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1993-04-20HK CITY OF OKEECHOBEE REGULAR CITY COUNCIL MEETING SUMMARY OF COUNCIL ACTION AGENDA A. Call meeting to order on April 20, 7.00 P.M. B. Invocation offered by Councilman Watford, Pledge of Allegiance led by Mayor Kirk. C. Mayor and Council attendance: Mayor James E. Kirk Councilmember Danny P. Entry Councilmember Michael G. O'Connor Councilmember Jerry E. Walker Councilmember Dowling R. Watford, Jr. Staff attendance: Attorney John R. Cook Administrator John R. Drago Clerk Bonnie S. Thomas Deputy Clerk Lane Gamiotea D. Motion to dispense with reading and approve the summary of Council Action for the Regular Meeting of April 6, 1993. COUNCIL ACTION Page 1 of 21 YES II NO II ABSENT Mayor Kirk called the April 20, 1993 meeting to order at 7.00 p.m. Councilmember Watford led the invocation; Mayor Kirk led the Pledge of Allegiance. Clerk Thomas called the roll. Present X Present X Present X Present X Present X Present X Present X Present X Present X Councilmember Entry made a motion to dispense with reading and approve the Summary of Council Action for the Regular Meeting of April 6, 1993,- seconded by Councilmember O'Connor. KIRK X ENTRY X O'CONNOR X WALKER X WATFORD X �I MOTION CARRIED. Ll 0 April21 ril 20, 1993- Regular u Jar Meeting - Page AGENDA COUNCILMEMBER ACTION YES NO ABSENT I E. Motion to approve Warrant Registers for March, 1993: Councilmember Watford made a motion to approve the Warrant Registers for March, 1993 in the amounts of General Fund - two hundred fourteen GENERAL FUND.............$214,345.16 thousand three hundred forty-five dollars, sateen cents ($214,345.16) and PUBLIC UTILITIES ......... $410,045.66 Pubic Utilities - four hundred ten thousand forty-five dollars, saty--six cents ($410,045.66); seconded by Councilmember Walker. KIRK X ENTRY X O'CONNOR X WALKER X WATFORD X MOTION CARRIED. REQUEST FOR THE ADDITION, DEFERRAL OR Mayor Kirk asked if there were any additions, deferral's or withdrawals of items WITHDRAWAL OF ITEMS ON TODAY'S AGENDA. on today's agenda. Administrator Drago announced NEW BUSINESS number "3" pay request amount should read $35,026.19, and NEW BUSINESS number "5" has been withdrawn from today's agenda. F. OPEN PUBLIC HEARING FOR ORDINANCE Mayor Kirk opened the PUBLIC HEARING at 7.05 p.m. for Ordinance ADOPTION adoption. 1. A. Motion to read by title only Ordinance 655 Councilmember Watford made a motion to read by title only, Ordinance No. restating the City of Okeechobee Retirement 655 restating the City of Okeechobee Retirement System for General System for General Employees - City Attorney Employees; seconded by Councilmember O'Connor. (Exhibit 1). KIRK X ENTRY X O'CONNOR X WALKER X WATFORD X MOTION CARRIED. 45 April rit 20 1993 - Regular Meeting - Page 3of21 AGENDA COUNCILMEMBER ACTION YES 11 NO ABSENT F. PUBLIC HEARING CONTINUED 1. A. Reading of Ordinance 655 continued. Attorney Cook read Ordinance No. 655 by title only as follows: "AN ORDINANCE OF THE CITY OF OBEECHOBEE AMENDING AND RESTATING THE CITY OF OlBECHOBEE RETIREDIENT SYSTEM FOR GENERAL EMPLOYEES AS ADOPTED BY ORDINANCE 419 AND AS SUBSEQUENTLY AMENDED; PROVIDING FOR DEFINITIONS; PROVIDING FOR MEMBERSHIP; PROVIDING FOR A BOARD OF TTeUSTZES; PROVIDING FOR FINANCES AND FUND MANAGEMENT; PROVIDING FOR CONTRIBUTIONS; PROVIDING FOR BENEFIT AMOUNTS AND ELIGIBILITY,• PROVIDING FOR DEATTI BENEFITS; PROVIDING FOR DISABILITY BENEFITS; PROVIDING FOR VESTING OF BENEFITS; PROVING OP77ONAL FORMS OF BENEFITS; PROVIDING FOR BENEFICIARIES; PROVIDING A CLAMS PROCEDURE PROVIDING FOR A ROSTER OF RETIREES; PROVIDING FOR A BOARD ATTORNEY AND PROFESSIONALS, PROVIDING FOR A MAXIMUM PENSION LBUTATION; PROVIDING FOR COMMENCEMENT AND DISTRIBUTION OF-BENEFTTS; PROVIDING MISCELLANEOUS PROVISIONS; PROVIDING FOR REPEAL OR MUHIVATION'OF TBE SYSTEM; PROVIDING FOR F.SEMPTION FROM EIFXUTIONAND NON -ASSIGNABILITY' PROVIDING FOR PENSION YALIDITY' PROVIDING FOR FORFEITURE OF PENSION UNDER CERTAIN CIRCUAISTANCES; PROVIDING FOR INDEMNVlF77CAHON, PROVIDING FOR TRANSFERS WITHIIN TAE CITY,• PROVIDING FOR CREDIT FOR MILITARY SERVICE PRIOR TO EMPLOYDMVT; PROVIDING FOR DIRECT TRANSFERS OF ELIGIBLE ROLLOVER DIS7RIBU770N, PROVIDING FOR CODIFICATION; PROVIDING FOR SEVERAMMY OF PROVISIONS; REPEALING ALL ORDINANCES ITV CONFLICT HEREWITHAND PROVIDING AN EFFECTIVE DATE" 1. B. Motion to adopt Ordinance 655. Councilmember Entry made a motion to adopt Ordinance No. 655; seconded by Councilmember O'Connor. 