HomeMy WebLinkAboutRESOLUTION NO 07-02-017STATE OF GEORGIA
COUNTY OF FULTON
RESOLUTION NO. 07-02-017
RESOLUTION FOR A LEGISLATIVE BODY RELATING TO A MONEY PURCHASE PLAN
BE IT RESOLVED by the City Council of the City of Milton, GA while in regular session on February
15"', 2007 at 7:00 p.m. as follows:
WHEREAS, the Employer has employees rendering valuable services; and
WHEREAS, the establishment of a money purchase retirement plan benefits employees by providing funds
for retirement and funds for their beneficiaries in the event of death; and
WHEREAS, the Employer desires that its money purchase retirement plan be administered by the ICMA
Retirement Corporation and that the funds held such plan be invested in the Vantage Trust, a trust
established by public employers for the collective investment of funds held under their retirement and
deferred compensation plans:
NOW THEREFORE BE IT RESOLVED that the Employer hereby establishes or has established a money
purchase retirement plan (the "Plan") in the form of: (Select one)
The ICMA Retirement Corporation Governmental Money Purchase Plan & Trust, pursuant to the
specific provisions of the Adoption Agreement (executed copy attached hereto).
X The Plan and Trust provided by the Employer (executed copy attached hereto).
The Plan shall be maintained for the exclusive benefit of eligible employees and their beneficiaries; and
BE IT FURTHER RESOLVED that the Employer hereby executes the Declaration of Trust of the Vantage
Trust, and attached hereto as Appendix B, intending this execution to be operative with respect to any
retirement or deferred compensation plan subsequently established by the Employer, if the assets of the
plan are to be invested in the Vantage Trust.
BE IT FURTHER RESOLVED that the Employer hereby agrees to serve as trustee under the Plan and to
invest funds held under the Plan in the Vantage Trust; and
BE IT FURTHER that the City Treasurer shall be the coordinator for the Plan; shall receive reports, notices,
etc., from the ICMA Retirement Corporation or the Vantage Trust; shall cast, on behalf of the Employer, any
required votes under the Vantage Trust; may delegate any administrative duties relating to the Plan to
appropriate departments; and
BE IT FURTHER RESOLVED that the Employer hereby authorizes the City Treasurer to execute all
necessary agreements with the ICMA Retirement Corporation incidental to the administration of the Plan.
1, , Clerk of the (City, County, etc.) of , do hereby
certify that the foregoing resolution proposed by (Council Member, Trustee, etc.) of
, was duly passed and adopted by the (Council, Board, etc.) of the (City,
County, etc.) of at a regular meeting thereof assembled this
day of , 200_, by the following vote:
AYES:
NAYS:
ABSENT:
Clerkbf the (City, County, etc.)
(SEAL}
ICMA Retiremen` Corporation • P. O. Box 962
�r
Joe Lockwoo , Mayor
• 1-800-326-7272
The City of Milton (hereinafter referred to as the "Employer") establishes the City of
Milton 401(a) Retirement Plan (the "Plan") effective January 1, 2047. This document sets forth
the provisions of this Section 401(a) of the Internal Revenue Code of 1986 (the "Code") Defined
Contribution Government Retirement Plan, defined in Code section 414(d).
ARTICLE I. DEFINITIONS
A. "Account" means an investment account within the Trust Fund, established for each Plan
Participant, Beneficiary, or Alternate Payee for the purposes of allocation of Employer
contributions and the investment and reporting of the Participant's benefit under the Plan.
B. "Alternate Payee" means the spouse, child, or other dependent of a Participant for whom
an amount has been separated into an account under a domestic relations order described in
Article VIII.G.
C. "Beneficiary" means the person or persons entitled under the provisions of this Plan to
receive benefits after the death of a Participant.
D. "Compensation" means the total remuneration earned by an Employee for personal
services rendered, including cost -of -living differentials, as reported on the Employee's Federal
Income Tax Withholding Statement (Form W-2) from the Employer for the calendar year.
Compensation shall not include: (1) any remuneration contributed by the Employer for or on
account of the Employee under this Plan or under any other qualified or nonqualif ed employee
benefit plan; (2) any remuneration not specifically included above which would have been
excluded under Section 3121(a) of the Internal Revenue Code if the Employer had remained in
the Federal Social Security System; (3) any remuneration paid by the Employer in excess of the
Social Security Taxable Wage Base for the calendar year.
