§ 54-175. City of Port Orange Defined Contribution Retirement Plan.

(a)

The effective date of the City of Port Orange Defined Contribution Retirement Plan is January 1, 2012.

(b)

General employees hired on or after January 1, 2012 who become members of the City of Port Orange General Employees Defined Contribution Retirement Plan shall be subject to the provisions of this section 54-175.

(c)

Unless otherwise specified in this section 54-175, the City of Port Orange General Employees Defined Contribution Retirement Plan shall be administered pursuant to the applicable definitions set forth in section 54-146.

(d)

Contributions.

(1)

Employee contributions are voluntary, but shall not exceed the applicable Internal Revenue Code limit.

(2)

The city's contributions shall be ten percent of basic compensation. Additionally, for each one percent of employee contributions, the city shall contribute an additional 0.5 percent not to exceed a maximum additional city contribution of three percent. The city's total contribution shall not exceed 13 percent. The city's contributions shall be deposited on at least a monthly basis.

(e)

Vesting.

(1)

Employees shall be one hundred percent vested in all contributions made by the employee with the net cumulative investment gain or loss thereon less investment fees and administrative charges.

(2)

As to contributions made by the city, employees shall be vested in the city's contributions with the net cumulative investment gain or loss thereon less investment fees and administrative charges, pursuant to the vested percentage schedule as set forth below:

Vesting service	Vested percentage
Less than 5 years	0%
5 years but less than 6	25%
6 years but less than 7	40%
7 years but less than 8	55%
8 years but less than 9	70%
9 years but less than 10	85%
10 years or more	100%

 

(f)

Benefits.

(1)

Benefits shall be provided in accordance with section 401(a) of the Internal Revenue Code.

(2)

Benefits shall accrue in individual accounts that are participant-directed, and funded by city and employee contributions and earnings thereon, less administrative expenses.

(3)

Benefits shall not be paid under this section unless the participant has separated from employment and a proper application has been filed in the manner prescribed by the plan administrator. The plan administrator may cancel an application when the participant or beneficiary fails to timely provide the information and documents required by the plan administrator.

(g)

Forfeitures.

(1)

Forfeiture for cause. Notwithstanding anything herein to the contrary, if a participant is convicted of a specified offense as set forth in F.S. § 112.3173, or the participant's retirement benefit is otherwise forfeited pursuant to F.S. § 112.3173(3), the provisions of F.S. § 112.3173, as same may be amended from time to time, shall apply and the participant shall forfeit all rights to receive a benefit herein in accordance with the provisions of such F.S. § 112.3173.

(2)

Non-vesting forfeiture. If a participant separates from employment the non-vested portion shall be forfeited.

(3)

A forfeiture account shall be created within the City of Port Orange General Employees' Defined Contribution Retirement Plan to hold assets derived from the forfeitures. The forfeiture account shall be used only for paying expenses of the City of Port Orange General Employees' Defined Contribution Retirement Plan and reducing future city contributions. Unallocated reserves within the forfeiture account must be used as quickly and as prudently as possible considering the plan administrator's fiduciary duty. Expected withdrawals from the forfeiture account must endeavor to reduce the forfeiture account to zero each year.

(h)

Administration.

(1)

The City of Port Orange Defined Contribution Retirement Plan shall be administered by the plan administrator who shall be the City Manager of the City of Port Orange or his/her appointee.

(2)

The plan administrator with the approval of city council shall select a company or companies to offer one or more investment products or services to the participants. Such company or companies may be a bundled provider that offers participants a range of individually allocated or unallocated investment products and a range of administrative and customer services, including accounting and administration of individual participant accounts; individual participant record keeping; asset purchase, control and safekeeping; direct execution of the participant's instructions as to asset allocation; calculation of daily net asset value; direct access to participant account information; periodic reporting to participants, at least quarterly, on account balances and transactions; guidance, advice, and allocation services directly to its own investment options or products, but only if the provider complies with the standard of care of § 404(a)(1)(A-B) of the Employee Retirement Security Act of 1974 (ERISA), and if providing such guidance, advice, or allocation of services does not constitute a prohibited transaction under § 4975(c)(1) of the Internal Revenue Code or § 406 of ERISA, notwithstanding that such prohibited transaction provisions do not apply to the City of Port Orange Defined Contribution Retirement Plan; a broad array of distribution options; asset allocation; and retirement counseling and education. The companies may include investment management companies, insurance companies, depositories and mutual fund companies.