1. C. Public Comment. Mayor Kirk asked if there was any comments from the public? Attorney Scott Christiansen representing the Pension Boards addressed the Council explaining a paragraph needs to be added to Ordinance 655. Discussion was held among Council and Attorney Christiansen. April 20 1993 Regular eetin-Pa Page 1 AGENDA COUNCILMEMBER ACTION YES NO ABSENT F. PUBLIC HEARING CONTINUED 1. C. Ordinance 655 continued: Councilmember Watford made a motion to amend Ordinance 655 by adding the paragraph "Notwithstanding the previous paragraph the current City Administrator and any ft twe City Administrator or Administrative Assistant may, in the event he has elected to participate in another pension program within the first sixty (60) days of his employment as City Administrator or Administrative Assistant or within thirty (30) days of the Effective Date whichever is later, notify the Board and the City, in writing of his election to not be a Member of the System. In the event of any such election he shaU be barred from future membership of the System, to Section 2. subsection 1 on page four, seconded by Councilmember Walker. Vote on motion to amend the Ordinance No. 655: X KIRK X ENTRY X O'CONNOR X WALKER X WATFORD MOTION CARRIED. Discussion continued among Council. Councilmember Watford stated he wanted everyone to understand the present contribution to the pension from the City will not increase in the coming budget year. The 1994195 budget year contributions may be effected, however, because the City will then have the option to decrease its contribution. 1. D. Vote on Motion_ Vote on motion to adopt Ordinance No. 655 as amended: II KIRK X ENTRY X O'CONNOR X WALKER X WATFORD X MOTION CARRIED. Regular Meeting - PageApril 205of21 1993 - Re .......... AGENDA COUNCILMEMBER ACTION YES NO ABSENT F. PUBLIC HEARING CONTINUED 2. A. Motion to read by title only Ordinance 656 Councilmember Watford made a motion read by title only Ordinance 656 restating the City of Okeechobee Retirement restating the City of Okeechobee Retirement System for Firefighters; seconded System for Firefighters - City Attorney (Exhibit 2). by Councilmember Walker. KIRK X ENTRY X O'CONNOR X WALKER X WATFORD X MOTION CARRIED. Attorney Cook read Ordinance No. 656 by title only. "AN ORDINANCE OF THE CITY OF OBEECHOBEE AMENDING AND RESTATING THE CITY OF OREECROBEE RETIREMENT SYSTEM FOR FIREFIGHTERS AS ADOPTED BY ORDINANCE 420 AND AS SUBSEQUEMLY AMENDED; PROVIDING FOR DEFINITIONS; PROVIDING FOR MEMBERSHIP;; PROVIDING FOR A BOARD OF TRUSTTM; PROVIDING FOR FINANCES AND FUND MANAGEMENT; PROVIDING FOR CONTRIBUTIONS; PROVIDING FOR BENEFIT AMOUNTS AND ELIGIBILITY, PROVIDING FOR DEATH BENEFITS; PROVIDING FOR DLSABILITT BENEFITS; PROVIDING FOR VESTING OF BENEFITS; PROVING OPTIONAL FORMS OF BENEFITS; PROVIDING FOR BENEFICIARIES, PROVIDING A CLAIMS PROCEDURE., PROVIDING FOR A ROSTER OF RETIREES; PROVIDING FOR A BOARD ATTORNEY AND PROFESSIONALS; PROVIDING FOR A MAXIMUM PENSION LIMITATION; PROVIDING FOR COMMENCEMENT AND DISTRIBUTION OF BENEFITS; PROVIDING MUCELLANEOUS PROVISIONS, PROVIDING FOR REPEAL OR TERMM77ON OF THE SYSTEM; PROVIDING FOR F.MIP77ON FROM EXECUTION AND NON -ASSIGNABILITY' PROVIDING FOR PENSION VALIDITY' PROVIDING FOR FORFEITURE OF PENSION UNDER CERTAIN CIRCUMSTANCES; PROVIDING FOR INDEMNIFICATION; PROVIDING FOR TRANSFERS W173MV THE CITY, PROVIDING FOR CREDIT FOR MUJTARY SERVICE PRIOR TO EMPLOYMEW; PROVIDING FOR DIRECT TRANSFERS OF ELIGIBLE ROLLOVER DISTRIBUTION; PROVIDING FOR CODIFICATION; PROVIDING FOR SEVERABILITY OF PROVISIONS; REPEALING ALL ORDINANCES IN CONFLICT HEREWITHAND PROVIDING AN EFFEC77VE DATE" 47 • April 20, 1993 - Regular Meeting - Page 6 of 21 AGENDA COUNCILMEMBER ACTION JFYES 11 NO 11 ABSENT F. PUBLIC HEARING CONTINUED 2. B. Motion to adopt Ordinance 656. 2. C. Public Comment. 2. D. Vote on Motion. 3. A. Motion to read by title only Ordinance 657 restating the City of Okeechobee Retirement System for Police Officers - City Attorney (Exhibit 3). Councilmember Entry made a motion to adopt Ordinance No. 656, seconded by Councilmember O'Connor. Mayor Kirk asked if there was any comments from the public. There were none. Vote on motion to adopt Ordinance No. 656: KIRK ENTRY O'CONNOR WALKER WATFORD MOTION CARRIED. Councilmember Entry made a motion to read by title only Ordinance No. 657 restating the City of Okeechobee Retirement System for Police Officers; seconded by Councilmember Walker. KIRK ENTRY O'CONNOR WALKER WATFORD MOTION CARRIED. Attorney Cook read Ordinance No. 657 by title only: "AN ORDINANCE OF THE CITY OF OBEECHOBEE AMENDING AND RESTATING THE CITY OF OIEECHOBEE RETIREMENT SYSTEM FOR FIREFIGHTERS AS ADOPTED BY ORDINANCE 420 AND AS SUBSEQUENTLY AMENDED, PROVIDING FOR DEFINITIONS; PROVIDING FOR ; PROVIDING FOR A BOARD OF TRUSTEES; PROVIDING FOR FINANCES AND FUND MANAGEMENT; PROVIDING FOR CONTRIBUTIONS; X X X X X X X X X X - -Page7of21 Regular Meeting 19 3 R ul April 9 P 9 9 AGENDA COUNCILMEMBER ACTION YES NO ABSENT F. PUBLIC HEARING CONTINUED 3. A. Reading of Ordinance 657 continued. PROVIDING FOR BENEFIT AMOUNTS AND ELIGIBILITY; PROVIDING FOR DEATH BENEFITS; PROVIDING FOR DISABILITY BENEFITS; PROVIDING FOR VESTBVG OF BENEFIT'S; PROVING OPTIONAL FORMS OF BENEFFM, PROVIDING FOR BENEFICIARIES; PROVIDING A CLAIMS PROCEDURE; PROVIDING FOR A ROSTER OF RETIREES; PROVIDING FOR A BOARD ATTORNEY AND PROFESSIONALS, PROVIDING FOR A MAXUHIM PENSION LIDOTATION; PROVIDING FOR COMMENCEMENT AND DISTRIBUTION OF BENEFITS; PROVIDING AMCELLANEOUS PROVISIONS; PROVIDING FOR REPEAL OR TERMINATION OF THE SYSTEM; PROVIDING FOR EMIFTION FROM EXECUTION AND NON -ASSIGNABILITY' PROYIDTNG FOR PENSION VALIDITY' PROVIDING FOR FORFEITURE OF PENSION UNDER CERTAIN CIRCUMSTANCES; PROVIDING FOR TNDF.NNIMCATION; PROVIDING FOR TRANSFERS WITHIN TBE CITY, PROVIDING FOR CREDIT FOR MILITARY SERVICE PRIOR TO EKPLOD MVT, PROVIDING FOR DIRECT TRANSFERS OF ELIGIBLE ROLLOVER DISTR MUTION; PROVIDING FOR CODIFICATION; PROVIDING FOR SEVER,4RU ITY OF PROVISIONS, REPEALING ALL ORDINANCES IN CONFLICT HEREWITH AND PROVIDING AN EFFECTIVE DAT Z" 3. B. Motion to adopt Ordinance 657. Councilmember Walker made a motion to adopt Ordinance No. 657; seconded by Councilmembers Watford and Entry. 