A.
Participant designates beneficiary. Each participant may designate a beneficiary or beneficiaries (who may be named contingently or successively) to receive such benefits as may be payable under the plan upon or after his or her death, and, subject to the provisions of §§ 38-41 through 38-44, such designation may be changed from time to time by the participant by filing a new designation. Each designation will revoke all prior designations by the same participant, shall be in form prescribed by the City, and will be effective only when filed in writing with the City during the participant's lifetime.
B.
Absence of valid beneficiary designation. In the absence
of a valid beneficiary designation (except in conjunction with the
election of a form of benefit payment which does not require the designation
of a specific beneficiary), or if, at the time any benefit payment
is due to a beneficiary, there is no living beneficiary eligible to
receive the payment, validly named by the participant, the City shall
direct the Trustees to distribute any such benefit payment to:
C.
Question regarding right of a person to receive a
benefit payment. In determining the existence or identity of anyone
entitled to a benefit payment, the City and the Trustees may rely
conclusively upon information supplied by the participant's personal
representative. In the event of a lack of adequate information being
supplied to the City, or in the event that any question arises as
to the right of any person to receive a benefit payment as aforesaid,
or in the event that a dispute arises with respect to any such payment,
then, notwithstanding the foregoing, the City, in its sole discretion,
may, in complete discharge of the City and the Trustees, and without
liability for any tax or other consequences which might flow therefrom,
direct the Trustees to:
A.
Notice to last post office address. Any communication,
statement or notice addressed to a participant or beneficiary at the
last post office address filed with the City, or if no such address
was filed with the City, then at the last post office address as shown
on the City's records, shall be binding on the participant or beneficiary
for all purposes of the plan. Except for the City's sending of a registered
letter to the last known address, neither the Trustees nor the City
shall be obliged to search for any participant or beneficiary.
B.
Distribution to next of kin if participant or beneficiary
fails to claim amount. If the City notifies any participant or beneficiary
that he or she is entitled to an amount under the plan and the participant
or beneficiary fails to claim such amount or make his or her or location
known to the City within three years thereafter, then, except as otherwise
required by law, if the location of one or more of the next of kin
of the participant, including the participant's surviving spouse,
is known to the City, it may direct distribution of such amount to
any one or more or all of such next of kin, and in such proportions
as the City determines.
C.
If location of participant, beneficiary, or next of kin cannot be determined. If the location of none of the foregoing persons can be determined, the City shall have the right to direct that the amount payable shall be deemed to be a forfeiture and treated in accordance with § 38-24, except that the dollar amount of the forfeiture, unadjusted for gains or losses in the interim, shall be reinstated if a claim for the benefit is made by the participant or beneficiary to whom it was payable. If any benefit payable to an unlocated participant or beneficiary is subject to escheat pursuant to applicable state law, neither the Trustees nor the City shall be liable to any person for any payment made in accordance with such law.
A.
All contributions under the plan shall be paid to
the Trustees and deposited in the trust.
B.
Such contributions, all investments made therewith
and proceeds thereof and all earnings and profits thereon, less the
authorized disbursements therefrom, shall constitute the trust, which
trust, and the agreement under which it is maintained, shall in all
respects constitute a part of the plan.
C.
The City reserves the right to select, and from time
to time to change, the Trustees, to amend the trust with the consent
of the Trustees, or to adopt a different funding vehicle.
It shall be impossible by operation of the plan
or trust, by natural termination of either, by power of revocation
or amendment, by the happening of any contingency, by collateral arrangement
or by other means, for any part of the corpus or income of the trust,
or any funds contributed thereto, to inure to the benefit of the City
or otherwise be used for or diverted to purposes other than providing
benefits to participants and beneficiaries and defraying reasonable
expenses of administering the plan, except as otherwise set forth
in the trust with respect to the conditions under which trust assets
may be returned to the City.
A.
Except as provided below, no benefit payable at any
time under this plan may be anticipated, assigned (either at law or
in equity), alienated or subject to attachment, garnishment, execution,
levy or other legal and equitable process.
B.
However, the prohibitions of the preceding sentence
shall not apply to, and the Trustees shall fully recognize the creation,
assignment or recognition of a right to any benefit payable with respect
to a participant pursuant to a qualified domestic relations order.
C.
