§ 62-163. Administration.

(a)

Powers of the city. The city shall be the plan sponsor and shall retain fiduciary responsibility for the plan. In addition, the city shall have the following powers and duties:

(1)

To appoint and remove, with or without cause, the service provider giving due consideration to recommendations, if any, of the advisory committee;

(2)

To appoint and remove, with or without cause, the trustee of any trust used to hold the assets of the plan;

(3)

To amend or terminate the plan pursuant to the provisions of section 62-164;

(4)

To engage an independent qualified public accountant, when required to do so by law, to prepare annually the audited financial statements of the plan's operation;

(5)

To take all actions and to communicate to the plan administrator and the service provider all necessary information to carry out the terms of the plan and trust; and

(6)

To exercise all such other powers and duties specifically granted to the city by the terms of the plan or any applicable law or ordinance.

(b)

Duties of the plan administrator. The plan administrator shall be the named fiduciary of the plan. As such, the plan administrator shall discharge his duties solely in the interests of the participants and beneficiaries of the plan and in accordance with the terms of the plan. In addition, the plan administrator shall have the following powers and duties:

(1)

To construe and interpret the provisions of the plan and to make all factual determinations relating to benefits under the plan;

(2)

To maintain or cause to be maintained and to provide such returns, reports, schedules, descriptions, and individual account statements as are required by law within the times prescribed by law; to furnish to the city, upon request, copies of any or all such materials; and, further, to make copies of such instruments, reports, descriptions, and statements as are required by law to be available for examination by participants and such of their beneficiaries who are or may be entitled to benefits under the plan in such places and in such manner as required by law;

(3)

To monitor, supervise and administer the agreement with the service provider;

(4)

To obtain from the city such information as shall be necessary for the proper administration of the plan;

(5)

To determine the amount, manner, and time of payment of benefits under the plan;

(6)

To appoint and retain such agents, counsel, and accountants needed for the purpose of properly administering the plan;

(7)

To pay expenses from the trust pursuant to section 62-160(b) and subsection (d) of this section;

(8)

To provide the advisory committee such information on the investment funds as is necessary for the advisory committee to perform its reviews and give due consideration to the advisory committee's recommendations as they may make from time to time; and

(9)

All such other powers and duties specifically granted to the plan administrator by the terms of the plan or any applicable law or ordinance and all such other powers and duties reasonably required to administer the plan in accordance with its provisions.

(c)

Duties of the service provider. Subject to the direction and control of the plan administrator, the service provider shall be responsible for the day-to-day operation of the plan; shall perform all nondiscretionary administrative functions in connection with the plan, including, but not limited to, the maintenance of participants' accounts, the provision of periodic reports of the status of each account and the disbursement of benefits on behalf of the city in accordance with the provisions of the plan; and shall have such other powers and duties as may be specifically set forth in the plan or as may be delegated to it by the city or the plan administrator in accordance with the provisions of subsection (d) of this section.

(d)

Allocation and delegation of responsibility. The city and the plan administrator may allocate and delegate responsibilities as follows:

(1)

The city and the plan administrator may establish such committees or subcommittees as they shall determine; may authorize one or more persons or any agent to execute or deliver any instrument or make any payment on their behalf; may retain counsel, employ agents, and provide for such clerical, accounting and consulting services as they may require in carrying out the provisions of the plan and may pay for such services using the assets of the plan; and may allocate among themselves or delegate to other persons or to the service provider all or such portion of their powers and duties under the plan, other than those granted to the trustee under the trust and to the human resources director as set out in this subsection (d), as they, in their sole discretion, shall decide. However, no allocation or delegation of any powers or duties to the service provider shall be effective unless and until the service provider accepts the allocation or delegation in writing. Any references in the plan to the city or the plan administrator shall include their respective delegates with respect to the powers or duties delegated.

(2)

The city allocates and delegates to the human resources director the responsibilities for the day-to-day operating procedures and processes over the plan's administration, including, but not limited to, employee education and training; plan marketing and communications; enrollment; coordination of rollovers and transfers; deferral changes; coordination between and among the employee, the service provider and the city; claim, benefit and loan origination and recommendation for approval or disapproval; reporting to participants, the city, service provider and IRS, as appropriate; employee deferral limit determination; and, subject to the approval of the plan administrator, the development of such operating procedures and forms considered necessary to effect the plan provisions. The human resources director shall assign these responsibilities only to an individual with the requisite plan training and expertise.

(3)

The city allocates and delegates to the finance director all of the powers and duties of the plan administrator, including, without limitation, those powers and duties under subsections (b) and (c) of this section, that are not delegated to the human resources director pursuant to subsection (d)(2) or to any other person under subsection (d)(1).

