and Reemployment Rights Act. (f) Service that was previously cancelled in accordance with section 66-167, or not credited during a period of time classified by the city as "leave without pay," and reinstated effective as of the earlier of the date of the participant's cessation of the receipt of compensation following termination of employment or completion of repayment of withdrawn contributions, under the following conditions: 1. The participant has at least one month of "qualified 2004 service" within the meaning of this section 66-41 or 66-281. 2. The participant has repaid all or a portion of the contributions withdrawn plus interest on such contributions as determined in subparagraph 3. 3. Interest has been charged on the participant's previously withdrawn contributions at an annual rate of 5.0 percent or such other rate as the committee may subsequently establish for these purposes compounded biweekly. The interest has been charged from the date of withdrawal to the earlier of the participant's termination of employment or date of completion of the repayment. 4. Redeposit of the withdrawn contributions, plus interest, has been made on or before the later of the following two dates: (A) Five years after the participant has been reemployed by the city, and (B) December 31, 2009. 5. The service to be reinstated is not eligible for and has not been credited under another retirement system (with the exception of the Virginia Retirement System). 6. The participant has completed and executed in a timely manner any and all forms the committee deems necessary for the reasonable operation and administration of these service reinstatement provisions. 7. The participant has elected to repay the withdrawn contributions in one of the following forms: (A) A direct rollover from another employer's qualified retirement plan or tax deferred annuity plan of the total amount of the withdrawn contributions, plus interest; (B) A direct rollover or direct transfer from an eligible deferred compensation plan established pursuant to section 457(b) of the IRS Code of the total amount of the withdrawn contributions, plus interest; or (C) Pretax payments pursuant to one or more binding, irrevocable payroll deduction authorizations between the city and the participant. If the participant enters into such an authorization, the participant contributions will be picked up by the city, as described in section 414(h)(2) of the IRS Code and deducted from the pay of the contributing participant as a salary reduction contribution and paid by the city to the trustee with reasonable promptness. 8. If the participant elects to repay the withdrawn contributions by pretax payments pursuant to subsection (f)7.(C), the minimum payment per pay period shall be $20.00. Furthermore, if the participant ceases to receive compensation from the city following termination of employment and prior to completing the payment of the withdrawn contributions, the service credit awarded shall be prorated based on the payments made as of the date the participant ceases to receive compensation from the city following termination of employment. (g) Part-time employment, as provided for in the definition of "eligible employee" in this section 66-41. (h) Service credit that would have been credited prior to March 1, 2004, had the plan permitted part-time employees to participate in the plan since inception of the plan provided that: 1. The participant is employed as an eligible employee of the city on March 1, 2004, and has at least one month of"qualified 2004 service." 2. The participant pays over to the trustee an amount equal to all or a portion of the cost of the service determined at the full actuarial rate for the cost of the service. The full, actuarial cost of the service shall be determined in accordance with procedures adopted by the committee intended to calculate the cost of the service in a uniform and nondiscriminatory manner. 3. The individual makes an affirmative, irrevocable election to purchase all or a portion of the service, in writing, in a form acceptable to the committee, on or prior to February 28, 2005. 4. The individual completes the payment for the service within five years of the date of the election by the participant to purchase the service. 5. The service to be credited is not eligible for and has not been credited under another retirement system (with the exception of the Virginia Retirement System). 6. The participant has completed and executed in a timely manner any and all forms the committee deems necessary for the reasonable operation and administration of these service credit provisions. 7. The participant has elected to pay over the cost of the service in one or more of the following forms: (A) A direct rollover from another employer's qualified retirement plan or tax deferred annuity plan; (B) A direct rollover or direct transfer from an eligible deferred compensation plan established pursuant to section 457(b) of the IRS Code; or (C) Pretax payments pursuant to one or more binding, irrevocable payroll deduction authorizations between the city and the participant. If the participant enters into such an authorization, the participant contributions will be picked up by the city, as described in section 414(h)(2) of the IRS Code and deducted from the pay of the contributing participant as a salary reduction contribution and paid by the city to the trustee with reasonable promptness. 8. If the participant elects to pay for the cost of the service by pretax payments pursuant to subsection (h)6.(C), the minimum payment per pay period shall be $20.00. 