3. C. Public Comment. Mayor Kirk asked if there were any comments from the public. There were none. Attorney Cook commented that he went through these Ordinances (No.'s 655, 656 and 657). Attorney Christiansen has assured him he has covered all Federal and State requirements for pension plans. He asked Attorney Christiansen to explain to the Council, under indemnification (page 47 of Ord. 657) it say's to the extent not covered by insurance... etc... the City shall indemnify and hold harmless members of the Board for personal liability for damages and cost, etc ... this section should not be construed as to relieve any insurance company for payment of a claim under a policy. What this means is the pension board, through theft or whatever creates a loss in the fund or system, then the City bears all responsibility for that loss. There is liability insurance for this. 50 AGENDA F. PUBLIC HEARING CONTINUED 3. C. Discussion continued. 3. D. Vote on Motion. CLOSE PUBLIC HEARING G. NEW BUSINESS 1. Motion to approve a Utility Agreement between the City and HCA Realty, Inc. for water service - City Administrator (Exhibit 4). April 20, 1993 - Regular Meeting - Page 8 of 21 COUNCILMEMBER ACTION Attorney Christiansen explained the type of insurance Attorney Cook was speaking of is fiduciary insurance which only covers risk that the boards of trustees would have as a result of administering the pension plan. It is not something that any other employee or city official needs because they do not have fiduciary risks. The board can go out and spend money from the plan to purchase the insurance or the City can purchase it for the pension boards. It is one of the things we have on our list to do. The insurance is probably $2,500.00 to $3,500.00 per year for each board. It is my recommendation that the board purchase it. The ordinance provision states that there is no insurance to cover the trustees risk and the City agrees to indemnify those people. There being no further discussion Mayor Kirk called for a vote to adopt Ordinance No. 657. KIRK ENTRY O'CONNOR WALKER WATFORD MOTION CARRIED. Mayor Kirk closed the PUBLIC HEARING at 7:34 p.m. Councilmember Watford made a motion to approve a Utility Agreement between the City and HCA Realty, Inc. for water service; seconded by Councilmember O'Connor. In answer to Council's questions, Administrator Drago explained, this is a new development for a doctor's complex, the City has the 1,500 gallons per day capacity to issue, the plans are in compliance and all regular fees have been paid. The project has nine months to be completed. YES II NO II ABSENT X X X X X April 0 9 - - A 2 19 3 Regular Meeting Page 9 of 27 P 9 9 9 AGENDA COUNCILMEMBER ACTION YES NO ABSENT G. NEW BUSINESS CONTINUED 1. HCA Realty, Inc. continued: Vote on motion to approve water utility agreement: X KIRK X ENTRY X O'CONNOR X WALKER X WATFORD MOTION CARRIED. 2. Motion to approve a Utility Agreement between Councilmember Entry made a motion to approve a Utility Agreement between the City and HCA Really, Inc. for wastewater the City and HCA Realty, Inc. for wastewater service; seconded by service - City Administrator (Exhibit 5). Councilmember O'Connor Administrator Drago answered questions from Council. The City has the capacity for the 2,300 gallons per day, there seemed to be no problems with the plans. The project has fifteen months to completed and all regular fees have been paid. KIRK X ENTRY X O'CONNOR X WALKER X WATFORD X MOTION CARRIED. 3. Motion to approve a partial pay request to Better Roads in the amount of $35,026.19 - City Councilmember O'Connor made a motion to approve a partial pay request to Administrator (Exhibit 6). Better Roads in the amount of thirty -fare thousand twenty-six dollars, nineteen cents ($35,026.19) for the 1992 Paving Program; seconded by Councilmember Watford. Council asked various questions, Administrator Drago answered: this is the final pay request for Phase 1, excluding the retainer, Phase 11 is scheduled to begin by the first of May, and there are no problems to report at this time. 51 - f 1 - Page 2 April 20 1 993 Regular Meeting P AGENDA COUNCILMEMBER ACTION YES NO ABSENT G. NEW BUSINESS CONTINUED Vote on motion to approve partial pay request: 3. Better Roads continued: KIRK X ENTRY X O'CONNOR X WALKER X WATFORD X MOTION CARRIED. 