(3)

The plan administrator shall have the full power and authority to adopt rules and regulations for the administration of this plan and to interpret, alter, amend or revoke any rules so adopted, which rules shall have the force of law. However, the plan administrator shall not have the authority to adopt any rules which makes a substantive change to this plan.

(4)

The plan administrator shall have the full power and authority to retain independent legal counsel, independent actuary, and such independent professional, technical, or other advisors as it deems necessary at the expense of this plan.

(5)

The City of Port Orange Defined Contribution Retirement Plan shall be administered by the plan administrator, any approved provider and third party administrator, if any, in accordance with all applicable mandatory provisions of federal and state law now existing or as they may exist in the future. The plan administrator is hereby authorized to adopt written rules setting forth the specifics of applicable mandatory provisions of federal and state law as they now exist or may exist in the future, which rules shall have the force of law.

(6)

Unless otherwise specified in this section 54-175, the City of Port Orange General Employees Defined Contribution Retirement Plan shall also be subject to and administered pursuant to the following; provided that, as of October 1, 2014 "retirement committee" shall mean "plan administrator," as defined in subsection 54-175(h)(1):

a.

Section 54-158. Benefits nonforfeitable if plan is terminated or contributions completely discontinued.

b.

Section 54-159. Direct transfers of eligible rollover distributions.

c.

Section 54-160. Miscellaneous provisions regarding participants.

d.

Section 54-161. Claims procedure.

e.

Section 54-163. City's contributions irrevocable.

f.

Section 54-164. Expenses of administration.

g.

Section 54-165. Amendment of plan.

h.

Section 54-166. Termination of plan.

i.

Section 54-167. Administration: General fiduciary responsibilities.

j.

Subsection 54-170(b). Applicable law.

k.

Section 54-174. False, misleading or fraudulent statements made to obtain retirement benefits prohibited; penalty.

(7)

If after use of monies remaining in the forfeiture account, there remains unpaid investment fees or administrative charges, the plan administrator shall assess each participant's account in an amount and manner deemed appropriate by the plan administrator.

(i)

Investment.

(1)

The investment of the assets of the City of Port Orange Defined Contribution Retirement Plan shall be subject to the limitations and conditions set forth in F.S. §§ 251.47(1)—(6), (8), (9), (11) and (17), and shall be pursuant to a written investment policy adopted by the plan administrator pursuant to F.S. § 112.661, as such statutes now exist or as they may exist in the future.

(2)

The plan administrator with the approval of city council may select one or more providers, each of whom may offer multiple investment options and related services.

(3)

As a condition of offering any investment option or product, the approved provider must agree to make the investment product or service available under the most beneficial terms offered to any other customer, subject to approval by the plan administrator.

(j)

Performance review. At least once every three years, the plan administrator shall retain a professionally qualified, independent consultant to review and evaluate the performance of each approved provider and product.

(k)

Participant information requirements.

(1)

The plan administrator shall insure that each participant is provided a quarterly statement that accounts for the participant's interest and investment earnings thereon; any fees, penalties or the deductions that apply thereto.

(2)

The approved provider and the third-party administrator, if any, shall provide quarterly and annual summary reports to the plan administrator and any other reports requested by the plan administrator.

(l)

Federal requirements.

(1)

Provisions of this section shall be construed and the City of Port Orange Defined Contribution Retirement Plan shall be administered, so as to comply with the applicable provisions of the Internal Revenue Code, 26 U.S.C., now existing or as they may exist in the future; and specifically with plan qualification requirements imposed on governmental plans under § 401(a) of the Internal Revenue Code. The plan administrator shall have the power and authority to adopt rules reasonably necessary to establish and maintain the qualified status of the City of Port Orange Defined Contribution Retirement Plan under the Internal Revenue Code and to implement and administer the City of Port Orange Defined Contribution Retirement Plan in compliance with the Internal Revenue Code; provided, however, the plan administrator shall not have the authority to adopt any rule which makes a substantive change to the City of Port Orange Defined Contribution Retirement Plan.

(2)

Any provision of this section which is susceptible to more than one construction must be interpreted in favor of the construction most likely to satisfy requirements imposed by § 401(a) of the Internal Revenue Code.

