2004-07
ORDINANCE NO. 2004-07
AN ORDINANCE OF THE CITY OF AVENTURA, FLORIDA
AMENDING THE CODE BY ENACTING A NEW POLICE
PENSION PLAN AND TRUST FUND; PROVIDING TERMS
FOR IMPLEMENTATION: PROVIDING FOR
SEVERABILITY; PROVIDING FOR CODIFICATION;
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Aventura has determined that the creation of a local law
pension plan is in the best interests of the police officers and citizens of the City of
Aventura; and
WHEREAS, the City Commission of the City of Aventura concurs that
establishment of a local law pension plan is the most efficient means of complying with
state law and is in the best interests of the citizens and taxpayers of the City;
NOW, THEREFORE, BE IT ORDAINED by the City Commission of the City of
Aventura:
Section 1. Section
of the Aventura City Code is hereby enacted as
follows:
SECTION -"
RETIREMENT PLAN ESTABLISHED: NAME: OPERATIVE DATE:
MINIMUM BENEFITS
A.
A Retirement Plan is hereby established and placed under the exclusive
administration and management of a Board of Trustees for the purpose of
providing retirement benefits pursuant to the provisions of this Ordinance
and for defraying the reasonable expenses of the Retirement Plan.
B.
The Retirement Plan established by this Ordinance shall be known as the
City of Aventura Police Officers' Retirement Plan.
C.
The Retirement Plan shall have an effective date of October 1, 2003.
D.
The Plan shall provide not less than the minimum level of benefits required
by Chapter 185, Florida Statutes.
SECTION -" DEFINITIONS.
The following words and phrases as used in this Ordinance shall have the
following meanings:
A.
Accumulated Contributions
shall mean the sum of all amounts
deducted from a member's
compensation or picked up on
behalf of a member.
B.
Active Membership
shall mean membership in the
Retirement Plan as an employee.
C.
Actuarial Equivalent
shall mean that any benefit
payable under the terms of this
system other than the normal form
of benefit shall have the same
actuarial present value on the
date the payment commences as
the normal form of benefit. For
purposes of establishing the
actuarial present value of any
form of benefit, other than a lump
sum distribution, all future
payments shall be discounted for
interest and mortality using the
1983 group annuity mortality table
for males, with ages set back one
year for females. In the case of a
lump sum distribution, the
actuarial present value shall be
determined on the basis of the
same mortality rates as set forth
in this Section.
D.
And
shall have a conjunctive meaning.
E.
Beneficiarv
shall mean any person receiving a
retirement allowance or other
benefit from the Retirement Plan.
F. Benefit
G. Board or Board of Trustees
H. Qj!y
I. Credited Service
shall mean a retirement allowance
or other payment provided by the
Retirement Plan.
shall mean the Board of Trustees
of the Retirement Plan.
shall mean the City of Aventura,
Florida.
shall mean membership credit
upon which a member's eligibility
to receive benefits under the
Retirement Plan is based or upon
which the amount of such benefits
is to be determined.
J.
Disabilitv
shall mean the permanent and
total incapacity to perform regular
and continuous duties as a police
officer for the City of Aventura.
The term regular and continuous
as used in this definition shall not
require that a police officer be
able to perform all of the duties
set forth in the job description, but
shall mean the ability to perform
work within the classification of
police officer for which a position
has been made available by the
City, consistent with the physical
or mental health of the member.
K.
Earlv Service Retirement
shall mean a member's
withdrawal from service under
circumstances permitting the
payment of a retirement benefit
before such member is eligible
for normal service retirement.
L.
Earnable Compensation
shall mean a member's base pay
for regular hours worked as an
employee, overtime pay, amounts
paid for administrative leave,
bereavement leave,
compensatory time paid in lieu of
regular wages, court time, Garcia
days for K-9 service, holiday leave
taken in lieu of regular pay, job
basis leave, jury duty, light duty,
paid military leave, personal leave
taken in lieu of regular pay, storm
leave, storm/hurricane pay,
suspension with pay, pay for time
off due on the job injury, vacation
leave taken in lieu of regular pay,
and workers' compensation paid
by the City; and, excluding pay
received for off-duty details for
third parties, whether or not the
payment is made through the City.
Earnable compensation shall not
include payouts of accumulated
leave taken as cash upon
separation from service.
Retroactive payments shall be
credited to the calendar year in
which such payments would have
been received had they been
timely paid. Compensation for any
plan year shall not include any
amounts in excess of the Internal
Revenue Code Section 401 (a)(17)
limitation as adjusted for change
in the cost of living in the manner
prescribed by the IRC, Section
401 (a)(17)(B).
M.
Emplovee
shall mean a police officer
presently employed by the City. A
police officer who is reclassified,
due to disability, as a City
employee outside of the police
service shall have membership
rights in the Retirement Plan
applicable to that new class of
employees.
N.
Final Monthlv Compensation
shall mean a member's average
monthly rate of earnable
compensation from the City during
the five (5) best years out of the
last ten (10) years of employment
; provided that if a member has
been employed for fewer than five
(5) years, such average shall be
taken over the period of actual
employment.
O.
Police officer
shall mean any person for whom
contributions are made or picked
up to the retirement plan as
required by this ordinance and
who is certified as a police officer
as a condition of employment in
accordance with the provisions of
Section 943.1395, Fla. Stat., and
who is vested with the authority to
bear arms and make arrests, and
whose primary responsibility is the
prevention and detection of crime
or the enforcement of the penal,
criminal, traffic, or highway laws of
the state, including supervisory
and managerial personnel.