4. Discuss obtaining a collection service for various Discussion was held among Council and Administrator Drago concerning outstanding accounts - City Administrator (Exhibit uncollectible accounts in the Public Utilities Department, uncollectible parking 7) tickets in the Police Department and unpaid public service fees in the Finance Department. Exhibit Seven contains a proposal from Maurice Conway, of CRS Collection and Research Services, stating he will place in collection any outstanding debts owed the City on a percentage fee only, (no collection, no fee) at a rate of 30% on all accounts with good addresses; and a 40% fee on accounts we have to skip trace. A monthly report will be supplied with the status of all outstanding accounts. Councilmember O'Connor made a motion to instruct Attorney Cook to draw go a contract between the City and CRS. Mr. Conway should begin on the 1991 uncollectible Public Utilities accounts. Administrator Drago will inform the Council on how many days is allowed before an account is turned over to CRS this will also be stated in the contract. The contract should also include service for outstanding debts from parking tickets public service fees and any monies owed to the City: seconded by Councilmember Walker. KIRK X ENTRY X O'CONNOR X WALKER X WATFORD X MOTION CARRIED. April 20 1993 - Regular Meeting - Page 11 of 21 AGENDA COUNCILMEMBER ACTION YES NO ABSENT G. NEW BUSINESS CONTINUED 5. Hear from Bion Technologies - Mr. Mike Norman Item was withdrawn from today's agenda. (Exhibit 8). 6. Discuss an Agricultural Use Plan Application for Following brief discussion, Council instructed Administrator Drago to submit the Wastewater Plant - City Administrator (Exhibit this item at the next regular meeting so they may hear from Bion before 9). making a decision on this issue. 7. Discuss Code Enforcement issues - Councilmember O'Connor explained to the Council a problem that was Councilmember O'Connor (Exhibit 10). present when he served on the City's Code Enforcement Board and is still present concerning repeat offenders. Property owners who have been cited wait until the day of the Code Board Meeting to clean up their property and then the case is dismissed. Once they find that they can do it this way, if they are cited again they wait to the day of the meeting again. This process is getting expensive because of the time and money involved in sending certified notices and certified second notices. Exhibit ten is a proposed ordinance which might help solve some of the problems. Proposed Ordinance No. 659 amends Chapter 2 of the Code Book by providing for. A definition of "repeat violation", - Adoption of State Statute, A $25.00 Adminishudve Fee should a second notice be sent to any violator plus any additional expense incurred in long distance phone charges, certified mail expense, recording charge, or any such other reasonable administrative expense incurred regardless of whether the violator should come into compliance with the cited ordinance or code prior to the public hearing on the violation; 53 54 of 1 - -Page12 2 April 0 1993 Regular ular Meeting 2 AGENDA COUNCILMEMBER ACTION YES NO ABSENT G. NEW BUSINESS CONTINUED 7. Ordinance 659 continued An A&zhdshmdine Fee of $25.00 for those persons who qualify as repeat violators plus any additional expense incurred in long distance phone charges, certified mail expense, recording charge, or any such other reasonable administrative expense incurred regardless of whether the violator should come into compliance with the cited ordinance or code prior to the public hearing on the violation. Councilmember Entry made a motion to read by title only. Ordinance No. 659 revising Code Enforcement Procedures and set May 4, 199j as a public hearing date; seconded by Councilmember Walker. X KIRK X ENTRY X O'CONNOR X WALKER X WATFORD MOTION CARRIED. Attorney Cook read Ordinance No. 659 by title only. "AN ORDINANCE OF THE CITY OF OKEECHOBEE, FLORIDA, WHICH REPEALS CODE SECTIONS 2-15 THROUGH 2- 3 OF THE CODE OF ORDINANCES, AND WHICH ENACTS AMENDED CODE SECTIONS 2.15 THROUGH 2-43, SUCH ADOPTS STATE STATUTES AND REVISES THE CODE ENFORCEMENT PROCEDURES FOR THE CITY OF OKEECHOBEE, FLORIDA, AND PROVIDING AN EFFECTIVE DATE" Councilmember Entry made a motion to approve the first reading of Ordinance No. 659; seconded by Councilmember O'Connor. KIRK X ENTRY X O'CONNOR X WALKER X WATFORD X MOTION CARRIED. April 20 1993 - Regular Meeting - Page 13 of 21 AGENDA COUNCILMEMBER ACTION YES NO ABSENT G. NEW BUSINESS CONTINUED ISSUE #1 8. Discuss Public Utilities issues - City Attorney Attorney Cook updated the Council on recent developments culminating (Exhibit 11). weeks and months of events that he and Attorney Mike Morrell have been involved in on behalf of the City, pertaining to the Comprehensive Plan Lawsuit between the City and County. Further stating that he had a copy of a status report prepared by the City and Attorney Morrell that was filed in Tallahassee, April 19, 1993, (yesterday), on the issue and would have this available for anyone who wants a copy. The Council will remember when we initiated a process with the County Comprehensive Plan last summer, among the primary reasons that initiated the lawsuit was: One we felt that the direction of the County wide utility that was set out in the County Comprehensive Plan seemed to attempt to bypass any input or participation of the City in the direction of services. Secondly. that the County Plan failed to address at all (and despite being directed by the Department of Community Affairs) the Utility Service Area of the City of Okeechobee. Since September of 1992, last year, we have repeatedly, formally by letter, informally by conversation attempted to meet with representatives from the County and the County Attorney to settle these issues. Mr. Morrell worked more formally with the County Attorney by letter. 