Notwithstanding the above, compensation shall include any amount which is contributed
by the Employer pursuant to a salary reduction agreement and which is not includible in the
gross income of the Employee under sections 125, 132(f)(4), 402(e)(3), 402(h)(1)(B) or 403(b)
of the Code. The annual compensation limitation for each Participant shall not exceed $2.04,004,
as adjusted for the cost of living in accordance with Section 40 1 (a)(1 7)(B) of the Code. The
limitation for a fiscal year is the limitation in effect for the calendar year within which the fiscal
year begins.
If a determination period consists of fewer than 12 months, the annual limit is an amount
equal to the otherwise applicable annual limit multiplied by a fraction. The numerator of the
fraction is the number of months in the short determination period, and the denominator of the
fraction is 12.
E. "Effective Date" means January 1, 2007.
F. "Employee" means any person (and only such person), including an officer, who is
employed by the Employer and who the Employer determines in the exercise of its sole
discretion to be a common law employee and for whom Social Security contributions would
have been made during the year by the Employer if the Employer had remained in the Federal
Social Security System.
G. "Employer" means the City of Milton, Georgia.
H. "Investment Provider" means a corporation or individual selected to provide a particular
investment vehicle to the trust fund through which a Participant, Beneficiary, or Alternate Payee
by exercising his or her control, is permitted to direct the Trustee or Trustees to purchase
investments on his or her behalf.
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I. "Investment Funds" means those separate funds which are provided within and which
comprise the Trust Fund, and are established for the purpose of directing investment through the
exercise of the sole control of a Participant, Beneficiary or Alternate Payee under the terms of
the Plan and Trust Agreement.
J. "Normal Retirement Age" means age 65. A Participant who continues in the employ of
the Employer after reaching Normal Retirement Age shall continue to participate in the Plan and
to have contributions allocated to the Participant's Account.
K. "Participant" means any Employee or former Employee who retains a right to benefits
under the Plan.
L. "Plan" means the "City of Milton 401(a) Retirement Plan" set forth herein originally
effective January 1, 2007, and includes any future amendments.
M. "Plan Administrator" means the Employer, or the Employer's designee. The Plan
Administrator shall be responsible for the administration and interpretation of the Plan and shall
establish and carry out a funding policy consistent with the purposes of the Plan.
N. "Record Keeper" means an operating entity selected by the Plan Administrator to provide
administrative services on behalf of the Plan.
4. "Social Security Taxable Wage Base" means, with respect to any calendar year, the
maximum amount of earnings which may be considered wages for such year under Section
3121(a) of the Internal Revenue Code.
P. "Trustee(s)" shall mean those individuals who are dcsignated by the Employer as a
Trustee or Trustees of the Trust.
Q. "Trust Fund" means all cash, securities, real estate, and any other property, together with
income thereon, of this Plan held by the Trustee pursuant to the terms of the Trust Agreement, as
such agreement may subsequently be amended from time to time.
ARTICLE II. ELIGIBILITY AND PARTICIPATION
A. Eligibility Requirements
An Employee shall become a Participant in the Plan on the Effective Date or the first of
the month following date of employment with the Employer, whichever occurs later.
B. Participation
Participation in the Plan continues until a Participant is no longer entitled to benefits
under the Plan.
C. Leaves of Absence
Temporary leaves of absence will not terminate participation in the Pian or eligibility for
contributions based on Compensation by the Employer for the period of leave. For leaves of
absence without Compensation, participation is deemed suspended and will resume once the
leave of absence is complete.
ARTICLE III. EMPLOYER CONTRIBUTIONS
A. Picked -Up Employee Contributions
Picked -up Employee contributions to the Trust Fund shall be mandatory and shall be at
the rate of 3.75% of the Participant's Compensation for the month. Picked -up Employee
contributions shall be made by payroll deduction before computation of applicable federal and
state taxes from a Participant's Compensation. Such contributions are designated as Picked -up
Employee contributions that are "picked -up" (i.e., contributed) by the Employer so that they may
be treated as Employer contributions for tax purposes under Section 414(h) of the Code. An
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Employee may not have the option of receiving the payroll deduction dircctly in cash instead of
having the contribution picked up by the Employer,
B. Regular Employer Contributions
In addition to the Picked -up Employee contributions, Regular Employer contributions to
the Trust Fund shall be at the rate of 3.75% of the Participant's Compensation for the month.
