Except as otherwise provided herein, all rights, benefits and obligations of officers or employees of the City with respect to pensions or retirement are provided under the terms of this plan, and this plan supersedes and prevails over the terms of any rules, regulation, resolution or ordinance concerning such matters.
The City of Hagerstown shall have the right to amend the plan, at any time, by amendment to the Code of the City of Hagerstown and all parties thereto or claiming any interest thereunder shall be bound thereby. Notwithstanding any other provision of City law, no City resolution or ordinance which relates to the subject matter of the plan or conflicts with, narrows, or expands any term of this plan shall be effective unless the City acts by ordinance which specifically amends the provisions of this plan and which has been passed in accordance with the City Code and Charter. No amendment which affects the rights, duties, responsibilities or immunities of the Trustees shall be binding upon the Trustees in the absence of their consent thereto.
Notwithstanding the provisions of this section, the plan and trust may be amended at any time, by amendment to the Code of the City of Hagerstown, retroactively if required, if found necessary in order to conform to the provisions and requirements of the Internal Revenue Code or any similar act or any amendments thereto or regulations promulgated thereunder; no such amendment shall be considered prejudicial to any interest of a participant or beneficiary hereunder.
It is the present intention of the City to maintain the plan throughout the City's existence. Nevertheless, the City reserves the right, at any time, to permanently discontinue further contributions to the trust or to terminate the entire Plan and trust.
The liability of the City to make contributions to the trust shall automatically terminate upon liquidation of the City, upon its adjudication as a bankrupt or upon the making of a general assignment for the benefit or creditors.
The provisions of this section shall also become operative in the event of a partial termination of the plan, but only with respect to that portion of the plan attributable to the participants to whom the termination is applicable.
Effective date set by resolution of the City. The effective date of any termination or discontinuance of contributions shall be as set forth in a resolution adopted by the City.
Actions upon termination or discontinuance of contributions.
Upon the effective date of any such event, then, notwithstanding any other provisions of the plan, subject to the remainder of this section:
The assets in the trust shall be allocated for the purposes set forth below and in the order set forth below, to the extent the assets are sufficient therefor. The allocations may be implemented by distribution of trust assets, or by the purchase and distribution by the Trustees of insurance company annuity contracts, or by a combination of these methods.
Upon termination of the trust, the Trustees shall liquidate all assets remaining in the trust. After deduction of estimated expenses in liquidating and distributing the trust, and any reasonable compensation for the Trustees agreed upon with the City, the balance of the trust assets shall be allocated so as to provide the accrued benefits otherwise payable under the plan pursuant to the following order of priorities:
Participants in first priorities. To provide accrued benefits for each participant who:
Had begun to receive benefits at least three years prior to the effective date of the termination of the plan;
Would have begun to receive retirement or disability benefits at least three years prior to the effective date of the termination of the plan but for the fact that commencement of benefits was deferred; or
Would have been eligible to receive retirement benefits at least three years prior to the effective date of the termination of the plan but for the fact that the participant did not actually retire; and
Other participants. To provide accrued benefits for all other participants, in the following order of preference:
Trust assets utilized according to priority.
Trust assets shall be utilized under a particular priority only after all accrued benefits set forth in all preceding priorities shall have been fully provided for.
For purposes of the allocation of funds within each priority, as set forth above, funds will be credited to each participant to provide the accrued benefits to which the participant is so entitled, but only to the extent that such accrued benefits have not been provided under a preceding priority.
Any reductions in accrued benefits within a particular priority (or within any particular preference set forth within a priority) as set forth above, due to insufficient trust assets, shall be allocated pro rata among the participants within that priority (or preference) on the basis of then present values of the respective accrued benefits described in that priority (or preference) for each such participant.
Any reference to accrued benefits payable to participants shall also be deemed to include accrued benefits payable to beneficiaries of deceased participants.
If any balance of trust assets remains after all of the allocations described above, and after all liabilities with respect to participants and retired participants and their beneficiaries, if any, are satisfied, then the balance shall be returned to the City, and the trust shall terminate. Upon making such distribution, the Trustees shall be discharged from all obligations under the trust and no participant shall have any further right or claim therein.
Death of participant after effective date of termination. Notwithstanding any provision to the contrary in § 38-68 or this § 38-69, if a participant dies or otherwise terminates employment with the City during the interim between the effective date of termination and the distribution of trust assets, and if the participant's benefit commencement date had not yet occurred as of the effective date of termination, the amount distributable to the participant or to his or her beneficiary, and the timing thereof, shall be determined pursuant to §§ 38-39 and 38-40.
Event entitling participant to benefit. As an alternative to immediate distribution of the trust, the City, in its discretion, and subject to its option at any time to require the complete distribution of the trust to the then participants in accordance with § 38-68, may defer commencement of benefits to each participant until such participant reaches an event which would otherwise entitle him or her to benefit commencement pursuant to §§ 38-28 through 38-32, at which time the provisions of §§ 38-41 through 38-44 shall become applicable.
Separate account. During the interim period, there shall be established and maintained a separate account in the name of each participant, based upon the values established pursuant to §§ 38-68 through 38-72. The separate account shall thereafter define and measure the amount available for benefits distributable to the participant, and there shall be credited or charged thereto any income, expenses, gains or losses (whether or not realized, based upon fair market value of invested assets) attributable or allocable thereto as of each trust valuation date (or the date of complete distribution of the trust) with respect to the period since the last valuation date.
The provisions set forth in §§ 38-68 through 38-70 shall be subject to such modification, retroactively if required, without necessity of formal amendment to the plan, as may be necessary in order to cause the termination of the plan and/or trust, and any distributions made pursuant thereto and to conform to any requirements which may be imposed by the Internal Revenue Service to prevent disqualification of the plan and/or trust, and no such modification shall be deemed prejudicial to the interest of any participant or beneficiary.
Editor's Note: Former § 38-72, Benefits for highly compensated employees and restricted participants, was repealed 8-27-2002 by Ord. No. 2002-22.
In the case of any merger or consolidation of the plan with, or transfer of assets or liabilities of the trust to, any other plan, the transaction shall be structured so that each participant in the plan would (if the plan then terminated) receive a benefit immediately after the transaction which is at least equal to the benefit the participant would have been entitled to receive immediately before the transaction (if the plan had then terminated).