(m)

Investment policy statement. Investment products and approved providers selected for the City of Port Orange Defined Contribution Retirement Plan shall conform with the written policy statement adopted by the plan administrator pursuant to F.S. § 112.661, as such statute now exists or as it may exist in the future. The statement must also include, among other items, the investment objectives of the City of Port Orange Defined Contribution Retirement Plan, manager selection and monitoring guidelines, and performance measurement criteria. The plan administrator's professionally qualified, independent consultant may present recommended changes in the investment policy statement to the plan administrator for approval.

(n)

Statement of fiduciary standards and responsibilities.

(1)

Investment by approved providers of the City of Port Orange Defined Contribution Retirement Plan assets shall be subject to the fiduciary standards set forth in F.S. §§ 112.656 and 518.11, as such statutes now exists or as it may exist in the future.

(2)

If a participant or beneficiary of the City of Port Orange Defined Contribution Retirement Plan exercises control over the assets in his or her account, as determined by reference to regulations of the United States Department of Labor under § 404(c) of the Employee Retirement Income Security Act of 1974, and all applicable laws governing the operation of the plan, no plan fiduciary shall be liable for any loss to a participant's or beneficiary's account which results from such participant's or beneficiary's exercise of control.

(o)

Participant records. Personal identifying information of a participant in the City of Port Orange Defined Contribution Retirement Plan contained in records held by the plan administrator or the City of Port Orange is exempt from F.S. § 119.07(1), and Section 24(a), Article I of the state Constitution.

(p)

Miscellaneous provisions.

(1)

Exclusive benefit rule. No part of the assets of this plan shall be used for, or diverted to any purpose whatsoever other than for the exclusive benefit of the participants and beneficiaries thereof, and defraying reasonable expenses of administering this plan. No person shall have any interest in, or right to, any part of the assets of this plan, except as and to the extent expressly provided in this section 54-175.

(2)

Non-alienation of benefits. The benefits provided by this plan shall not be subject to garnishment, execution, attachment, the operation of bankruptcy or insolvency law, or to any legal process whatsoever, and shall be unassignable.

(3)

Marriage dissolution. No distribution of a participant's account shall be made because of dissolution of marriage. Payouts shall only be made after the participant's separation from employment. A participant's account shall not be subject to a Qualified Domestic Relations Order (QDRO). The costs incurred by the plan administrator for any actuarial, accounting, administrative, or legal services required to respond to any court orders or any other matters involving the calculation or division of a participant's account due to a dissolution of marriage shall be deducted from the participant's account.

(4)

Termination and discontinuance of the plan. It is the intent of the City of Port Orange that this plan be permanent and remain in effect for an indefinite period. However, in the event this plan is discontinued or terminated, all participants shall immediately become fully vested in their benefits. The discontinuance or termination shall be carried out in all respects in conformance with applicable statutes, rules and regulations of the federal government and the State of Florida, or any duly constituted agency thereof having jurisdiction.

(5)

Applicable laws. This plan shall be construed and enforced under the applicable laws of the State of Florida and any applicable federal laws, rules and regulations, and all of the provisions hereof shall be administered in accordance therewith.

(6)

Disclaimer with respect to investments. The city and the plan administrator make no endorsement, guarantee or any other representation and shall not be liable to this plan or any participant, beneficiary, or any other person with respect to the financial soundness, investment performance, fitness or suitability (for meeting a participant's objectives, future obligations under the plan, or any other purpose) of any investment option offered by this plan or any investment vehicle in which a participant's account are actually invested.

(7)

Spend-thrift provision. The interests of the participant in his account, or the income or gains therefrom, shall not be subject to the rights of creditors of the participant, and shall be exempt from execution, attachment, distress for rent, and all other legal or equitable process issued by or on behalf of such creditors, and the interests of the participant in his individual account or the income or gains therefrom shall not be assignable.

(8)

Venue. Any litigation concerning this plan shall be conducted in the state courts in the State of Florida situated in Volusia County, Florida.

(9)

Reservation of right to amend plan. Subject to the provisions of F.S. ch. 447, pt. II, the City of Port Orange reserves the right at any time to amend or modify this plan, provided that no amendment shall cause any part of the plan assets to be used or diverted to purposes other than the exclusive benefit of the participants and their beneficiaries.

(q)

The City Council of the City of Port Orange is hereby designated as the "governmental entity" and the "plan sponsor," as provided by F.S. ch. 112, pt. VII.

(Ord. No. 2011-37, § 5, 1-3-2012; Ord. No. 2015-1 , § 1, 3-3-2015; Ord. No. 2015-8 , § 1, 7-7-2015)