P. Fund
Q. M.êY
R. Member
shall mean the City of Aventura
Police Officers' Retirement Plan.
shall mean a permissive term.
shall mean a police officer actively
employed by the City for whom
contributions to the Retirement
Plan are made as required by this
Ordinance. Members shall also
include retired police officers. The
chief of police and any such other
managerial ranks, as may be
permitted by law, shall have the
option to participate in this plan or
another city sponsored retirement
plan.
S.
Option
shall mean one of several choices
available to members with respect
to the manner in which a
retirement allowance may be paid.
T.
Pension
shall mean a series of periodic
payments, usually for life, payable
in monthly installments.
U.
Pick-Up Amounts
shall mean employer contributions
derived from a member's earnable
compensation through a reduction
in the member's earnable
compensation.
v.
Plan Year
shall mean the period from
October 1 through September 30
of the following year.
w.
Retirement
shall mean a member's
withdrawal from active
membership with a benefit
granted to the member pursuant
to the provisions of this
Ordinance.
X. Retirement Allowance
Y. Retirement Plan
Z. Service
AA. Service Retirement
shall mean a pension provided by
the Retirement Plan.
shall mean the City of Aventura
Police Officers' Retirement Plan.
shall mean active service as an
employee.
shall mean a member's retirement
from active service under
circumstances permitting payment
of a retirement allowance without
reduction because of age or
length of service and without
special qualifications such as
disability. Service retirement shall
be considered normal retirement.
BB.
Trustee
shall mean a member of the
Board of Trustees of the
Retirement Plan.
CC.
Vested Benefit
shall mean an immediate or
deferred benefit to which a
member has gained a non-
forfeitable right under the
provisions of this Ordinance.
DO.
Minimum Vestinq
shall mean ten (10) years of
credited service before the
member is entitled to retirement
benefits except for service-
incurred disability retirement
income or service incurred death
benefits.
SECTION -' ADMINISTRATION OF THE RETIREMENT PLAN.
A.
The sole and exclusive administration of, and the responsibility for the
proper, effective operation of the Retirement Plan and for implementing the
provisions of this Ordinance is vested in a Board of Trustees.
B.
The Board of Trustees shall consist of five (5) persons; two (2) of whom
shall be legal residents of the City of Aventura and who shall be appointed
by the City Commission from a list provided by the City Manager. Two (2)
members of the Board of Trustees shall be police officers elected by a
majority of the police officers who are active members of the plan. A fifth
member of the Board shall be chosen by a majority of the other four (4)
Trustees, and such person's name shall be submitted to the City
Commission for appointment. The City Commission shall appoint the fifth
member selected by the other four (4) Trustees as a ministerial duty.
C.
All Trustees shall serve a term of two (2) years. If a vacancy shall occur
prior to the expiration of a member's term, a replacement member shall be
chosen in the same manner as the person who has left office. A
replacement Trustee shall serve a full term measured from the date of
replacement. All Trustees shall serve until their replacements are
selected.
D.
The Board of Trustees shall prescribe a uniform election procedure for the
selection of the active member Trustees.
E.
All Trustees shall serve without compensation, but they shall be
reimbursed from the Fund for all necessary expenses authorized by the
Board, including, but not limited to reimbursement for leave time used for
educational conferences approved by the Board. The Board shall be
permitted to prescribe uniform rules for reimbursement for travel
expenditures, consistent with City travel policy.
F.
The Board of Trustees shall annually select a chairman and a secretary
who shall execute all documents on behalf of the Board.
G.
A majority of the members of the Board shall constitute a quorum for the
transaction of business and shall have full power to act under the terms of
the Plan. Three (3) concurring votes shall be required of the Board to take
action.
H.
The Board shall keep minutes of all meetings and a record of any action
taken by the Board shall be kept in written form and maintained by the
Board.
I.
The Board of Trustees shall have the authority to make such uniform rules
and regulations and to take such action as may be necessary to carry out
the provisions of the Plan and all decisions of the Board of Trustees, made
in good faith, shall be final, binding and conclusive on all parties.
J.
The Board of Trustees shall be deemed the named fiduciary of the Plan
and shall discharge its responsibilities solely in the interest of the members
and beneficiaries of the Plan for the exclusive purpose of providing
benefits to the members and their beneficiaries and to defray the
reasonable expenses of the Plan. The Trustees shall exercise those
fiduciary responsibilities with the care, skill, prudence and diligence under
the circumstances then prevailing that a prudent person acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of a similar character and with similar aims.
K.
The Board of Trustees shall have the following administrative duties:
1.
To maintain such records as are necessary for calculating and
distributing retirement benefits;
2.
3.
4.
5.
6.
7.
8.
9.
To maintain such records as are necessary for financial accounting
and reporting of Retirement Plan funds;
To maintain such records as are necessary for actuarial evaluation
of the Retirement Plan, including investigations into the mortality,
service and compensation experience of its members and
beneficiaries;
To compile such other administrative or investment information as is
necessary for the management of the Retirement Plan;
To process, certify and/or respond to all correspondence, bills and
statements received by the Retirement Plan, as well as all
applications submitted to the Board for retirement benefits;
To establish and maintain communication with City departments and
other agencies of government as is necessary for the management
of the Retirement Plan, including preparing, filing and distributing
such reports and information as are required by law to be prepared,
filed or distributed on behalf of the Retirement Plan;
To determine all questions relating to and process all applications
for eligibility, participation and benefits;
To distribute at regular intervals to employees, a comprehensive
Summary Plan Description and periodic reports regarding the
financial and actuarial status of the Plan;
To retain and compensate such professional and technical
experience as is necessary to fulfill its fiduciary responsibilities;
10.
To make recommendations to the City Manager regarding changes
in the provisions of the Plan;
11.
To assure the prompt deposit of all member contributions, City
contributions, Chapter 185 monies, and investment earnings;
12.
To establish a uniform set of rules and regulations for the
management of the Trust;
13.