(e)

Establishment of rules. Subject to the limitations of the plan and, in the case of the service provider, the direction and control of the plan administrator, the plan administrator and the service provider shall establish rules and operating procedures and requirements for the completion of forms and provision of supporting documentation for the administration of the plan and the transaction of its business. The plan administrator shall have total and complete discretion to interpret the plan including, but not limited to, the discretion to:

(1)

Determine all questions arising in the administration, interpretation and application of the plan, including the power to construe and interpret the plan;

(2)

Decide all questions relating to an individual's eligibility to participate in the plan and/or eligibility for benefits and the amounts thereof;

(3)

Make all factual determinations relevant to the determination of eligibility for benefits or participation in the plan;

(4)

Make such adjustments which it deems necessary or desirable to correct any arithmetical or accounting errors; and

(5)

Determine the amount, form and timing of any distribution to be made under the plan.

In making decisions, the plan administrator shall be entitled to, but need not rely upon, information supplied by a participant, beneficiary or representative thereof. The plan administrator shall have full and complete discretion to determine whether a domestic relations order constitutes a qualified domestic relations order and whether the alternate payee under such an order otherwise qualifies for benefits under the plan. The plan administrator may correct any defect, supply any omission or reconcile any inconsistency in such manner and to such extent as shall be deemed necessary to carry out the purposes of this plan. The plan administrator's decision in such matters shall be binding and conclusive as to all parties, given deference in all courts of law to the greatest extent allowed by applicable law, and shall not be overturned or set aside by any court of law unless found to be arbitrary or capricious, or made in bad faith. The plan administrator shall adopt such rules governing the time, place and conduct of meetings as he may from time to time determine; provided, however, that any such rules shall comply with the provisions of all applicable laws.

(f)

Prudent conduct. The plan administrator shall use the degree of care, skill, prudence and diligence that a prudent person, acting in a like capacity and familiar with such matters would use in his conduct of a similar situation.

(g)

Protection of the city and plan administrator. The city and the plan administrator shall not be liable for the acts or omissions of the service provider, but only to the extent that such acts or omissions do not result from the city's or plan administrator's, as the case may be, failure to provide accurate or timely information as required or necessary for proper administrator of the plan. The city, the plan administrator or any officer, employee or agent of the city or the plan administrator shall not incur any liability individually or on behalf of any other individuals or on behalf of the city or the plan administrator for any act or failure to act made in good faith in relation to the plan or the funds of the plan. However, this limitation shall not act to relieve any such individual, the city or the plan administrator from a responsibility or liability for any fiduciary responsibility, obligation or duty under F.S. § 112.656(1) or any other applicable law of similar import.

(h)

Protection of the service provider. The service provider may rely upon any certificate, notice or direction purporting to have been signed on behalf of the city or the plan administrator which the service provider believes to have been signed by a duly designated official of the city or by the plan administrator. The service provider may rely upon any information from or statement provided by a plan participant who was employed by an employer other than the city for the purposes of determining catch-up contributions under section 62-159(d) or (e).

(i)

Removal of service provider. The service provider may be removed by the city at any time upon 60 days' prior written notice to the service provider. Upon the removal of the service provider, the city may appoint a successor service provider; failing such appointment, the city shall assume the powers and duties of service provider. Upon the removal of the service provider, any trust assets invested by or held in the name of the service provider shall be transferred to the trustee of the trust in cash or property, at fair market value, except that the return of trust assets invested in a contract issued by an insurance company shall be governed by the terms of that contract.

(j)

Advisory committee. The advisory committee shall review the performance of the funds in which the plan's assets are invested, the cost of such funds, the opportunities for diversification afforded participants by the investment funds available under the plan and the investment education and investment advice, if any, made available by the city to participants in connection with the plan. In November 2004, and for each extended term, if any, the advisory committee shall appear before the city commission and make a recommendation regarding the annual extension of the service agreement. If the city commission decides to approve an annual extension, it shall adopt a resolution authorizing the mayor to sign a written renewal agreement. Other than the powers, rights and duties contained in this subsection, the advisory committee shall have no other powers, rights and duties in connection with the plan. The advisory committee shall meet quarterly, shall appoint one of its members as chair and shall adopt such rules governing the time, place and conduct of its meetings as it may from time to time determine; provided, however, that any such rules shall comply with the provisions of all applicable laws.

(k)

Claim of benefits. A participant, employee or beneficiary shall notify the plan administrator in writing of a claim of benefits under the plan and shall file with the plan administrator the information required to establish his rights and benefits under the plan. The plan administrator shall take such steps as may be necessary to decide the claim of the participant, employee or beneficiary.

(l)

Appeal procedure. If any claim for benefits is denied by the plan administrator, the plan administrator shall notify the claimant in writing of such denial, setting forth the specific reasons and citing reference to specific provisions of the plan upon which the denial is based. An appeal period of 60 days after receipt of the notification of denial shall be granted, and such notification shall advise the claimant of the appeal procedure. The claimant shall file the appeal with the plan administrator, whose decision shall be final, to the extent provided by subsection (e) of this section.

(m)

Plan consultant. Commencing in the 2003-2004 plan year, the plan administrator shall hire a consultant in accordance with chapter 66 of this Code at city expense to assist in evaluating the overall performance of the service provider. The selection of such consultant shall be based upon the recommendation of a subcommittee composed o one employee member of the advisory board, one employee member of the 401(a) board of trustees, and the plan administrator.

(Ord. No. 4319-11, § 1, 2-22-2011)