9. If a participant ceases to receive compensation from the city after termination of employment prior to completing the purchase of service, the service credit awarded shall be pro-rated based on the payments made as of the date the participant ceases to receive compensation from the city following termination of employment. In the event of the participant's subsequent re-employment by the city after cessation of receipt of compensation following termination of employment and prior to completing the purchase of service, no additional credit may be purchased pursuant to subsection (h). Notwithstanding the foregoing, the participant may pay over to the trustee, in one lump sum, an amount necessary to purchase the balance of the credit for the service unpaid as of the date of the participant's termination of employment. 10. All purchases of service credit and elections by participants pursuant to subsection (h) shall be adjusted as necessary to ensure compliance with section 415 of the IRS Code. Solely for purposes of calculating a benefit (other than a disability retirement allowance) becoming effective April 1, 1983, or later, the credited service of a participant shall also include his completed months of unused sick leave at time of termination of employment, based on 173 hours of unused sick leave constituting one completed month; provided, in no event shall the inclusion of unused sick leave as credited service affect the calculation of the participant's compensation or average final compensation. Eligible employee means any person regularly employed by the city, other than a person who qualifies as an eligible employee under the retirement plan for police and fire employees of the city, and other than a temporary employee, within the meaning of section 66-2 of the City Code. In the discretion of the city council, eligible employee may also mean the commissioner of the revenue, the city treasurer, the general registrar of voters, and full-time employees reporting to the office of the commissioner of the revenue, the treasurer's office, and the registrar's office. Prior to March 1, 2004,2004 and with respect to an employee whose initial date of employment for the city is after June 30, 2014, an eligible employee must be employed by the city on a full-time basis. From and after March 1, 2004, an eligible employee includesMarch 1, 2004 and with respect to an individual whose initial date of employment for the city is prior to July 1, 2014, permanent part-time employees are considered to be eligible employees. For the purposes of determining eligibility conditions and benefit formulas, such individualspermanent part-time employees who qualify as eligible employees shall be treated as though their date of hireemployment were the later of March 1, 2004, and their actual date of hire into an eligible position. In the case of an individual whose status is not clear, the committee shall determine their status. Full-time equivalent percentage means 100 percent for a full-time employee, and such lesser percentage as is applicable for a part-time employee. Fund means the trust fund created under the terms of the trust agreement, consisting of the cash, securities and other assets held by the trustee pursuant to the terms of the plan. Inflation index means the Consumer Price Index for All Urban Consumers, All Items, U.S. City average, as published by the Bureau of Labor Statistics of the United States Department of Labor. IRS Code means the Internal Revenue Code of 1986, as amended from time to time. Participant means an eligible employee or a former eligible employee who has become eligible to participate in the plan as provided in division 2 of this article, and is prospectively entitled to future benefits under the terms of the plan. Plan means the retirement plan for employees of the city, as now contained in this article or as duly amended. Plan year means the 12-month period ending on the last day of June. Qualified 2004 service (for the purposes of the 2004 amendments) means credited service earned on or after December 1, 2003, in direct connection with employment as an eligible employee of the city. Reserve means the present value of all payments to be made on account of any plan benefit, based upon such reasonable tables of experience and interest as the committee shall adopt, from time to time, after consulting with its actuary. Social Security full retirement age means the age at which there is no reduction in Social Security benefits based upon the following table: Year Born Age for Full Benefits 1937 or earlier 65 years 1938 65 years, 2 months 1939 65 years, 4 months 1940 65 years, 6 months 1941 65 years, 8 months 1942 65 years, 10 months 1943-1954 66 years 1955 66 years, 2 months 1956 66 years, 4 months 1957 66 years, 6 months 1958 66 years, 8 months 1959 66 years, 10 months 1960 or later or later 67 years Totally and permanently disabled means as set forth in subsection 66-84(b). Trust agreement means the agreement entered into between the city and the trustee pertaining to the administration of the fund. Trustee means the financial institution appointed by council to hold in trust and invest the fund, as provided for in division 8, which may, from time to time, be acting in that capacity under the terms of the trust agreement. Year of credited service means a plan year during which an eligible employee is employed on a substantially full-time basis and makes the contributions required to be made pursuant to section 66-192 for the entire year or otherwise receives credit for credited service pursuant to this section 66-41. Notwithstanding the foregoing, for purposes of determining the amount of a participant's retirement benefit pursuant to