To take such other action as the Trustees shall deem, in their sole
and exclusive discretion, as being necessary for the efficient
management of the Plan.
L.
The Board shall have the authority to retain its own legal counsel,
accountants, actuaries and other professional advisors to assist the Board
in the performance of its duties. The Board may act without independent
investigation upon the professional advice of the advisors so retained.
M.
The Board is authorized to prosecute or defend actions, claims or
proceedings of any nature or kind for the protection of the Fund assets or
for the protection of the Board in the performance of its duties.
N.
Neither the Board nor any of its individual members shall have any
personal liability for any action taken in good faith. The Trustees
individually and the Board as a whole shall be entitled to the protections in
Section 768.28, Fla. Stat. The Trustees shall also be authorized to
purchase from the assets of the Fund, errors and omission insurance to
protect the Trustees in the performance of their duties, as well as a fidelity
bond with minimum coverage of $500,000. Such insurance shall not
provide protection against a Trustee's fraud, intentional misrepresentation,
willful misconduct or gross negligence.
o.
No Trustee shall be responsible at his or her own expense, to take legal
action to correct the misconduct of any other member of the Board of
Trustees. A Trustee shall have an affirmative obligation, however,
to publicly reveal any misfeasance, malfeasance or nonfeasance by a co-
Trustee, and upon making such revelation in a public meeting, shall be
relieved further individual responsibility of the actions of that co-Trustee.
SECTION -' CONTRIBUTIONS.
A.
The City shall pick-up, rather than deduct from each member's pay,
beginning with the date of employment, six and three tenths (6.3%)percent
of the member's earnable compensation. The monies so picked-up shall
be deposited in the Fund immediately after each pay period. An account
record shall be maintained continuously for each member. Pick-up
contributions shall continue until death, disability or termination of service,
whichever shall occur first. Contributions shall remain in the Fund unless
withdrawn as provided in the Plan. No member shall have the option to
choose to receive the contributed amounts directly instead of having them
paid by the City directly to the Plan. All such pick-up contributions by the
City shall be deemed and be considered as part of the member's
accumulated contributions and subject to all provisions of the Plan
pertaining to accumulated contributions of members. The intent of this
provision is to comply with Section 414(h)(2) of the Internal Revenue Code.
For the purpose of accruing and calculating pension benefits, and for all
other purposes of calculating wage related benefits and calculations, the
amounts picked up under this section shall be considered part of the
earnable compensation of a member.
B.
All benefits payable under this Plan are in lieu of a refund of accumulated
contributions. In any event, however, each member shall be guaranteed
the payment of benefits at least equal in total amount to the member's
accumulated contributions.
C.
Any monies received or receivable by reason of the laws of the State of
Florida for the express purpose of funding or paying for retirement benefits
for police officers shall be deposited into the Fund within five (5) business
days of receipt by the City. State monies shall be used as prescribed by
law.
D.
The City shall make such contribution under the Florida Protection of
Public Employee Retirement Benefits Act and Chapter 185, Florida
Statutes, which together with contributions picked-up on behalf of
members, Plan earnings and state insurance premium tax rebates, will
maintain the Fund on a sound actuarial basis, as determined by the Board
in conjunction with its actuary. The City's contributions shall be deposited
at least quarterly.
E.
Expenses, charges and fees attributable to the management of the Plan
shall be paid from the Fund.
F.
The City shall have no right, title or interest in the Fund or in any part
thereof, and no contribution made thereto shall revert to the City, except
such part of the Fund, if any, which remains therein after the satisfaction of
all liabilities to persons entitled to benefits under the Plan.
SECTION -' FUND MANAGEMENT AND INVESTMENTS.
A.
The Plan is hereby established, pursuant to authority granted in the City
Charter, as an irrevocable trust fund into which shall be deposited all of the
assets of the Plan of every kind and description.
B.
The actual custody and supervision of the Fund shall be vested in the
Board. All assets of the Plan may be commingled, provided that accurate
records are maintained at all times reflecting the financial composition of
the Fund, including accurate accounts regarding the following:
1.
Current amounts of accumulated contributions of members, both on
an individual and aggregate basis;
2.
3.
4.
6.
C.
Receipts and disbursements;
Benefits payments;
All contributions from the City;
5.
All contributions from the State of Florida pursuant to Chapter 185;
All interest, dividends, gains and losses from investment;
7.
Such other entries as may be required for a clear, complete financial
report of the status of the Fund.
The Board shall establish a written investment policy, with the advice and
counsel of such advisors as the Board deems necessary, and said
investment policy shall set forth the types of securities and other types of
investments into which shall be placed the assets of the Fund. The policy
shall further set forth appropriate limitations on those investments,
including, but not limited to, anticipated rate of return, quality of investment,
class of investment and acceptable risk. The Board shall have the
authority to invest and reinvest the assets of the Plan in such securities or
property, real or personal, as the Board deems appropriate, including, but
not limited to:
1.
Bonds, notes, or other obligations of the United States or any of its
agencies, or those guaranteed by the United States or for which the
credit of the United States is pledged for the payment of the
principal and interest or dividends thereof;
2.
Accounts or certificates of deposit in any bank or other financial
institution incorporated under the laws of the State of Florida, or any
national bank organized under the laws of the United States, or
authorized to do business and situated in the State of Florida, to the
extent that such certificates of deposit are secured by the deposits
of securities of the United States government;
3.
Notes secured by first mortgages on real property insured or
guaranteed by the Federal Housing Administration or the Veterans
Administration;
4.
Interest-bearing obligations with a fixed maturity of any corporation
organized under the laws of the United States, any state or
organized territory of the United States and the District of Columbia;
D.
E.