1, myself worked more informally here with conversations with the County Attorney and the Planning and Zoning in the County to sit down and discuss these issues because we felt that they were not insurmountable and if in fact, probably could be settled explicitly. 55 COR April 20, 1993 - Regular Meeting Page 14 of 21 AGENDA COUNCILMEMBER ACTION IFYES NO ABSENT G. NEW BUSINESS CONTINUED 8. Public Utilities issues continued: The matter had to be set for hearing procedure through the process of "DOAH" - Department of Administrative Hearings. And we agreed in January with the County to continue the matter. It was set for hearing. We agreed to abate or stop certain discovery matters we were going through. The County agreed and we signed a stipulation that we would in January of '93 endeavor to continue settlement negotiations on the matter. That leads us up to the second progress report that was due yesterday. From January to April, in my opinion, virtually no effort was made by the County to settle this matter or discuss settlement. Early in April the County Attorney requested and we did arrange, a meeting of the respective engineers for the County and City to meet regarding the service area issues. The engineer arrived at the meeting not knowing why he was there because he had not been briefed ahead of time and absolutely nothing was accomplished in that meeting. Again knowing that the April 19th deadline was coming up Mr. Morrell was in touch with the County Attorney. The County Attorney promised to get with him last Wednesday and Thursday, April 14th and 15th, to prepare a joint stipulation we could send to DOAH and outline what progress we had made. He did not contact Mr. Morrell. Finally late yesterday afternoon Mr. Morrell was finally contacted (fax time and date are on letter) and at that time the County had wanted us to enter into another stipulation to continue the hearing, citing that we have made substantial progress in settlement of the case. In light of virtual lack of any progress from January to April, Mr. Morrell and I thought we could not on behalf of the City, in good faith, represent to DOAH that any progress had been made. To the contrary virtually none had been made. This report, herein, is sort of a culmination of what I have just related to you. It outlines the dates, the letters, the County's response and they are attached as exhibits showing when they were done and what they said, outlining our position to DOAH that we wanted the matter set for hearing again because there had been no progress for settlement. 57 April 20, 1993 - Regular Meeting - Page 15 of 21 AGENDA COUNCILMEMBER ACTION `YES IRSEN7T G. NEW BUSINESS CONTINUED 8. Public Utilities issues continued: ISSUE #2 - COUNTY/OBWA FRANCHISE Related with this report that we made to DOAH, is the other issue that we have recently come upon, that is the proposed Okeechobee County and Beach Water Franchise. Which, as you know is set for the April 29, 1993 County Commission Meeting. Keep in mind that the Comprehensive Plan Lawsuit commenced due to: (1) the County failure to address our utility service area in their plan and: (2j failure to address intergovernmental cooperation in the County with the City towards what direction utility service is going to take in this County. The issue of service area is very important to the City. Legally the Courts have held, and I will just briefly quote a little here from Court cases. "The essence of the concept of utilities serving the public is that it is in the best interest of the public that the entities, governmental or private, provide a utility service not be permitted to compete at the rates of service and that each such entity operate in an exclusive operation area." The whole purpose of that I think everyone knows, is that it is cost prohibitive and wasteful to allow different utilities to overlap service areas and try to keep customers. It's much more economical, which reflects in rates to have your own service area and serve that particular area. This franchise agreement, is a grant from the County to Beach Water of a right to provide water and wastewater service to customers in an area partly that is already served by Beach Water as well as areas presently not served by Beach Water. The so called service area granted by the County overlaps and intrudes in the service area that the City has claimed by Ordinance since 1983. Attorney Morrell and l have reached the unfortunate but inescapable conclusion that instead of cooperating with the City in settling the Comprehensive Plan suit on the service area, the County has been working behind the scenes to develop this franchise. So putting it simply the County has chosen to not address our concerns about service area but has rather chosen to give away a service area that overlaps our present service area and this is exactly the problem we wanted to avoid in the Comprehensive Plan Lawsuit. • April 20, 1993 - Regular Meeting - Page 16 of 21 AGENDA COUNCILMEMBER ACTION YES NO ABSENT G. NEW BUSINESS CONTINUED 8. Public Utilities