sections 66-101, 66-102 and 66-104, a participant shall receive credit for one-twelfth of a year of credited service for each month during which the participant was an eligible employee for the entire month, was employed on a substantially full-time basis, made the contributions required to be made pursuant to subsection 66-192(c) for the entire month or otherwise receives credit for credited service pursuant to this section. In the case of eligible employees who are part-time employees, service credit shall be initially calculated as though they were full-time employees for the entire year. The resulting credited service shall then be adjusted for the individual's full-time equivalent percentage. For example, an individual who is employed on a half time basis would normally receive one half of a year of service credit for each year worked. In no event shall the amounts of service credit in any year exceed the individual's full-time equivalent percentage multiplied by 12 months. (Code 1978, § 17-26; Ord. No. 2002-12, 6-11-2002; Ord. No. 2003-25, 12-9-2003; Ord. No. 2004-2, 3-9-2004; Ord. No. 2004-20, 10-12-2004; Ord. No. 2009-25, 10-13-2009; Ord. No. Cross reference—Definitions generally, § 1-2. Sec. 66-81. Normal retirement. (a) The normal retirement date of a participant whose initial date of employment for the city as an eligible employee is prior to July 1, 2014 shall be the first day of the month coinciding with or next following the later of: (1) The date on which the participant attains the age of 60; or (2) The date he completes five years of credited service. (b) The normal retirement date of a participant whose initial date of employment for the city as an eligible employee is on or after July 1, 2014 shall be the first day of the month coinciding with or next following the later of: (1) The date on which the participant attains the age of 62; or (2) The date he completes seven years of credited service. (Code 1978, § 17-46) Sec. 66-82. Early retirement. (a) A participant with fivewhose initial date of employment for the city as an eligible employee is prior to July 1, 2014 and with five or more years of credited service may retire from the employment of the city prior to his normal retirement date on the first day of any month after he has completed 25 years of credited service, or has attained the age of 50. (b) A participant whose initial date of employment for the city as an eligible employee is after June 30, 2014 and with seven or more years of credited service may retire from the employment of the city prior to his normal retirement date on the first day of any month after he has completed 25 years of credited service, or has attained the age of 50. (Code 1978, § 17-47) Sec. 66-84. Disability retirement. (a) (1) A participant whose initial date of employment for the city as an eligible employee is prior to July 1, 2014 and who becomes totally and permanently disabled after the completion of five or more years of credited service, may retire from the employment of the city on the first day of any month thereafter prior to his normal retirement date. (2) A participant whose initial date of employment for the city as an eligible employee is after June 30, 2014 and who becomes totally and permanently disabled after the completion of seven or more years of credited service, may retire from the employment of the city on the first day of any month thereafter prior to his normal retirement date. (b) The committee shall determine whether a participant is totally and permanently disabled, which, for purposes of this section, shall mean that the participant is unable to work in the position occupied by him, by reason of personal disease or injury. (c) Upon receiving a participant's written application for disability benefits,the committee shall require the participant to submit, from a physician of the participant's choice, a written report of findings and recommendations. The committee shall then select a physician of its choice and require the participant to submit to a medical examination. In the event that there is no clear preponderance of medical evidence from the above two physicians, a third physician will be selected by the original two physicians, who will also examine the participant and submit a written report of findings and recommendations. The committee may waive any examination required by this section for justifiable causes, but in no event shall any participant be granted disability benefits without submitting to at least one medical examination. Failure of any participant to submit to medical examination as required by this section will result in the denial of the participant's disability benefit. (d) In making a determination under this section, the committee may consider whether a participant qualifies for disability retirement benefits under the provisions of the Virginia Retirement System, but such qualification shall not, by itself, be proof of a participant's eligibility under this section. (e) Benefits shall not be payable under this section for any disability resulting from a pre- existing condition which was discovered during a participant's employment physical examination, and for which the participant executed a waiver of eligibility for benefits. (f) For purposes of this section 66-84, a participant who becomes disabled while performing "qualified military service," within the meaning of section 414(u)(5) of the IRS Code, will be deemed to have incurred the disability before retirement from city employment and such a disability will be deemed to be not duty-related for purposes of section 66-104. (Code 1978, § 17-49; Ord. No. , ) Sec. 66-108. Benefit