F.
provided that such obligations are rated by at least two (2) nationally
recognized ratings services in anyone of the four highest
classifications approved by the Comptroller of the Currency for the
investment of funds of national banks or, if only one nationally
recognized ratings service shall rate such obligations, such ratings
service must have rated such obligation in anyone of the four
highest rating classifications as set forth in this subsection;
5.
Bonds issued by the State of Israel;
6.
Real estate, which may be in the form of commingled ownership
and financial institutional futures, listed options, stock index futures,
which may be used under specific instruction of mangers;
7.
Common stock, preferred stock and interest- bearing obligations of
domestic corporations having an option to convert into common
stock issued by a corporation organized under the laws of the
United States, any state or organized territory of the United States
or any state or organized territory of the United States and the
District of Columbia.
8.
Index funds and collective investment funds.
9.
Foreign securities, not to exceed ten (10%) percent of the portfolio
at cost.
10.
Any other investment permitted by law.
The Board may determine the percentage of each type of investment to be
held.
The Board shall be authorized to retain one of more money managers for
the management of property held in the Plan, and the Board shall convey
property of the Plan to such money managers for investment and
reinvestment in accordance with the terms of this Ordinance and the
investment policies established by the Board. Any such money manager
contracting with the Board for the investment of its assets shall be deemed
a fiduciary of the Plan.
The Board shall have a continuing duty to observe and evaluate the
performance of any money manager retained by the Board. The Board
shall, in selecting a money manager or other investment counsel, exercise
all judgment and care in the circumstances then prevailing which persons
G.
H.
SECTION
A.
B.
C.
D.
of prudence, discretion and intelligence exercise in the management of
their own affairs.
The Board shall require that any money manager or other agent who has
custody or control of any property of the Plan to keep accurate and
detailed accounts of all investments, receipts, disbursements and other
transactions pertaining to such Trust property, and the Board shall further
require that all accounts, books and records pertaining thereto be open for
inspecting and audit at all reasonable times by the City, the Board or the
designees.
The Board shall also keep accurate and detailed accounts of all
investments, receipts, disbursements or other transactions pertaining to
the Trust property and all accounts, books and records pertaining thereto
shall be open to inspection and audit at all reasonable times by the City or
its designees.
, SERVICE RETIREMENT BENEFIT.
A member may retire on the first day of the month coincident with or next
following the earlier of: the date upon which the member completes
twenty-five (25) years of credited service, regardless of age; or the date
upon which the member attains age fifty-five (55) with ten (10) years of
credited service. There shall be no mandatory retirement age.
A normal retirement benefit shall be determined by multiplying three (3%)
percent of final monthly compensation by the number of years of credited
service to a maximum of eighty percent (80%) for the first forty (40) years
of service. For all subsequent years of service, the normal retirement
benefit shall be determined by multiplying two (2%) percent of final monthly
compensation by each year in excess of forty (40) years of service.
A service retirement benefit shall be payable on the first day of each
month. The benefit shall commence on the first day of the month
coincident with or next following the member's actual retirement and shall
continue until the death of the member. In the event that a member shall
retire in the middle of the month, the retirement benefit shall commence on
the first day of the following month, but the member shall receive credit for
the partial month preceding the actual date that payment commenced.
Early retirement shall be available to a member on the first day of the
month coincident with or next following attainment of age forty-five (45) and
a completion of ten (10) years of credited service.
E.
F.
G.
H.
A member electing early retirement may receive either a deferred payment
or an immediate payment under the following formula:
1.
A deferred payment shall commence on the normal retirement date
of the member. This shall mean the date upon which the member
attains age fifty-five (55) with ten (10) years of credited service. A
deferred payment shall be determined in the same manner as a
normal retirement, except that final monthly compensation and
credited service shall be based upon the early retirement date.
2.
An immediate retirement benefit may commence on the first day of
the month coincident with or next following the date of early
retirement. The benefit shall be determined for normal retirement
and then actuarially reduced for the number of actual years and
months at which the starting date of the benefit precedes the normal
retirement date. The normal retirement date shall be the date upon
which the member would have attained age fifty-five (55) with ten
(10) years of credited service. The actuarial reduction factor applied
to the benefit shall be three (3%) percent for each year by which the
starting date of the benefit precedes the normal retirement date.
The payment of the early retirement income shall be subject to the same
conditions as normal retirement income.
In the event a member elects early retirement, the benefit formula in effect
on the early retirement date shall be applicable to the member.
A member entitled to a normal or early service retirement benefit shall
have the right at any time prior to the date upon which the first payment is
received to elect to have the benefit payable under one of the options
provided in this Plan. A member shall be permitted to revoke any such
election and to elect a new option at any time prior to the receipt of the first
payment. Each retirement option shall be the actuarial equivalent of the
other retirement options available. Election of the retirement option shall
be on a form prescribed by the Board.
1.
Life Annuity.
A member may elect to receive an enhanced annuity payable for
life. There shall be no guaranteed payment in excess of the
accumulated contributions of the member, which contributions shall
be paid to the member's estate or designated beneficiary should the
member die prior to receiving payments equal to said contributions.
2.
Joint and Last Survivor Option.
A member may elect to receive an actuarially reduced benefit for life
and to have the benefit (or a designated fraction of the benefit)
continued after the member's death and during the lifetime of a
designated survivor. A designated survivor may be any natural
person, but need not be the spouse of the member. In the event
that the designated survivor dies, or in the case of a spouse, the
marriage is dissolved, before the member's benefit payments begin,
this option shall be canceled automatically and a retirement income
shall be payable to the member as if the election had never been
made. A member may, at that time, elect an unreduced life annuity
or a ten (10) year certain and life thereafter benefit.
3.
Ten (10) Year Certain and Life Thereafter.