C. Timing
Contributions pursuant to this Article III shall be made by the Employer on a
Participant's behalf as soon as administratively feasible following the payroll date and shall be
allocated to the Employee's Account as described in Article IV.
ARTICLE IV. ALLOCATIONS TO EMPLOYEES' ACCOUNTS
A. Accounts
The Plan Administrator has delegated its responsibility to maintain separate accounts on
behalf of each Participant, Beneficiary, and Alternate Payee to the Record Keeper. Each Account
shall reflect the amounts allocated thereto and distributed therefrom and such other information
as affects the value of such Account pursuant to the Plan as described in this Article IV. The
Account of each Participant, Beneficiary, and Alternate Payee shall be adjusted daily by the
following credits and debits:
Payments: Subtract the total amount of any payments made from the
Account since the preceding date.
2. Contributions: Add the Picked -up Employee Contributions and Regular
Employer Contributions to the Account since the preceding date.
Investment Fund Transfers: Add or subtract the amount of any
adjustments to the Account resulting from transfers of Investment Fund.
4. Change -in -Value: Add or subtract the change in value of the Account
based on the increase or decrease in the market value of the Investment Fund units held in the
Account.
5. Administrative Fees: Subtract the administrative fees in the amount of the
prescribed percentage of the month-end asset balance of the Account at the enol of each calendar
month and a prescribed annual fee during each plan year.
G. Miscellaneous Adjustments: Add or subtract any additional miscellaneous
adjustments which are required to reflect the current valuation of the Account.
B. Amounts Placed in Trust, Fees and Adjustments
The Employer Contributions specified in Article 111 shall be deposited into the Trust
Fund as soon as administratively feasible after receipt by the Trustee.
The Plan Administrator shall direct the Trustee to pay from the Trust Fund for any fees
(administrative, investment, or other), incurred by the Plan in such amounts and at such times as
deemed necessary by the Plan Administrator for the maintenance of the Plan. No fees shall be
paid from the Trust Fund on account of reimbursement for setttor expenses. Settlor expenses
shall include those incurred by the State on account of the creation, amendment or termination of
the Plan.
Amounts remaining in the Trust Fund following the payment of necessary and reasonable
administrative expenses associated with the administration of the Plan shall be invested by the
Trustees in accordance with the direction of the Participant, Beneficiary or Alternate Payee in
one or more Investment Funds as may be made available by the Plan Administrator and shall
increase or decrease depending upon changes in investment value.
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C. Valuation of Trust Fund
The Trust Fund shall be valued at least once a quarter, and the value and investment
performance of each individual Account shall be reported to respective Participants at a
reasonable time following the valuation date based on information assembled by the Plan
Administrator.
D. Participant Election to Direct Investments Among Available Investment Funds
1. Initial Deposit of Employer Contributions to Investment Funds
Investment of Plan funds held in an Account may be directed by a Participant,
Beneficiary or AIternative Payee among available Investment Funds in accordance with rules
established by the Plan Administrator. Initial investment of Plan funds allocated to an Account
shall be allocated to the default investment fund as specified by the Plan Administrator. The
default fund will be the ICMA-RC plus fund. Once made, the Plan funds allocated to an Account
shall be directed to the available Investment Funds in accordance with the provisions of this
Paragraph D.
2. Participant Direction of Investment
A Participant, Beneficiary, or Alternate Payee may elect to change the investment
of Employer contributions to be allocated to his or her Account among available Investment
Funds once each day in accordance with the rules established by the Plan Administrator. Only
the last election that has been filed with the Plan Administrator prior to the transmittal of
Employer contributions to the Trust Fund for allocation to the individual Account will be used to
direct the investment of the Employer contributions received.
3. Investment Direction to Transfer Existing Individual Account Balance
Among Investment Funds
A Participant, Beneficiary or Alternate Payee may elect to transfer all or a portion
of his or her existing Account balance among available Investment Funds once each day in
accordance with the rules established by the Plan Administrator. Such a direction shall be
effective as indicated in the rules established by the Plan Administrator.
4. Liability
The Employer, Plan Administrator, or a person or entity who is otherwise a
fiduciary, is not liable for any investment loss, or by reason of any breach, that results from the
direction of the Participant, Beneficiary, or Alternate Payee in the exercise of control over the
Plan assets allocated to his or her Account for the purpose of directing the investment of those
funds.