issues continued: Our attempt since September of last year has been to sit down with the County and say okay lets look at areas you know where we have claimed by ordinance, you know what we have in the ground, you know where it is, we know what areas Beach Water actually has served and is able to serve. If we sit down we can discuss service areas and resolve it. I have not been given any orders or directions to express this opinion. I have talked with Mike Morrell about it, but l want to make it clear that l am not here to sabotage Beach Water's Plant or jeopardize the South Florida Water Management Grant to the County but the problem is that the Franchise is a threat to our entire service area. This board knows that the utility department is operated as a business and the successful operation of that department depends on customers and an expanded service area. We have spent a lot of money and we are fixing to spend a lot more on expanding water and wastewater service. Not only to improve what we have, but to extend it into the service area that we have established. My own legal opinion is that the attempt by the County and Beach Water to enter into this franchise without any participation by the City, particularly in light of the fact that it intrudes into our established service area is subject to a valid legal challenge. Now the Council's options vary from doing nothing and saying okay we do not mind if the County claims this as their service area and we do not mind if they give it away to Beach Water for wastewater and water in the south end of the County. l do not necessarily recommend that approach. Our other option is to place our objections on the record in writing, that I would confer with Mr. Morrell on that and notify the County and Beach Water, Water Management, DER and Farmer's Home. April 201993- Regular Meeting - Page 17of 1 AGENDA COUNCILMEMBER ACTION YES NO ABSENT G. NEW BUSINESS CONTINUED What we do after April 29th, assuming that the County is going to pass the 8. Public Utilities issues continued: franchise, which I assume they will, in my opinion, depends on whether the County is truly interested in discussing settlement of the Comprehensive Plan Case. Settling that case in all likelihood settles any question about the franchise and Beach Water's service area. Again regrettably, I have not seen any indication the County is interested in settling that suit and to the contrary, as I said, we believe they have delayed settlement in order to attempt to grant Beach Water this service area. I would like some Council direction that perhaps l get with Morrell and formulate our written response to the County prior to the April 29th meeting so we can have that on record. Mr. Morrell has clearly stated in his status report that with the time frame that he is suggesting and the pre-trial conferences he is suggesting is leaving the possibility of settlement with the County entirely open. l would, be more than happy to settle this case with the County tomorrow. We are not drawing a line in the sand and saying this is it. But we, Mike and 1, do not feel that the City should stand by and accept this challenge to the service area. l would like permission to place our position on the record, after April 29th the Council still has the option of. settling the Comprehensive Plan suit and the franchise matter, not doing an thing hing or filing suit. But I need to get something to the County Commission prior to April 29th so we can preserve our objections to the plan. Mayor Kirk stated for the record, on the letter in exhibit eleven from Beach Water to their customers and the letter given to the Council before the meeting from County Attorney John Cassells to Attorney Morrell: First, the letter from _Beach Water has made some accusations that are just simply not true to my knowledge: Paragraph One, last sentence "Without our own water treatment plant, our membership will be at the mercy of the City of Okeechobee on future water rates once our existing contract with the city expires." /f my memory serves me correctly we offered Beach Water a contract that I thought was too good. 59 C: 0 April 20 1993 - Regular Meeting - Page 18 of 21 AGENDA COUNCILMEMBER ACTION I YES NO ABSENT G. NEW BUSINESS CONTINUED 8. Public Utilities issues continued: Paragraph two, last sentence, "Your Board of Directors believes that the City will do everything it can to stop our efforts to build a new plant." Have we done something to stop these people from building a water plant. Where is this coming from? If we did something, / slept through it. Paragraph three, last sentence, "By working hand -in -hand with the County, the City will not be able to condemn our system and take it away." / consider all three of those items scare tactics. The letter that was transmitted by fax (to Morrell from Casse/ls): Paragraph "3" - "The two million dollar number submitted by the Finance Director was discussed at a meeting between the Chairman of the County Commission and the Mayor the previous Friday. Both the Mayor and the Chairman agreed that each government would provide the other with the figure for discussion. The County has yet to receive a number from