A member may elect to receive an unreduced life annuity with one
hundred twenty (120) guaranteed payments. If the member shall
die prior to receiving one hundred twenty (120) payments, the
remaining benefits shall be paid to the beneficiary designated by the
member. In the event that no beneficiary has been designated, the
member's estate shall be the recipient of the remaining balance of
payments. This shall be the normal form of retirement.
4.
Other Options.
The Retirees may, by uniform rule, establish any other optional form
of payment, which is the actuarial equivalent of any other form of
retirement provided for in this Plan, or which optional form of
payment is cost neutral to the Plan. An interest only option or an
option providing guaranteed payments over a period in excess of
twenty (20) years or beyond age eighty-five (85) may not be offered.
The Board, in its sale discretion, may make a lump sum distribution
which is the actuarial equivalent of the monthly benefit if the lump
sum is not greater than $1,750.
5.
Designated Beneficiary.
Upon failure of a member to designate a beneficiary, any monies
owed to the member shall be paid to the member's estate. Any
member may designate a choice of one or more persons, named
sequentially or jointly, as his or her beneficiary or beneficiaries.
SECTION_, BUY.BACK FOR MILITARY SERVICE.
A.
Any member of the Plan who is employed by the City prior to entry into
military service and who takes a leave of absence for the purpose of
entering into military service in the Armed Forces of the United States and
thereafter re-enters the employ of the City, and is vested, shall be entitled
to purchase service credits for the period of absence by contributing the
actuarial cost of the benefit which would have been earned had the
member continued in City employment for the period of military service
based on the salary in effect on the date of the leave of absence, for each
year being purchased; except to the extent that state or federal law shall
require the provision of service credit without a member contribution.
There shall be no credit for military service prior to City employment as a
police officer.
B.
A member who is receiving, or will receive the pension benefit for military
service in any other pension plan supported by public funds, excluding a
military pension, may not use that service for this pension plan. A member
who is receiving, or will receive any other pension in which time served in
the military was used by the employee in that other pension plan shall not
be eligible for military buy-back as provided in this section.
C.
The contribution for military buy-back required of the employee may be
made in one lump sum or may be made by payroll deductions in
installments for a period of time which shall not exceed the number of
years being purchased. An employee making installment payments shall
complete all required payments prior to payment of any benefit under this
section. If installment payments are not completed at the time an
employee retires, the employee shall not receive military credit for the
remaining period for which payments were not made. An employee
making installment payments shall pay interest at a uniform rate as
determined by the Board.
SECTION -' DISABILITY.
A.
A member shall be disabled under the terms of the Plan if the member has
suffered an illness, injury or disease which renders the member
permanently and totally incapacitated, physically or mentally, from regular
and continuous duty as police officer. Disability shall not be determined
based solely on the fact that a member cannot perform all of the duties of a
police officer as set forth in the job description. The definition of disability
shall be applied to an individual who because of illness, injury, or disease,
cannot perform any job in the police department which is within the
member's physical or mental capabilities and further provided that a
vacancy exists which will be made available by the City. The City shall be
required to accommodate disabled workers in accordance with state and
federal law and shall not withhold assignment to vacant positions on the
basis that a member is not capable of performing all of the tasks of a police
officer. A disability benefit cannot be based on a condition which pre-
existed membership in the Plan unless the cause of the disability would
reasonably be expected to give rise to a disability in a person without the
pre-existing condition.
B.
A member shall be eligible for a service-incurred disability retirement from
the entry date into the Plan. A service-incurred disability retirement shall
mean that the disability arose as a result of an act occurring, or presumed
by law to have occurred, in the performance of service with the City.
D.
A member shall be eligible for a non-service incurred disability retirement
upon the completion of ten (10) years of credited service. A non-service
incurred disability shall be an illness, injury, or disease, which did not occur
as a result of an act in the performance of service with the City.
The service-incurred disability benefit shall be paid in equal monthly
installments in an amount equal to the member's accrued benefit, but not
less than forty-two (42%) percent of the member's final monthly
compensation as of the date of disability retirement. This benefit shall be
in addition to any short or long term disability benefit provided by the City;
but, shall be subject to offset for workers' compensation paid by the City as
permitted by law.
C.
E.
The non-service incurred disability benefit shall be paid on a monthly basis
in an amount equal to three (3%) percent of final monthly compensation
multiplied by the number of years of credited service, but shall not be less
than thirty (30%) percent of average monthly compensation. For the
purposes of a non-service incurred disability benefit, final monthly
compensation shall be determined as of the last day the member was
actively at work for the City.
F.
Disability benefits shall be paid on the first day of each month. No benefit
shall be paid until the Board of Trustees has actually considered and voted
upon entitlement to disability.
G.
Disability retirement income shall continue until the death of the member,
or recovery from disability and return to active police service. In the event
of the death of a member who is retired on a disability benefit and has not
received one hundred twenty (120) payments, the remaining unpaid
benefits shall be paid to a designated beneficiary selected by the member
and communicated to the Board on the form prescribed by the Board. In
the event that there is no designated beneficiary, the remaining unpaid
benefits shall be paid to the estate of the deceased member.
H.
The Board of Trustees shall have the continuing right to require disabled
members to submit to a medical examination to determine that the member
remains disabled. In order for a member to be deemed recovered, the
medical board must recommend to the Board of Trustees that the member
has sufficiently recovered to again engage in the duties of a police officer
and that the City has certified that it has a position within the police
department available for the member consistent with the member's medical
condition. The decision by the Board to examine some but not all disability
retirees shall not be deemed an abuse of the Board's discretion.
I.