E. Annual Addition Limitation under Internal Revenue Code Section 415
Notwithstanding any other provisions of this Plan, the annual additions to each
Participant's Accounts under this Plan and under all defined contribution plans of the Employer
required to be aggregated with the contributions from this Plan under the provisions of 26 U.S.C.
415 may not exceed for any limitation year the amount permitted under 26 U.S.C. 415 at any
time. In the event that the amount of a member's defined contribution plan contributions exceed
the limitation of 26 U.S.C. 415(c) for any limitation year, the Plan administrator shall take any
necessary remedial action to correct an excess contribution. The provisions of 26 U.S.C. 415,
and the regulations adopted under that statute, as applied to qualified defined contribution plans
of governmental employees are incorporated as part of the terms and conditions of the Plan. This
article applies to any Participant in this Plan.
ARTICLE V. VESTING AND PAYMENT OF BENEFITS
A. Vesting
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Each Participant's account shall be fully vested and nonforfeitable at all times.
B. Eligibility for Payment
1. A terminated Employee shall be eligible to elect distribution of his or her
Account, in accordance with this Article V, 60 days subsequent to termination of employment.
2. If a Participant dies before benefits commence, a Beneficiary shall be
immediately eligible to elect distribution of the deceased Participant's Account, in accordance
with the terms and conditions of this Article V.
Notwithstanding the foregoing, in the event that a Domestic Relations
Order qualifying as such is received and approved by the Plan Administrator as specified in
Paragraph G of Article VIII, benefits shall be payable to the Alternate Payee in accordance with
the terms and conditions of such order.
C. Benefit Commencement Date.
Payments to a Participant or Beneficiary who meets the requirements of
Paragraph B of this Article V shall continence as soon as administratively feasible following the
benefit commencement date. The benefit commencement date is the first date on which one of
the following occurs:
a. A Participant or Beneficiary meets the requirements of Paragraph
B of this Article V and has completed an application;
b. A Participant or Beneficiary has elected to defer receipt of the
Account in accordance with Subparagraph 2 of this Paragraph C, the date specified has been
attained, and the Participant or Beneficiary has applied for payment;
E
C. A Participant attains Normal Retirement Age and has not applied
for payment or elected to defer receipt of the Account in accordance with Subparagraph 2 of this
Paragraph C to a date later than Normal Retirement Age; or
d. A Beneficiary does not apply for benefits and five years have
elapsed since the Participant's death.
Notwithstanding any other provisions of Paragraph E. of Article V., a Participant,
Beneficiary, or Alternate Payee who meets the requirements of Paragraph B of this Article V,
and whose Account has a balance of $1,000 or less ($5,000 or less if a Beneficiary or Alternate
Payee), must take payment of his or her Account.
2. A Participant or Beneficiary may elect to defer receipt of payment to a
date later than the date specified in Paragraph B of this Article V in accordance with the
following:
attaining age 70 112;
a. A Participant may defer to any date up to April 1 of the year after
b. The timing of payments to a Beneficiary will be made in
accordance with the provisions of Paragraph E. of Article V.
3. Payments to an Alternate Payee shall commence as soon as
administratively feasible for an Alternate Payee who meets the requirements of Paragraph B,
subparagraph 4 of this Article V and has applied for payment,
D. Form of Payment
1. A Participant shall receive his or her Account benefit in a single lump sum
payment of the entire balance in the Participant's Account.
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2. Notwithstanding any provision of the Plan to the contrary, a distributee
may elect, at the time and in the manner prescribed by the Plan Administrator, to have any
portion of an eligible rollover distribution that is equal to at least $200 paid directly to an eligible
retirement plan specified by the distributee in a direct rollover.
a. For purposes of this subparagraph, an "eligible rollover
distribution" is any distribution of all or any portion of the balance to the credit of the distributee,
except that an eligible rollover distribution does not include: any distribution that is one of a
series of 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 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
(determined without regard to the exclusion for net unrealized appreciation with respect to
employer securities); any hardship distribution described in Section 401(k)(2)(B)(i)(iv) of the
Internal Revenue Code; any hardship distribution described in Section 402(c)(4) of the Code;
and any other distribution(s) that is reasonably expected to total less than $204 during a year.
b. For purposes of this subparagraph, an "eligible retirement plan" is
an individual retirement account described in Code Section 408(a), an individual retirement
annuity described in Code Section 408(b), an annuity plan described in Code Section 403(a), an
annuity contract described in Code Section 403(b), an eligible plan under Code Section 457(b)
which is maintained by a state, political subdivision of a state and which agrees to separately
account for amounts transferred into that plan from this Plan, or a qualified trust described in
Code Section 401(a), that accepts the distributee's eligible rollover distribution.