For the purposes hereof, a "qualified domestic relations
order" shall mean a judgment, decree or order made pursuant to a state
domestic relations law which related to the provision of child support,
alimony payments or marital property rights and:
(1)
Which clearly specifies:
(a)
The names and last known mailing addresses of
the participant and each payee;
(b)
The amount or percentage of the participant's
benefits to be paid by this plan to each payee (or the manner in which
such amount or percentage is to be determined);
(c)
The number of payments or period to which such
order relates; and
(2)
Which does not:
(a)
Require this plan to provide increased benefits;
or
(b)
Require the payment of the same benefits to
any payee which are payable to another payee pursuant to a prior qualified
domestic relations order.
(c)
Require the payment of benefits to or for the benefit of the
same-sex spouse of a participant or former participant who does not
qualify as the participant's "alternate payee" under Section 414(p)(8)
of the Internal Revenue Code.
[Added 6-18-2013 by Ord. No. O-13-09[1]]
[1]
Editor's Note: This ordinance provided that it become effective
on 1-1-2013.
A.
Sole responsibility and control. Except as otherwise
specifically provided herein, the City shall have the sole responsibility
for and the sole control of the operation and administration of the
plan.
B.
Powers, duties and responsibilities. The City shall
have the power and authority to take all action and to make all decisions
and interpretations which may be necessary or appropriate in order
to administer and operate the plan, including, without limiting the
generality of the foregoing, the power, duty and responsibility to:
(1)
Resolve and determine all disputes or questions arising
under the plan, including the power to determine the rights of employees,
participants and beneficiaries, and their respective benefits, and
to remedy any ambiguities, inconsistencies or omissions;
(2)
Adopt such rules of procedure and regulations as in
its opinion may be necessary for the proper and efficient administration
of the plan and as are consistent with the plan;
(3)
Implement the plan in accordance with its terms and
such rules and regulations;
(4)
Direct the Trustees with respect to the eligibility
of any employee as a participant and the crediting and distribution
of the trust, which are to be made only upon the basis of instructions
from the City pursuant to the terms of the plan; and
(5)
Establish and carry out a funding policy and method
consistent with the objectives of the plan, pursuant to which the
City shall determine the plan's liquidity and financial needs and
communicate them to the Trustees (or other fiduciaries who are charged
with determining investment policy).
[Amended 4-25-2017 by Ord. No. O-17-04]
The plan shall be operated and administered
on behalf of the City by the Administrator, who shall be governed
by the following:
A.
Powers of the Administrator. Except to the extent that the City has retained any power or authority, or allocated duties and responsibilities to another fiduciary, the Administrator shall have full power and authority to administer and operate the plan in accordance with its terms and in particular the authority contained in §§ 38-53 through 38-61, and, in acting pursuant thereto, shall have full power and authority to deal with all persons in any matter directly connected with the plan, including, but not limited to, the Trustees, other fiduciaries, insurance companies, investment advisors, other advisors and specialists, participants, beneficiaries and their representatives, in accordance with the following provisions:
(1)
To make and enforce rules and regulations as it shall
deem necessary or proper for the efficient administration of the plan;
(2)
To make and enforce procedures to be followed by employees
in filing applications for benefits and for furnishing the evidence
necessary to establish the employees' right to benefits;
(3)
To make and enforce determinations concerning the
rights of employees applying for or receiving benefits;
(4)
To make and enforce procedures which afford a mechanism
for adjusting complaints of an employee dissatisfied with determinations
of the Administrator;
(5)
To make and enforce procedures for determining the
service credit of employees which affords employees an opportunity
to object, in writing, and to establish service credit in advance
of retirement;
(6)
To make and enforce procedures for authorizing disbursements
from the fund created under the plan and to authorize disbursements
from the Trustees of the fund in accordance with the plan documents;
(7)
To make and enforce procedures and standards and make
determinations concerning total and permanent disability in accordance
with the plan documents;
(8)
To compute the amount of benefits that shall be payable
to any person in accordance with the plan documents;
(9)
To interpret the plan;
(10)
To otherwise decide questions concerning the eligibility
of any employee to participate in the plan or to receive benefits
from the plan;
(11)
To employ or engage actuaries to make actuarial evaluations
of the liabilities under the plan, to recommend the mortality and
other tables and interest rates to be used from time to time in actuarial
and other computations for any purpose of the plan, to recommend the
amounts of contributions to be made by the City and to perform such
other services as the Administrator shall deem necessary or desirable
in connection with the Administration of the plan;
(12)
To employ or engage accountants as it shall deem necessary
or desirable in connection with the administration of the plan;
(13)
To employ or engage legal counsel as it shall deem
necessary or desirable in connection with the administration of the
plan;
(14)
To employ or engage any other experts as it shall
deem necessary or desirable in connection with the administration
of the plan;
(15)
To determine the mortality and other tables and interest
rates to be used from time to time in actuarial or other computations
for any purpose of the plan;
(16)
To recommend to the City the amounts of contributions
to be made by the City, from time to time, under the provisions of
the plan; and
(17)
To act for the City before all persons in any matter
directly pertaining to the plan.