Upon finding that a member is no longer disabled, the member shall return
to work at the same rank and position previously occupied and shall be
placed into the appropriate pay rate based on cost of living (COLA)and
merit increases which the member would have received but for the
disability, as determined by the City Manager. The member shall again
become an active member of the Plan if reemployment is accepted. There
shall be no creditable service for any period of time in which the member
was receiving disability benefits from the Plan. If the member declines
reemployment with the City, the member shall be deemed to have
terminated employment on the date that the disability commenced. In such
event, the member may receive a return of contributions unless, prior to
that date, the member has received disability benefits equal to or greater
than the amount of the accumulated contributions. If the member declines
re-employment within the City, the member shall be deemed to have
terminated employment on the date that the disability benefit commenced.
J.
No member shall be eligible to receive disability benefits from the
retirement plan during any period of time that the member is receiving a
salary from the City. This section shall not apply to the receipt of worker's
compensation benefits.
K.
Application for disability retirement shall be made on a form prescribed by
the Board of Trustees. The member shall execute such medical releases
as are necessary to permit the Board of Trustees to review the medical
records needed to determine the question of disability and to discuss said
records at a public meeting. Upon receipt of an application for disability,
the Board shall appoint a medical committee to be composed of not less
than one nor more than three licensed physicians. The applicant for
disability shall be required to submit to examination by the medical
committee. The medical committee shall report its findings to the Board of
the Trustees which shall include a determination, to the extent reasonably
possible, the origin of the disability, whether the disability is permanent,
and whether the disability is total. In making that determination, the
medical committee shall be bound by the definition of disability set forth in
this Plan.
L.
Upon receipt of the report of the medical committee, the Trustees shall
schedule a public hearing at which time the Board shall review all reports
of the medical committee, together with any such documentary evidence
as the applicant may wish to submit. The Board shall conduct a
preliminary determination as to whether the member is permanently and
totally disabled based upon the written documentation presented. If the
Board does not grant the application based on the written documentation, it
shall inform the member in writing of the reasons for the denial of the
application. The member may, within thirty (30) days of receipt of the
Board's preliminary denial, request a full evidentiary hearing before the
Board. Said hearing will be conducted consistent with the principles of due
process and the rules of evidence generally applicable to administrative
proceedings shall apply. The Board shall have the power to issue
subpoenas compelling the attendance of witnesses. At said hearing the
applicant may present such oral and written evidence as the applicant
deems necessary to establish its burden of proof. The Board may appoint
special counsel as an advocate to cross-examine witnesses and to offer
argument in opposition to the application. The attorney for the Board shall
not serve both as advocate and as advisor to the Board in the same
proceeding. The applicant and the Board shall have the right to examine
and cross-examine all witnesses. The decision of the Board shall be
based solely upon the evidence presented and the law applicable to this
Plan. Following the conclusion of the hearing, the Board shall render an
opinion in writing setting forth the reasons for the grant or denial of the
benefit. In the event that the disability benefit is denied, the applicant shall
have the right to judicial review by complaint for common law certiorari in
the Circuit Court of Miami-Dade County.
M.
The Board of Trustees may prescribe rules of procedure to implement the
provisions of this Plan relating to the conduct of disability hearings. The
Board shall prescribe rules to preserve the medical privacy rights of
applicants to the extent permitted by law.
N.
No member shall be granted a disability pension upon a determination by
the Board that the disability resulted from:
1.
Excessive and habitual use of drugs, intoxicants or narcotics;
2.
Injury or disease sustained while wilfully and illegally participating in
fights, riots, civil insurrections or while committing a crime;
3.
Injury or disease arising from service in the armed forces;
4.
Injury or disease sustained after employment as a police officer has
ended;
5.
Any occurrence arising from compensable employment unrelated to
regular City employment.
SECTION -' VESTING AND TERMINATION.
A.
Except as otherwise provided in this section, all rights to benefits under this
Plan shall terminate when a member's employment terminates for any
reason other than normal service retirement, early service retirement, or
disability retirement. Any member who completes ten (10) years of
credited service and whose contributions remain in the Plan has a vested
right to accrued benefits from the Plan. No member who has completed
less than ten (10) years of credited service shall have a vested interest in
any accrued benefit.
B.
A member who shall leave the service of the City prior to eligibility for
normal service retirement or early service retirement, but who has
completed ten (10) years of creditable service shall be entitled to receive
retirement benefits commencing at the regular normal service retirement
date. Such benefits will be based on final monthly compensation and
credited service as of the date of termination.
C.
Every member shall have the right to elect to receive, in lieu of all benefits
under the Plan, a return of the member's accumulated contributions, with
simple interest at the rate of three percent (3%).
D.
A member who elects a lump sum return of contributions releases and
discharges the City and the Retirement Plan from the right to any other
benefits from the Plan. A member who terminates service prior to
achieving a vested interest in the Plan shall have the right to receive a
refund of accumulated employee contributions, with simple interest at the
rate of three (3%) percent.
E.
If a member who has terminated service prior to retirement re-enters the
police department, the member will be entitled to reinstate the credited
service that the member had on the date of termination in lieu of the
benefits to which the member became entitled at time of separation. If, at
the time of separation, the member withdrew the member's accumulated
contributions, credited service can only be restored by repaying to the
pension plan an amount equal to the accumulated contributions plus
interest at the assumed rate of investment return from the date the
contributions were withdrawn.
SECTION -' DEATH BENEFITS.
A.
In the event of a member's death in the line of duty, the benefit, which shall
be payable commencing on the first day of the month coincident with or
next following the death of the member, shall be the greater of thirty (30%)
percent of the member's compensation at the time of death or the
member's accrued benefit.
B.
In the event of the death of a member from non-duty related causes prior
to the time of eligibility for early or normal retirement, the member's
designated beneficiary shall be paid from the Fund an amount equal to the
member's accumulated contributions. In the event of the death of a
member who has completed ten (10) or more years of credited service,
the member's designated beneficiaries shall be entitled to the benefits
otherwise payable at the early or normal retirement date.