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C. For purposes of this subparagraph, a distributee includes an
Employee or former Employee. In addition, the Employee's or former Employee's surviving
spouse and the Employee's or former Employee's spouse or former spouse who is the Alternate
Payee under a qualified domestic relations order, as defined in Section 414(p) of the Code, are
distributees with regard to the interest of the spouse or former spouse.
d. For purposes of this subparagraph, a "direct rollover" is a payment
by the Plan to the eligible retirement plan specified by the distributee.
C. This Plan does not accept contributions of eligible rollover
distributions.
K Required Minimum Distribution Requirements.
1. General Rule.
a. The requirements of this paragraph shall apply to any distribution
of a Participant's interest and shall take precedence over any inconsistent provisions of the Plan.
b. All distributions required under this paragraph shall be determined
and made in accordance with the Income Tax Regulations under section 401(a)(9) of the Code.
2. Required Beginning Date. The entire interest of a Participant must be
distributed or begin to be distributed no later than the Employee's required beginning date. The
required beginning date of a Participant is the first day of April of the calendar year following
the later of the calendar year in which the Participant attains age 70 112 or the date of actual
retirement.
3. Plan Distributions on Account of Death.
a. upon the death of a Participant whose payments have commenced,
a Beneficiary shall receive further payments only to the extent provided in accordance with the
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form of payment that was being made to the deceased Participant. The remaining portion of such
interest will continue to be distributed at least as rapidly as under the method of distribution
being used prior to the Participant's death.
b. Distribution beginning after death. If the Participant dies before
distribution of his or her interest begins, distribution of the Participant's entire interest shall be
completed by December 31 of the calendar year containing the fifth anniversary of the
Participant's death except to the extent that an election is made to receive distributions in
accordance with (1) or (2) below:
(1) if any portion of the Participant's interest is payable to a
designated beneficiary, distributions may be made over the life or over a period certain not
greater than the life expectancy of the designated beneficiary commencing on or before
December 31 of the calendar year immediately following the calendar year in which the
Participant died;
(2) if the designated beneficiary is the Participant's surviving
spouse, the date distributions are required to begin in accordance with (1) above shall not be
earlier than the later of (1) December 31 of the calendar year immediately following the calendar
year in which the Participant died and (2) December 31 of the calendar year in which the
Participant would have attained age 70 112.
If the Participant has not made an election pursuant to this subparagraph
by the time of his or her death, the Participant's designated Beneficiary must elect the method of
distribution no later than the earlier of (1) December 31 of the calendar year in which
distributions would be required to begin under this section, or (2) December 31 of the calendar
year which contains the fifth anniversary of the date of death of the Participant. If the Participant
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has no designated beneficiary, or if the designated Beneficiary does not elect a method of
distribution, distribution of the Participant's entire interest must be completed by December 31
of the calendar year containing the fifth anniversary of the Participant's death.
For purposes of subparagraph 5(b) above, if the surviving spouse dies after the
Participant, but before payments to such spouse begin, the provisions of subparagraph 5(b), with
the exception of paragraph (2) therein, shall be applied as if the surviving spouse were the
Participant.
For purposes of this subparagraph, any amount paid to a child of the Participant will be
treated as if it had been paid to the surviving spouse if the amount becomes payable to the
surviving spouse when the child reaches the age of majority.
For the purposes of this subparagraph 4, distribution of a Participant's interest is
considered to begin on the Participant's required beginning date (or, if subparagraph 4(c) above
is applicable, the date distribution is required to begin to the surviving spouse pursuant to
subparagraph 4(c) above). If distribution in the form of an annuity irrevocably commences to the
Participant before the required beginning date, the date distribution is considered to begin is the
date distribution actually commences.
F. Late Contributions
Contributions pursuant to Article III made on behalf of a terminated Employee after the
benefit commencement date shall not affect the form or amount of payments already being made
to the Participant or a Beneficiary. If that Participant is not currently employed by the Employer,
these contributions shall be paid directly to the Participant or Beneficiary as soon as
administratively feasible.