B.
C.
Fiduciary powers, duties and responsibilities. Fiduciary
duties, powers and responsibilities (other than those reserved to
the Trustees, with respect to management or control of trust assets)
may be allocated among the fiduciaries (if there be more than one)
to whom such duties, powers and responsibilities have been delegated,
so long as such allocation is pursuant to action of the City or by
written agreement executed by the involved fiduciaries and approved
by the City in which case, such fiduciary shall have any liability,
with respect to any duties, powers or responsibilities not allocated
to him, for the acts or omissions of any other fiduciary. Any person
may serve in more than one fiduciary capacity under the plan, including
those of Administrator and Trustee.
D.
Specialized advice or assistance.
(1)
Appoint persons or firms; rely upon advice.
(a)
The Administrator may appoint any persons or firms, or otherwise
act to secure specialized advice or assistance, as it deems necessary
or desirable in connection with the administration and operation of
the plan.
(b)
The Administrator shall be entitled to rely conclusively upon,
and shall be fully protected in any action or omission taken by it
in good-faith reliance upon, the advice or opinion of such firms or
persons.
(2)
Delegate duties, powers or responsibilities to City employee.
(a)
The Administrator shall have the power and authority to delegate
from time to time by written instrument all or any part of his or
her duties, powers or responsibilities under the plan, both ministerial
and discretionary, as the Administrator deems appropriate, to an employee
of the City of Hagerstown, who shall be designated by the Administrator
as the plan Coordinator (the "Coordinator"), and in the same manner
to revoke any such delegation of duties, powers or responsibilities.
(b)
Any action of the Coordinator in the exercise of such delegated
duties, powers or responsibilities shall have the same force and effect
for all purposes hereunder as if such action had been taken by the
Administrator.
(c)
Further, the Administrator may authorize the Coordinator to
execute any certificate or document on behalf of the Administrator,
in which event any person notified by the Administrator of such authorization
shall be entitled to accept and conclusively rely upon any such certificate
or document executed by such person as representing action by the
Administrator until such third person shall have been notified of
the revocation of such authority.
(d)
The Administrator shall not be liable for any act or omission
of any person to whom the Administrator's duties, powers or responsibilities
have been delegated, nor shall any person to whom any duties, powers
or responsibilities have been delegated have any liabilities with
respect to any duties, powers or responsibilities not delegated to
him or her.
E.
Liability.
(1)
All representatives of the City, and/or members of
the Retirement Plan Committee shall use ordinary care and diligence
in the performance of their duties pertaining to the plan, but no
such individual shall incur any liability:
(a)
By virtue of any contract, agreement, bond or
other instrument made or executed by the individual or on his or her
behalf in the individual's official capacity with respect to the plan;
(b)
For any act or failure to act, or any mistake
or judgment made, in his or her official capacity with respect to
the plan, unless resulting from the individual's gross negligence
or willful misconduct; or
(c)
For the neglect, omission or wrongdoing of any
other person involved with the plan.
(2)
The plan shall indemnify and hold harmless each such
individual from the effects and consequences of the individual's acts,
omissions and conduct in his or her official capacity with respect
to the plan, except to the extent that such effects and consequences
shall result from the individual's own willful misconduct or gross
negligence; provided, however, that any person who shall claim the
right to any payment or damage as a result of the actions of any individual
in connection with the performance of their duties pertaining to the
plan, shall be entitled to look only to the trust fund created by
the plan for payment. Such individual shall have no other right, claim
or demand therefor against the City.
F.
Liability insurance.
(1)
The plan may purchase, using plan assets and as an
expense of the plan, liability insurance for the plan and/or for its
fiduciaries to cover liability or losses occurring by reason of an
act or omission of a fiduciary, provided such insurance contract permits
recourse by the insurer against the fiduciary in the case of breach
of fiduciary obligation by such fiduciary.
(2)
Any fiduciary may purchase, from and for his or her
own account, insurance to protect the fiduciary in the event of a
breach of fiduciary duty and the City may also purchase insurance
to cover the potential liability of one or more persons who serve
in a fiduciary capacity with regard to the plan.
G.
Fiduciary's benefits.