C.
In the event of the death of a retiree, death benefits, if any, shall be paid in
accordance with the optional form of benefit chosen at the time of
retirement.
SECTION -' COMPLIANCE WITH THE INTERNAL REVENUE CODE.
It is the intention of the City and of the Board that the Plan remain at all
times a qualified plan, as that term is defined under the Internal Revenue
Code.
A.
B.
No member's annual benefit shall exceed the amounts permitted in Section
415 of the Internal Revenue Code.
C.
In no event may a member's retirement benefit be delayed beyond the
later of April 1 st following the calendar year in which the member attains
age seventy and one-half (70-1/2), or such later date as may be set by
terms of the Internal Revenue Code, or April 1 st of the year following the
calendar year in which the member retires.
When a distribution of the participant's entire interest is not made in a lump
sum, the distribution will be made in or more of the following ways: over
the life of the participant; over the life of the participant and designated
beneficiary; over a period certain not extending beyond the life expectancy
of the participant; or over a period certain not extending beyond the joint
life and last survivor expectancy of the participant and a designated
beneficiary.
D.
E.
If the distribution has commenced before the participant's death, the
remaining interest will be distributed at least as rapidly as under the
method of distribution being used as of the date of the participant's death.
The method of distribution, if the participant dies before distribution is
commenced, must satisfy the following requirements:
1.
Any remaining portion of the participant's interest that is not payable
to a beneficiary designated by the participant will be distributed
within five (5) years after the participant's death;
2.
Any portion of the participant's interest that is payable to a
beneficiary designated by the participant will be distributed either:
(I) within five (5) years after the participant's death; or (ii) over the
life of the beneficiary, or over a period certain not extending beyond
the life expectancy of the beneficiary, commencing not later than the
end of the calendar year following the calendar year in which the
participant died (or, if a designated beneficiary is the participant's
surviving spouse, commencing not later than the end of the
calendar year following the calendar year in which the participant
would have attained age seventy and one-half (70-1/2».
Direct transfers of eligible distributions shall be made as follows:
1.
General.
Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a distributee's election under this subsection, a
distributee may elect, at the time and in the manner prescribed by
the Board, to have any portion of an eligible rollover distribution
made directly to an eligible retirement plan specified by the
distributee in a direct rollover.
2.
Definitions.
(a)
Eligible Rollover Distribution. An Eligible Rollover Distribution
is any distribution of all or any portion of the balance to the
credit of a distributee, except that an eligible rollover
distribution does not include: any distribution that is one (1)
of a series of a substantially equal periodic payments (not
less frequently than annually) made for the life (or life
expectancy) of the distributee or the joint lives (or joint life
expectancies) of the distributee and the distributee's
designated beneficiary, or for a specified period of ten (10)
years or more; any distribution to the extent such distribution
is required under Section 401 (a)(9) of the Internal Revenue
Code; and the portion of any distribution that is not includable
in gross income.
(b)
Eligible Retirement Plan. An Eligible Retirement Plan is an
individual retirement account described in Section 408(a) of
the Internal Revenue Code, an Individual Retirement Annuity
described in Section 408(b) of the Internal Revenue Code, an
Annuity Plan described in Section 403(a) of the Internal
Revenue Code, a plan described in Section 457 of the
Internal revenue Code, or a Qualified Trust described in
Section 401 (a) of the Internal Revenue Code that accepts a
distributee's eligible rollover distribution. However, in the
case of an eligible rollover distribution to a surviving spouse,
an eligible retirement plan is an individual retirement account
or individual retirement annuity.
(c)
Distributee. A Distributee includes an employee or former
employee. In addition, the employee's or former employee's
surviving spouse is a distributee with regard to the interest of
the spouse.
(d)
Direct Rollover. A Direct Rollover is a payment by the Plan to
the eligible retirement plan specified by the distributee.
SECTION -' AMENDMENT OR TERMINATION OF THE SYSTEM.
A.
It is the intention of the City and the Board that this pension plan shall
constitute an irrevocable trust and no portion of the assets may revert to
the employer until all other obligations of the Plan, including the payment to
the last surviving member and beneficiary has been paid. No amendment
shall result in members receiving lower benefits than those in effect on the
date the member commenced service with the City.
B.
In the event of termination or partial termination of the Plan, each
participant's accrued pension benefit shall become nonforfeitable (100
percent vested) to the extent funded. At such time, the funds shall be
appropriated and distributed in accordance with the provisions of Chapter
185.
In the event that the Plan is terminated, the assets of the Plan shall first be
distributed to retired members and their beneficiaries. If there is any asset
value remaining after the apportionment to retired members and their
beneficiaries, apportionment shall next be made to each member in the
service who has completed at least ten (10) years of credited service and
has contributed to the fund for at least ten (10) years and who is not
otherwise eligible to retire. If there is any asset value after the
apportionments to retirees and their beneficiaries and to vested members
of the Plan, apportionment shall lastly be made in respect of each member
in the service of the City in an amount not to exceed the total value of the
member's contributions. In the event that there is any asset value
remaining after full apportionment to all members and beneficiaries of the
Plan, the excess, if any, shall revert proportionately to the City and the
State of Florida on the basis of contributions to the Plan.
SECTION -' DISTRIBUTION OF MARITAL INTERESTS IN THE PLAN.
A.
B.
In the event that the Board is served with a domestic relations order or
other legal process purporting to require the payment of any portion of a
member's benefit to another person as a result of a dissolution of marriage,
the Board shall cause such order to be reviewed to determine compliance
with the provisions of the Plan.
The Board of Trustees shall be authorized to intervene in any such
dissolution of marriage proceeding to ensure that such domestic relations
order is otherwise consistent with the distribution of an interest in a public
employees retirement plan under state law.
c.