G. Reemployment After Benefits Have Commenced
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Benefits which are being paid to a Participant shall not be affected by the Participant's
subsequent employment with the Employer. Upon such employment, a new Account shall be
established for the Participant, pursuant to Article IV, to which any future Employer
contributions shall be allocated. Upon subsequent termination of employment, the new Account
shall be distributed in accordance with this Article V.
H. Return of Overpayments and Interest on Overpayment Amounts
A Participant, Beneficiary, or Alternate Payee shall remain responsible for repayment to
the Plan of any excess amounts received pursuant to a distribution should it be determined that
the Participant, Beneficiary, or Alternate Payee is not entitled to the entire amount he or she
actually received.
ARTICLE VI. BENEFICIARIES
A. Designation
Each Participant shall have the right to designate a Beneficiary, and shall have the right at
any time to revoke such designation or to substitute another Beneficiary subject to the following
limitation: in the event a married Participant elects a nonspouse Beneficiary, the Actuarial
Equivalent value of the benefit payable to such Beneficiary shall not exceed 50% of the
Participant's Account balance, and the Participant's spouse shall automatically be deemed the
Beneficiary for the remaining 50% of the account balance, unless the spouse consents to the
Beneficiary designation in a writing which is notarized, or witnessed by a plan representative. If
the spouse consents in this manner, a married Participant may designate a nonspouse Beneficiary
for the entire benefit or any portion thereof as part of an available form of payment contained in
this Plan.
B. Failure to Designate a Beneficiary
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If upon the death of a Participant there is no valid designation of Beneficiary on file with
the Plan Administrator, or the Beneficiary is deceased, then benefits shall be paid in the
following order of succession:
1. Payments shall be made to the surviving spouse, if the spouse survives the
Participant for 30 days;.
2. If there is no surviving spouse, payments shall be made in equal parts to
the surviving children, including adopted children, who survive the Participant for 30 days;
3. If there are no surviving children, payments shall be made in equal parts to
the surviving parents who survive the Participant for 30 days; or
4. If there are no surviving parents, payments shall be made to the
Participant's estate.
ARTICLE VII. AMENDMENT AND TERMINATION
A. Amendment
The City of Milton shall have the right to amend this Plan, at any time and from time to
time, in whole or in part. Such power to amend includes the right, without limitation, to make
retroactive amendments referred to in Section 401(b) of the Internal Revenue Code. However,
such right to amend the Plan shall be subject to the provisions of Paragraph C of this Article VII.
Further, no amendment of the Plan shall permit any assets of the Plan to be used to pay
contributions of the Employer under any other plan maintained by the Employer.
B, Termination, Partial Termination, or Complete Discontinuance of Contributions
Although the City of Milton has established the Plan with the bona fide intention and
expectation that it will continue the Plan indefinitely, the City of Milton may in its sole and
absolute discretion terminate the Plan in whole or part at any time without liability whatsoever
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for such termination. If the Plan shall be terminated, all investments shall remain in force until all
Participants' accounts have been completely distributed in accordance with the Plan.
C. Nonreversion
1. The corpus or income of the trust or custodial account may not be diverted
to or used for other than the exclusive benefit of the Participants or their Beneficiaries.
2. If Plan benefits are provided through the distribution of annuity or
insurance contracts, any refunds or credits in excess of Plan benefits (on account of dividends,
earnings, or other experience rating credits, or surrender or cancellation credits) will be paid to
the trust or custodial account.
3. If upon Plan termination all Plan liabilities are satisfied, any excess assets
arising from erroneous actuarial computation will revert to the Employer.
4. Any contribution made by the Employer because of a mistake of fact must
be returned to the Employer within one year of the contribution.
5. The Plan Administrator shall have no right to modify or amend the Plan
retroactively in such a manner as to reduce the benefits of any Participant accrued to date under
the Plan by reason of contributions made by the Employer prior to the modification or
amendment except to the extent that such reduction is permitted by the Internal Revenue Code.
VIII. MISCELLANEOUS
A. Limitation of Rights; Employment Relationship
Neither the establishment of the Plan, nor any modification thereof, nor the creation of
any fund or Account, nor the payment of any benefits, shall be construed as giving any
Participant or other person any legal or equitable right against the Employer, the Investment
Provider, the Plan Administrator or the Record Keeper, except as provided in the Plan and, in no
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event, shall the terms of employment of any Employee be modified or in any way be affected by
the Plan.