(1)
Nothing in the plan shall be construed so as to prevent
any fiduciary from:
(a)
Receiving any benefit to which he or she may
be entitled as a participant or beneficiary; or
(b)
Receiving any reasonable compensation for services
rendered, or for the reimbursement of expenses properly incurred in
the performance of his or her duties under the plan (except that no
person so serving who receives compensation as an employee shall receive
compensation from the plan, except for reimbursement of expenses properly
incurred); or
(c)
Serving as a fiduciary in addition to being
an officer, employee, agent, or other representative of the City or
any related entity.
(2)
However, the fiduciary shall not be entitled to vote
or act upon, or execute on behalf of the plan, documents specifically
relating to, his or her own participation in the plan.
[Amended 12-20-2011 by Ord. No. O-11-24; 4-25-2017 by Ord. No. O-17-04]
The Retirement Plan Committee shall serve as an advisor to the
Administrator, the Coordinator and the City Council with respect to
the investment of the plan's assets and any other matters that may
be referred to that Committee by the Administrator, the Coordinator
or the City Council.
A.
Individuals serving on the Committee.
(1)
The Committee shall consist of those individuals who
hold the following positions:
(a)
Human Resources Director;
(b)
Finance Director;
(c)
Representative of Local 3373 of the American
Federation of State, County, and Municipal employees;
(d)
Representative of Local 1605 of the International
Association of Firefighters;
(e)
Representative of the City of Hagerstown Police
Department management employees;
(f)
Representative of the City of Hagerstown Fire
Department management employees;
(g)
Member of the Hagerstown City Council who shall
be entitled to vote only upon matters which do not require Council
approval;
(h)
A citizen of Washington County, Maryland, with investment or
financial experience who shall be appointed by the Mayor and City
Council; and
(i)
A retiree receiving benefits from the plan who
shall be appointed by the Mayor and City Council.
(2)
The Committee shall elect its own Chairperson and
Vice Chairperson annually.
B.
Compensation, acceptance of duties and responsibilities.
Subject to his or her right to resign at any time, each member of
the Committee shall serve without compensation at the pleasure of
the City, and the City may appoint, and may revoke the appointment
of, additional members to serve with the Committee as may be determined
to be necessary or desirable from time to time. Each member of the
Committee, by accepting appointment to the Committee, shall thereby
be deemed to have accepted all of the duties and responsibilities
of such appointment, and to have agreed to the faithful performance
of his or her duties thereunder.
C.
Organization; voting.
D.
Recommendations. The Committee shall make nonbinding recommendations
to the Administrator, the Coordinator and the City Council on matters
referred to the Committee. Those recommendations shall be advisory
only and shall not be binding on the Administrator, the Coordinator
or the City Council.
Neither the Trustees nor the City shall be obliged
to inquire into or be responsible for any act or failure to act, or
the authority therefor, on the part of the other.
[Amended 4-25-2017 by Ord. No. O-17-04]
Whenever in the administration or operation of the plan discretionary
actions by the City, the Administrator or the Trustees are required
or permitted, such action shall be consistently and uniformly applied
to all persons similarly situated, and no such action shall be taken
which shall discriminate in favor of highly compensated employees
as defined in Section 414(q) of the Internal Revenue Code.
[Amended 4-25-2017 by Ord. No. O-17-04]
The Administrator and all other persons in any fiduciary capacity
with respect to the plan shall discharge their duties with respect
to the plan:
A.
Solely in the interest of the participants and beneficiaries
and for the exclusive purposes of providing benefits to participants
and their beneficiaries and defraying reasonable expenses of administering
and operating the plan;
B.
With the care, skill, prudence and diligence under
the circumstances then prevailing that a prudent individual acting
in a like capacity and familiar with such matters would use in the
conduct of an enterprise of a like character and with like aims; and
C.
In accordance with the documents and instruments governing
the plan.
In any action or judicial proceeding affecting
the plan and/or the trust, except as may be otherwise required by
law, no participant or beneficiary shall be entitled to any notice
or service of process, and any final judgment entered in such action
shall be binding on all persons interested in, or claiming under,
the plan.
Expenses incurred in the administration and
operation of the plan shall be paid by the Trustees out of the trust
unless the City, in its discretion, elects to pay them.
[Amended 4-25-2017 by Ord. No. O-17-04]
An employee aggrieved by a decision of the Administrator may
request that the Administrator review his or her decision, and the
Administrator shall then review its decision. The decision of the
Administrator following such review upon request of an employee shall
be final and conclusive.