Any cost associated with the modification or correction of such domestic
relations orders shall be the responsibility of the Plan member and
payment of any such cost shall be a condition precedent to the receipt of
benefits from the plan.
SECTION -' MISCELLANEOUS.
A.
The present or future right of a person to money in the Pension Fund or to
a retirement allowance, an optional allowance, a death benefit, the return
of contributions, or any other right accrued or accruing under the provisions
of this Plan shall not be assignable and shall not be subject to execution,
garnishment, attachment, the operation of bankruptcy or insolvency law or
any other process of law whatsoever, except with respect to alimony, child
support or medical payments to a former spouse or minor child.
B.
The Board shall have the power to examine into the facts upon which any
pension has been granted under any prior or existing law or which may be
granted in the future or obtained erroneously, fraudulently, or illegally for
any reason. The Board is empowered to purge the pension rolls of any
person who has been granted a pension under a prior or existing law, or
who is hereafter granted a benefit under this ordinance if the granting of
that pension is found to be erroneous, fraudulent, or illegal for any reason;
and to reclassify any pensioner who has under any prior or existing law or
who may under this Ordinance be erroneously, improperly or illegally
classified.
c.
Should any change or error in retirement system records be discovered or
result in any member or beneficiary receiving from the Retirement Plan
more or less than he or she would have been entitled to receive had the
records been correct, the Board shall have the power to correct such error
and, as far as possible, adjust the payments in such a manner that the
actuarial equivalent of a benefit to which such member or beneficiary was
correctly entitled shall be paid.
D.
If any member or beneficiary is a minor or is under any other legal
disability, the Board of Trustees shall have the power to withhold payment
of benefits until the Board is presented with proof satisfactory to the Board
of the appointment of a guardian. If the Board becomes aware that any
member or beneficiary is incapable of personally receiving and giving a
valid receipt for any payment due under the Plan, the Board shall cause
notice to be given to that participant or beneficiary of a hearing to
determine whether said benefits should continue to be paid until the
appointment of a guardian. During the pendency of any such hearing,
however, the Board may continue to pay benefits to the member or
beneficiary and that such payment shall be a complete discharge of any
liability under the Plan for such payment.
E.
Any person who willfully and knowingly makes, or causes to be made, or
assists, conspires with, urges another to make, or causes to be made, any
fraudulent, or misleading oral or written statement or withholds or conceals
material information to obtain any benefit available under this plan shall be
guilty of a misdemeanor of the first degree, punishable under sections
775.082 and 775.083, Florida Statutes. In addition to any applicable
criminal penalty, any beneficiary or participant in this plan who is convicted
of this offense may, in the discretion of the Board, be required to forfeit any
benefits payable under this plan. For the purposes of this section, the term
"conviction" shall mean a determination of guilt whether by plea or trial,
whether or not adjudication is withheld.
SECTIONS
, RESERVED,
Section 2, The City contribution, effective October 1, 2003 shall be fourteen and
one-half (14.5%) percent of covered payroll. The employee contribution rate shall be six
and three tenths (6.3%) percent. The assumed rate of Chapter 185 insurance premium
tax rebates shall be five (5%) percent of covered payroll. Future contribution increases
or decreases in the plan shall be shared equally between the employees and the City
through September 30, 2005,
Section 3, Employees hired as a City of Aventura police officer prior to October 1,
2000 shall be eligible to receive credited service from the initial date of employment as a
police officer provided the member transfers all funds from the city 401 (a)plan to the
defined benefit plan effective October 1, 2003.
The City shall make no further
contributions to the 401 (a) plan. Employees hired as a City of Aventura police officer
after October 1, 2000 shall receive credited service effective October 1, 2003 and shall
retain all balances to their credit in the 401 (a) plan; provided, however, that the City shall
make no further contributions to the 401 (a) plan. Employees hired as a City of Aventura
Police Officer on or after October 1, 2000 shall continue
to accrue vesting rights in the 401 (a), but the City shall make no additional contributions.
Section 4, Should this ordinance or any part thereof be declared invalid by a
Court of competent jurisdiction, the invalidity of any part of this ordinance shall not
otherwise affect the validity of the remaining provisions of this ordinance, which shall be
deemed to have been enacted without the invalid provision.
Section 5, It is the intention of the City Commission of the City of Aventura that
the provisions of this ordinance shall become and be made a part of the Code of the City
of Aventura, and that the word "ordinance" may be changed to "section," "article," or
such other appropriate word or phrase in order to accomplish such intentions.
Section 6, This ordinance shall become effective immediately upon its passage.
The foregoing Ordinance was offered by Commissioner Holzberg, who moved its
adoption on first reading. This motion was seconded by Commissioner Cohen, and
upon being put to a vote, the vote was as follows:
Commissioner lev Auerbach
Commissioner Ken Cohen
Commissioner Bob Diamond
Commissioner Harry Holzberg
Commissioner Manny Grossman
Vice Mayor Jay R. Beskin
Mayor Jeffrey M. Perlow
yes
yes
yes
yes
yes
yes
yes
The foregoing Ordinance was offered by Commissioner Diamond, who
moved its adoption on second reading. This motion was seconded by Commissioner
Cohen
and upon being put to a vote, the vote was as follows:
Commissioner lev Auerbach
Commissioner Ken Cohen
Commissioner Bob Diamond
Commissioner Harry Holzberg
Commissioner Manny Grossman
Vice Mayor Jay R. Beskin
Mayor Jeffrey M. Perlow
yes
yes
yes
absent
yes
yes
yes
PASSED AND ADOPTED on first reading this 6th day of January, 2004.
PASSED AND ADOPTED on second reading this 2nd day of March, 004.
APPROVED AS TO LEGAL SUFFICIENCY:
rI^' ~
CITY ATTORNEY