the City." This statement is simply not true. Nobody mentioned $2 million at any point and time and place in this meeting it never came up. $1 million was mentioned but what was finally said was simply, within a reasonable time prior to your meeting we will get you a number that will be the maximum dollar amount that the County will put into a Utility Authority. / was told this number would be arrived at by polling all the County Commissioners. l responded by saying even though l did not like the direction this was moving in, that I would come to the City Council meeting with their number and ask you to give them a minimum that we would be willing to take because this is what they requested. That is not what they are saying here. l got the $2 million figure given to me ten minutes before the (Tuesday, April 6,1993) meeting started. l have no idea what is going on here. / am at a loss for words and every time l talk to someone, they do not know what is going on. l ask them where did the number come from, V do not know","nobody asked me'.' And then it says something about a point of discussion? 61 April 20, 1993 - Regular Meeting - Page 19 of 21 . .......... ... - I AGENDA COUNCILMEMBER ACTION YES 11 NO 11 ABSENT G. NEW BUSINESS CONTINUED 8. Public Utilities issues continued: We are way off base to where we started two to three months ago and it is very disturbing. l do not like this letter, I do not like the attorney's comment there. He was not in the meeting, I assume he was misinformed by his people. Mayor Kirk also informed the Council that the County has requested a workshop with the City to look at a utility authority on May 6, 1993 at 7.30 p.m. and asked that during all this discussion the Council be thinking whether you want to attend a workshop with the County. Councilmember Walker, asked concerning the issue of overlapping, are you saying this is the service area they are serving now, are they requesting more area to service? I would like to see two maps: one with the City's service area and one with Beach Water's service area and see if and how much they overlap. Attorney Cook explained that service area that that franchise would grant from the County to Beach Water is in essence the same service area that was in our last contract with Beach Water except that it deletes portions of U.S. Highway 441 South and Ousley Estates. Councilmember Walker, Attorney Cook and Administrator Drago discussed the service area Beach Water is proposing and the service area the City claimed in 1983 by the "201 " Ordinance. Councilmember Watford commented this has been a sore spot for a long time. When I first got this (exhibit eleven) my first thought was, number one it makes a mockery for everything that Mayor Kirk and Chairman Harvey were working for. It is just so ironic, we are always accused of being the bad guy, but if this does not convince somebody that it is not always the City, l do not know what it would take to do it. April 20, 1993 - Regular Meeting - Pagee 20 of 21 AGENDA COUNCILMEMBER ACTION JFY7ES NO ABSENT G. NEW BUSINESS CONTINUED 8. Public Utilities issues continued. The thing that really strikes me was I cannot believe the County would dare put this in a form of an ordinance on page 6, paragraph "L" „....after extensive negotiations commencing as early as 1986 between the association and the City..." maybe I missed some of these "extensive negotiations", I agree with the Mayor's comment. I was not involved in any extensive negotiations, it was discussed several times. I thought we made an awful fair contract. And it was kind of well, we do not want to do business with the City and we tried several times after they said that, are you sure? we are building a new plant. Coupled with that and the letter from the attorney it is really disappointing. Attorney Cook commented further that the County's impression is the City's service area is wherever we have a pipe buried in the ground. If we do not have a pipe in the ground it is the County's service area. And that is why Attorney Morrell and myself feel it is so very important that we have got to address this matter on service area. Councilmember Watford made a motion that we instruct the Attorney to draft the necessary comments to be made at the County Commissioners Meeting regarding the franchise agreement with Beach Water Association: seconded by Councilmember O'Connor. Councilmember Watford stated he wanted everyone to understand we are forced to do this to protect our system. And as Attorney Cook has said this could still be settled. We are not saying this cannot be settled we just need to make these comments for the record. Vote on motion: KIRK X ENTRY X O'CONNOR X WALKER X WATFORD X MOTION CARRIED. C1K April 20, 1993 - Regular Meeting - Page 21 of 21 AGENDA COUNCILMEMBER ACTION YES 11 NO 11 ABSENT]� G. NEW BUSINESS CONTINUED 8. Public Utilities issues continued: ADJOURNMENT Mayor NOTICE IS HEREBY GIVEN THAT IS ANY PERSON SHOULD DECIDE TO APPEAL ANY DECISION MADE A T THIS MEETING OF THE CITY COUNCIL, SUCH PERSON WILL NEED TO INSURE THAT A VERBATIM RECORD OF THE P OCEEDING IS MADE WHICH INCLUDES THE TESTIMONY AND EV,IDEN UPON WHICH THE APPEAL IS BASED. Jr