redetermination after retirement. (a) Effective July 1, 1983, and beginning with the July 1 which is at least four full months after the effective date of a monthly benefit, the amount of the benefit shall be redetermined effective each July 1 and such redetermined amount shall be payable for the ensuing year. The term "the amount of the benefit otherwise payable" means the monthly amount of benefit which would be payable disregarding these provisions redetermining benefit amounts after retirement; provided, for a retirement effective before April 1, 1983 such monthly amount shall not be less than the monthly amount in effect as of July 1, 1983. In no event shall a redetermined benefit amount ever be less than the amount of the benefit otherwise payable. Such redetermined amount shall be the amount of the benefit otherwise payable increased by the lesser of the percents in subsections (1), (2), (3), (4) or (5) as applicable, as follows: (1) Five percent annually, compounded annually, for the number of years, and fraction of a year measured in completed months, from the effective date of the benefit, or April 1, 1983, if later, to the April 1 before the current July; (2) For a participant who became an eligible employee on or before March 31, 1983, the percentage increase in the inflation index for the period from the month next preceding the effective date of the benefit, or March 1983, if later, to the March next preceding the current July; or (3) For a participant who became an eligible employee on or after April 1, 1983, and for benefit redeterminations effective before January 1, 2004, one-half of the percentage increase in the inflation index for the period from the month next preceding the effective date of the benefit to the March next preceding the current July. (4) For a participant who became an eligible employee on or after April 1, 1983, and who retired prior to April 1, 2003 and for benefit redeterminations effective on or after January 1, 2004, one-half the percentage increase in the inflation index for the period from the month next preceding the effective date of the benefit to March 2003; plus the percentage increase in the Inflation Index for the period March 2003 to the March next preceding the current July. (5) For a participant who became an eligible employee on or after April 1, 1983 and who retired on or after April 1, 2003, the percentage increase in the Inflation Index for the period from the month next preceding the effective date of the benefit to the March next preceding the current July. (b) For a participant whose initial date of employment for the city as employe an eligible e is on or after July 1, 2014, such redetermined amount shall be the amount of the benefit otherwise payable increased by the lesser of the percentage increase in the Inflation Index for the period from the month next preceding the effective date of the benefit to the March next preceding the current July, or three percent, (Code 1978, § 17-67; Ord. No. 2003-25, 12-9-2003) Sec. 66-147. Death before retirement. (a) a) If a participant whose initial date of employment for the city is prior to July 1, 2014 with five or more years of credited service, including credited service for the year immediately preceding his death, dies before retirement and while in city employment, the applicable benefits provided in subsections (b), (c), (d) and (f) in this section shall be paid, subject to section 66-106. For purposes of this section 66-147, a participant who dies while .erformin• "•u.lifted milita service " wi hin the m-anin' of se ti•n 414 u of the IR Code, will be deemed to have died while in city employment. 2 If . •artici.. whose ini i.1 date of -m.lo ment for the ci i after un- I 2014 with -yen or more . of cr-di -4 service includin' r-dit-d s-rvi - for th- -•r immediatel_.re edin' his d-.th dies before retirement and while in i em.le ment the as s lica s le benefits .rovid-. in s .sec ion b c d and _ in his ec ion h.11 be ..io subject to section 66-106. For purposes of this section 66-147, a participant who dies while performing "qualified military service," within the meaning of section 414(u)(5) of the IRS Code, will be deemed to have died while in city employment. (b) A participant's surviving spouse, if married to the participant at least the one year immediately preceding his death, shall receive a monthly allowance computed in the same manner in all respects as if such participant had (i) retired on the date of his death with entitlement to an allowance provided for in section 66-81 or section 66-83, whichever is applicable, (ii) elected Option 1 with 100 percent continuation to the contingent annuitant provided for in section 66-126 and (iii) nominated such spouse as contingent annuitant. Such spouse allowance shall not be less than 15 percent of the deceased participant's average final compensation at time of death. If such spouse had not attained age 40 at the time of the participant's death, such spouse allowance shall be payable for the remaining life of such spouse, but in no event for more than 120 months. (c) While a spouse allowance is payable as a result of a participant's death while in city employment, his dependent child or dependent children shall each receive a monthly allowance of ten percent of such participant's average final compensation at time of death; provided, while there are three or more such dependent children, each dependent child shall receive an allowance of an equal share of 25 percent of such average final compensation. Upon a child ceasing to be a dependent child, his allowance shall terminate, and there shall be a redetermination of the amounts payable