B. Transfer of Assets of Plan
In no event shall this Plan be merged or consolidated with any other plan, nor shall there
be any transfer of assets or liabilities from this Plan to any other plan, unless immediately after
such merger, consolidation or transfer, each Participant's benefits, if such other plan were then to
terminate, are at least equal to or greater than the benefits which the Participant would have been
entitled to had this Plan been terminated immediately before such merger, consolidation, or
transfer.
C. Safeguard Provision
Neither the Employer, Investment Provider, Record Keeper, or the Plan Administrator,
shall recognize any attempt to alienate amounts held on behalf of, or payable to, an Employee or
other person who is or who might become eligible for benefits under the Plan. Such amounts are
not subject to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or charge
of any kind, either voluntary or involuntary, before being received by the person entitled to the
amount under the terms of the Plan. An attempt to anticipate, alienate, sell, transfer, assign,
pledge, encumber, charge, or otherwise dispose of a right to amounts held under the plan is void.
Amounts held on behalf of, or payable to, an Employee or other person who is or who might
become eligible for benefits under the Plan are exempt from garnishment, execution, or levy.
D. Interpretation; Severability
The Plan hereby created shall be construed, administered and governed in all respects in
accordance with the Internal revenue Code and other pertinent federal laws, and the laws of the
State of Georgia, provided, however, that if any provision is susceptible to more than one
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interpretation, such interpretation shall be given thereto as is consistent with the Plan being a
qualified defined contribution plan within the meaning of Section 401(a) of the Internal Revenue
Code. In the case of any conflict between language of this Plan and of any Insurance Contract,
this Plan shall control. If any provision of this Plan shall be held by a court of competent
jurisdiction to be invalid or unenforceable, the remaining provisions of the Plan shall continue to
be fully effective.
E. Plan Administration
The Plan Administrator shall establish rules and regulations for administration of the
Plan, and shall be responsible for its interpretation. A determination by the Plan Administrator
shall be conclusive and binding upon all interested parties. The Plan Administrator shall have the
sole discretion, authority and responsibility to interpret and construe the Plan document
(including ambiguous provisions thereof) and to determine all factual and legal questions under
the Plan, including but not limited to the entitlement of Employees, Participants and
Beneficiaries and the amounts of their respective interests. The Trustee and other interested
parties may act and rely upon all information reported to them hereunder and need not inquire
into the accuracy thereof, nor be charged with any notice to the contrary. No rule, regulation or
interpretation shall discriminate in favor of persons who are highly compensated employees.
F. Form of Election
Any election or any alteration or revocation of a prior election by a Participant,
Beneficiary, or Alternate Payee for any purpose under this Plan shall be on forms or made in a
manner prescribed for that purpose by the Plan Administrator. To be effective, the forms
required or the required action for any purpose under this Plan must be completed and filed in
accordance with the requirements set forth herein, and in accordance with rules, regulations
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and/or procedural policies prescribed by the Plan Administrator. To be effective, an election
must be received by the Plan Administrator or the Plan Administrator's designee, such as the
Record Keeper, prescribed for the purpose of receiving the election information.
G. Domestic Relations Orders
Notwithstanding the nonalienation provisions in paragraph C "Safeguard Provision," the
Plan Administrator may direct that benefits be paid to someone other than a Participant or
Beneficiary pursuant to a valid qualified domestic relations order, executed by the Judge of a
competent court in accordance with applicable state law, and which has been accepted by the
Plan Administrator.
The Plan Administrator shall determine whether an order meets the requirements of this
section within a reasonable period after receiving an order. The Plan Administrator shall notify
the Participant and any Alternate Payee that an order has been received and indicate to the
Alternate Payee and Participant when the Plan has accepted the order. A separate account for the
Alternate Payee portion shall be established as soon as administratively feasible after the order
has been accepted by the Plan.
H. Participant Loans
This Plan contains no provision for the effecting of loans of individual Account balances
to Participants.
I. Qualified Military Service
Notwithstanding any contrary provisions of this Plan, with respect to qualified military
service, contributions shall be made and benefits and service credit be provided in accordance
with Section 414(u) of the Internal Revenue Code.
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