to any remaining dependent children. (d) While a spouse allowance is not payable as a result of a participant's death while in city employment, his dependent child or dependent children shall each receive a monthly allowance of 20 percent of such participant's average final compensation at time of death; provided, while there are three or more such dependent children, each dependent child shall receive an allowance of an equal share of 50 percent of such average final compensation. Upon a child ceasing to be a dependent child, his allowance shall terminate, and there shall be a redetermination of the amounts payable to any remaining dependent children. (e) The term "dependent child" means a child until his death or his marriage or his attainment of age 23 years, whichever occurs first; provided however, that the age 23 maximum shall be extended for any child who has been deemed physically or mentally incompetent by a state court of competent jurisdiction (or by the plan), for as long as such incompetency exists. (f) If, at the time of such participant's death while in city employment, there is neither a spouse to whom the participant has been married for at least one year preceding his death nor a dependent child, each dependent parent shall receive a monthly allowance of 20 percent of such average final compensation; provided, the plan finds that such parent was dependent upon such participant for at least 30 percent of his financial support at time of death. (g) In the event no allowance is payable under subsections (a) through (f) of this section on account of the death of a participant or that all the allowances provided for in subsections (a) through (f) of this section, payable on account of the death of a participant, terminate before there has been paid an aggregate amount equal to his accumulated contributions standing to his credit in the plan at the time of his death, the excess of such accumulated contributions over such aggregate amount of allowance payments, if any, shall be paid to such beneficiary as he shall have nominated by written designation duly executed and filed with the plan. If there be no such designated beneficiary surviving at termination, such excess shall be paid to the participant's estate. (Code 1978, §17-82; Ord. No. 2002-12, 6-11-2002; Ord. No. , ) Sec. 66-167. Refund of accumulated contributions. In the event of the termination of a participant's employment with the city, other than by retirement or death, or, in the case of a participant who has completed fewer than five years of credited service,is not eligible to receive a deferred retirement allowance pursuant to section 66-168, in the event of the termination of his status as an eligible employee, he may elect to receive in a lump sum a payment of his accumulated contributions at date of such termination of employment. Any such payment shall cancel any rights of the participant to receive a deferred monthly retirement allowance under the provisions of section 66-168, and shall cancel any period of credited service previously credited to the participant. (Code 1978, § 17-92) Sec. 66-168. Deferred retirement allowance. (a) Subject to the provisions of section 66-171, in the event of the termination of a participant's employment with the city, by a participant whose initial date of employment for the city as an eligible employee is prior to July 1, 2014, other than by death, prior to his retirement hereunder but after he has completed five or more years of credited service, there shall be paid to such participant a monthly retirement allowance determined as hereinbelow provided. Su•'ect to the provisions of section 66-171, in the event of the termination of em e to ment with the cit . a partici.ant whose initial date of employment for the cit as an eligible em.lo ee is after June 30. 2014. other than by death. 'rior to his retirement hereunder but after he has completed seven or more years of credited service, there shall be paid to such participant a monthly retirement allowance determined as hereinbelow provided. The monthly allowance shall commence, at the election of the participant, on the first day of any month coincident with or following the later of his date of termination of employment or his attainment of the age of 50, but in no event later than his attainment of his normal retirement date. Payment of the retirement allowance shall continue on the first day of each month thereafter during his lifetime; provided, however, that any participant shall have the right, at any time after termination of employment and prior to the commencement of payment of a deferred retirement allowance, to receive in a lump sum his accumulated contributions as of the date such payment is requested, but such payment shall terminate the participant's rights to a deferred retirement allowance under this section, and, except as otherwise provided in this article, shall cancel any period of credited service previously credited to him. In the case of a participant who is a permanent, part-time employee and an eligible employee, the requirement of five years of credited service stated above shall be waived and replaced with a requirement that the individual has earned at least three months of service credit in at least five different plan years. In the case of a participant who elected to reinstate service credit as provided for in subsection (f) of the definition of "credited service" in section 66-41, the requirement of five or seven years of credited service stated above shall be waived. (b) The amount of the monthly retirement allowance payable to an eligible participant under the provisions of this section shall be determined in the same manner as provided in section 66-101, except that credited service and average final compensation shall be determined as of the date of the participant's termination of employment, and if the date of commencement of the monthly retirement allowance is prior to the participant's normal retirement date: (1) For a participant who became an eligible employee on or before March 31, 1983, the amount of the monthly retirement allowance so determined shall be reduced by one-sixth of one percent for each complete month in the period between such commencement date and the participant's normal retirement date; (2) For a participant who became an eligible employee on or after April 1, 1983, the amount of the monthly retirement allowance so determined shall be reduced by five-twelfths of one percent for each complete month in the period between such commencement date and the participant's normal retirement date. (3) Effective January 1, 2004, for a participant who became an eligible employee on or after April 1, 1983, and who retires on or after reaching age 50 and who has completed 30 or more years of credited service, not including unused sick time but including at least one month of "qualified 2004 service" credited service and average final compensation shall be computed as of the participant's early retirement date and the amount of the monthly retirement allowance so determined shall be reduced by one-sixth of one percent for each complete month in the period between the participant's early retirement date and normal retirement date. (c) Any participant becoming entitled to an allowance under the provisions of this section shall be entitled to elect, at the time of commencement of such allowance, to have his allowance paid under option 1 or option 2 (if applicable) of section 66-126. (Code 1978, § 17-93; Ord. No. 2003-25, 12-9-2003; Ord. No. 2004-2, 3-9-2004; Ord. No. 2004-20, 10-12-2004) Sec. 66-232. Termination of plan. (a) The city expects to continue the plan indefinitely. However, the city reserves the right to terminate the plan at any time by action of council. For the purposes of this section, a complete discontinuation of the city's contributions shall constitute termination of the plan. If the city terminates the plan, or it is otherwise terminated, the rights of the then participants to benefits then accrued shall be nonforfeitable to the extent such benefits are then funded and the trustee shall continue to administer the fund as instructed by the committee in accordance with the provisions hereof, and the expenses of the trustee shall be paid out of the assets then remaining in the fund. (b) In the event of termination of the plan as provided in this section, the fund shall be administered for the sole benefit of the then participants, any contingent annuitants then , receiving benefits in accordance with division 5 or division 6 of this article, and any beneficiaries or contingent annuitants entitled to receive future benefits in accordance with division 5 or division 6 of this article. (c) Subject to the provisions of subsection (d) of this section, in the event of the termination of the plan the fund shall be allocated by the committee in an equitable manner, subject to the approval of the Internal Revenue Service, to provide benefits for persons described in subsection (b) of this section in accordance with the provisions of the plan but based upon reserves as of the date of termination of the plan and in the following order: (1) First, for the benefit of all participants, to the extent of their accumulated contributions less any retirement allowance payments already received, other than payments of a disability retirement allowance prior to the participant's attainment of his normal retirement age. If the fund is insufficient to make this allocation in full, the city shall make an additional contribution to increase the fund to the necessary amount; (2) If any balance of the fund remains after the allocations provided for in subsection (c)(1) of this section, then for the benefit of any participants or contingent annuitants who are in receipt of retirement allowances under the plan and any participants who have not yet retired but either have attained the age of 50 provided they have completed five years of credited service or completed 25 years of credited service, have met the requirements for an early retirement allowance pursuant to section 66-82, to the extent of any excess of the then reserves for their respective retirement allowances, or the retirement allowances to which they would have been entitled if they had retired on the date of termination of the plan, over their respective allocations under subsection (c)(1) of this section. If the balance remaining in the fund after the allocations under subsection (c)(1) above is insufficient to permit the allocation in full of the amounts provided for under this subsection (c)(2) of this section, the allocation of the fund under this subsection (c)(2) of this section among the distributees entitled thereto shall be in proportion to the respective individual allocations to which they would otherwise have been entitled; (3) If any balance of the fund remains after the allocations provided for in subsections (c)(1) and (c)(2) of this section, then for the benefit of all participants other than those referred to in subsection (c)(2) of this section, to the extent of any excess of the then reserves for their respective accrued retirement allowances over their respective allocations under subsection (c)(1) of this section. If the balance remaining in the fund after the allocations under subsections (c)(1) and (c)(2) of this section is insufficient to permit the allocation in full of the amounts provided for under this subsection, the allocation of the fund under this subsection among the distributees entitled thereto shall be in proportion to the respective individual allocations to which they would otherwise have been entitled; (4) If any balance of the fund remains after the allocations provided for in subsections (c)(1), (c)(2) and (c)(3) of this section, as certified by a professionally qualified actuary selected by council, then and not otherwise the trustee shall return such balance to the city. (d) The allocation of the fund provided for in this section may be carried out, as determined by the committee, through the continuance of the fund or the fund may be liquidated at any time and insurance company contracts purchased to provide the benefits determined in accordance with this section, or the fund may be distributed in lump sum payments to the persons entitled to such benefits, or a combination of such methods may be employed. (e) Restrictions. (1) The foregoing provisions to the contrary notwithstanding, upon the occurrence of the conditions described in subsection (e)(2) of this section, the city's contributions which are used for the benefit of any employee who is among the 25 highest paid employees of the city at the time the plan was established and whose anticipated annual retirement allowance at his normal retirement date would exceed $1,500.00 shall be restricted in accordance with subsection (e)(3) of this section. (2) The restrictions described in subsection (e)(3) of this section become applicable if: a. The benefits of an employee described in subsection (e)(1) of this section become payable within ten years after the establishment of the plan; or b. The benefits of an employee described in subsection (e)(1) of this section become payable after the plan has been in effect for ten years, and the full current costs of the plan for the first ten years have not been funded. In the case of an employee described in subsection (e)(2)a. of this section, the restrictions will remain applicable until the plan has been in effect for ten years, but if at that time the full current costs have been funded the restrictions will no longer apply to the benefits payable to such an employee. In the case of an employee described in subsections (e)(2)a. and b. of this section, if at the end of the first ten years the full current costs are not met, the restrictions will continue to apply until the full current costs are funded for the first time. (3) The city contributions which may be used for the benefit of an employee described in subsection (e)(1) shall not exceed the greater of $20,000.00 or 20 percent of the first $50,000.00 of the average annual compensation of such employee over the last five years multiplied by the number of years between the date of the establishment of the plan and: a. The date of the termination of the plan; b. In the case of an employee described in subsection (e)(2)b. of this section, the date the benefit of the employee becomes payable, if before the date of the termination of the plan; or c. In the case of an employee described in subsection (e)(2)b. of this section, the date of the failure to meet the full current costs of the plan. However, if the full current costs of the plan have not been met on the date described in subsection (e)(3)a. or b. of this section, whichever is applicable, the date of the failure to meet such full current costs shall be substituted for the date referred to in subsection (e)(3)a. or b. of this section. For purposes of determining the contributions which may be used for the benefit of an employee when subsection (e)(3)b. of this section applies. the number of years taken into account may be recomputed for each year if the full current costs of the plan are met for such year. (4) If the plan is amended so as to increase substantially the extent of possible discrimination as to contributions and as to benefits actually payable in event of the subsequent termination of the plan or the subsequent discontinuance of contributions thereunder, then the provisions of subsection (e) of this section shall be applied to the plan as if it were a new plan established on the date of such change. However, the provision in subsection (e)(3) of this section that the unrestricted amount of employer contributions on behalf of any employee is at least $20,000.00 is applicable to the aggregate amount contributed by the city on behalf of such employee from the date of establishment of the original plan, and, for purposes of determining if the employee's anticipated annual pension exceeds $1,500.00, both the city's contributions on the employee's behalf prior to the date of the change in the plan and those expected to be made on his behalf subsequent to the date of the change (based on the employee's rate of compensation on the date of the change) are to be taken into account. (5) If it shall be determined by statute, ruling by the Commissioner of Internal Revenue, or otherwise, that the provisions of this section are not then necessary to qualify for the plan under the Internal Revenue Code, this section shall be ineffective without the necessity of further amendment of the plan. (Code 1978, § 17-127) This ordinance shall become effective as provided by law. Introduced: May 27, 2014 City Council hearing: June 10, 2014 Adopted: June 10, 2014 Mayor / &' ATTEST: i/ City Clerk Votes Mayor Silverthorne Aye Councilman DeMarco Aye Councilman Drummond Nay Councilman Greenfield Aye Councilman Meyer Nay Councilmember Schmidt Nay Councilman Stombres Aye