E. Kirk, MAYOR 7 ATTEST: Bonnie S.Thomas,- CMC, CITY CLERIC Mayor Kirk then asked for discussion on the workshop offered by the County. Mayor Kirk felt a settlement can still be obtained on the Comprehensive Plan Lawsuit and a Utility Authority would be the best way to go for continuing to serve our community for water and wastewater. Council accepted the offer for a workshop on May6 , 1993, 7:30 p.m. at the HRS building on the condition that Mayor Kirk and Commission Chairman Harvey joint -chair the meeting. Provided the workshop be run by the City's rules of order, no public comments unless directly asked by a Councilmember or Commissioner. At the head table will be seated the five Councilmembers, five Commissioners, Attorney's, Administrator's and Clerk's. There being no further items on the agenda, Mayor Kirk adjourned the meeting at 8:55 p.m. _r.�^r: as,=ae=°,�„r.:•.",�^�`"�r�-�--^,_'°--•- =-�-�a?."';:�"'.. '!y -.�-': ,-asr- �_. -s+: .yam., �^*�m.�^, ,.�:;gl„� :�.°?';:�F'°?l': �-c'c'�"" .: .. -.. s. �66 Ott** 20)1q ccA -Tco D.m.41Z A.Ta-u ic co,& --o)atrq4)4� �Llom jqko)q,�5 �1 U C. YY`Qtiok % Counci a#cnchnc20 -u ry�40�k oaxma man Loca �od �}Q� Af�Q.nC�n nC2 1 � • � 1 1' �1�a• - I CAIA mo p,L c�2 � h�crhan � agok�u.�. lxk�t�har1E �ces&ta, �n' $m. 31iff- l6 LWIfCaa, — �,q� Uy5.6� 7 �il a-%m A. Aw k� 0& ULLiL"�ud �- Im 12fJ IV ix YN MZ) zm CLC "Sic IE (I Notwithstanding the previous paragraph, the current City Administrator and any future City Administrator or Administrative Assistant may, in the event he has elected to participate in another pension program, within the first sixty (60) days of his employment as City Administrator or Administrative Assistant or within thirty (30) days of the Effective Date, whichever is later, notify the Board and the City, in writing, of his election to not be a Member of the System. In the event of any such election, he shall be barred from future membership in the System. ,r I 0 0 A-fiU014 .cam AAWF _Anal if*jj &J9 AN ORDINANCE OF THE CITY OF OKEECHOBEE AMENDING AND RESTATING THE CITY OF � OKEECHOBEE RETIREMENT SYSTEM FOR GENERAL ! EMPLOYEES AS ADOPTED BY ORDINANCE 419 AND AS SUBSEQUENTLY AMENDED; PROVIDING FOR DEFINI- TIONS; PROVIDING FOR MEMBERSHIP; PROVIDING FOR A BOARD OF TRUSTEES; PROVIDING FOR FINANCES AND FUND MANAGEMENT; PROVIDING FOR CONTRI- BUTIONS; PROVIDING FOR BENEFIT AMOUNTS AND ELIGIBILITY; PROVIDING FOR DEATH BENEFITS; PROVIDING FOR DISABILITY BENEFITS; PROVIDING FOR VESTING OF BENEFITS; PROVIDING OPTIONAL FORMS OF BENEFITS; PROVIDING FOR BENEFICIARIES; PROVIDING A CLAIMS PROCEDURE; PROVIDING FOR. A ROSTER OF RETIREES; PROVIDING FOR A BOARD' ATTORNEY AND PROFESSIONALS; PROVIDING FOR A MAXIMUM PENSION LIMITATION; PROVIDING FOR' COMMENCEMENT AND DISTRIBUTION OF BENEFITS; ' PROVIDINGMISCELLANEOUSPROVISIONS; PROVIDING FOR REPEAL OR TERMINATION OF THE SYSTEM; PROVIDING FOR EXEMPTION FROM EXECUTION AND NON -ASSIGNABILITY; PROVIDING FOR PENSION VALIDITY; PROVIDING FOR FORFEITURE OF PENSION UNDER CERTAIN CIRCUMSTANCES; PROVIDING FOR INDEMNIFICATION; PROVIDING FOR TRANSFERS WITHIN THE CITY; PROVIDING FOR CREDIT FOR MILITARY SERVICE PRIOR TO EMPLOYMENT; PROVIDING FOR DIRECT TRANSFERS OF ELIGIBLE ROLLOVER DISTRIBUTIONS; PROVIDING FOR. { CODIFICATION; PROVIDING FOR SEVERABILII'Y OF PROVISIONS• REPEAUNG ALL ORDINANCES IN i CONFLICT HIMEWrTH AND PROV'IDD* AN EFFECTIVE j DATE. 1` _ _..�_ s_ _....,.i.c.+_...�_ _, ... �.. _. �. ...y.S_ �.'L..�f. .�:_ _,,..r.�. _. '''.•.:.-_.... ___ __..-_,.. .. o.•a�..:ss: ., �i.:4�+...�.�:{a6.�tiss .1�, a s.... �.st -. �.s.+. __ Ad d ge U-��k-jj Uc"k �t�tuR4 SUIX aO-,Ic� (t4AJ A) 0 hco b� Le- L7 Ac J060 I-qll Old - L�'P� ('mod 10,E (ASS kq aar�,�c �'/D�C'4 Dkrau�, u, AAhV.Rr_'_ M0Aq� (Nd2+�,', Ar it flff a Az i,i n c * 2. A r`&i&v.• A� OLd. tH -ate► LKLA W,CFL)tD CbLvidc�4 2 I -XI 000 two JW f I��F._;-��:.�_`�_,�� .�, °_ ►�?� �' .-:,�. �'^''��!-_ �w-��U 'mil T(�;�[1� AN ORDINANCE OF THE CITY OF OKEECHOBEE AMENDING AND RESTATING THE CITY OF OKEECHOBEE RETIREMENT SYSTEM FOR FIREFIGHTERS AS ADOPTED BY ORDINANCE 420 AND AS SUBSEQUENTLY AMENDED; PROVIDING FOR DEFINITIONS; PROVIDING FOR MEMBERSHIP; PROVIDING FOR A BOARD OF TRUSTEES; PROVIDING FOR FINANCES AND FUND MANAGEMENT; PROVIDING FOR CONTRIBUTIONS; PROVIDING FOR BENEFIT AMOUNTS AND ELIGIBILITY; PROVIDING FOR DEATH BENEFITS; PROVIDING FOR DISABILITY BENEFITS; PROVIDING FOR VESTING OF BENEFITS; PROVIDING OPTIONAL FORMS OF BENEFITS; PROVIDING FOR BENEFICIARIES; PROVIDING A CLAIMS PROCEDURE; PROVIDING FOR REPORTS TO THE DEPARTMENT OF INSURANCE; PROVIDING FOR A ROSTER OF RETIREES; PROVIDING FOR A BOARD ATTORNEY AND PROFESSIONALS; PROVIDING FOR A MAXIMUM PENSION LIMITATION; PROVIDING FOR COMMENCEMENT AND DISTRIBUTION OF BENEFITS; PROVIDINGMISCELLANEOUSPROVISIONS; PROVIDING 'FOR REPEAL OR TERMINATION OF THE SYSTEM; PROVIDING FOR EXEMPTION FROM EXECUTION AND NON -ASSIGNABILITY; PROVIDING FOR PENSION VALIDITY; PROVIDING FOR FORFEITURE OF PENSION UNDER CERTAIN CIRCUMSTANCES; PROVIDING FOR INDEMNIFICATION; PROVIDING FOR TRANSFERS • WITHIN THE CITY; PROVIDING FOR CREDIT FOR M[LITARY SERVICE PRIOR TO EMPLOYMENT; PROVIDING FOR DIRECT TRANSFERS OF ELIGIBLE, 'ROLLOVER DISTRIBUTIONS; PROVIDING FOR; CODIFICATION; PROVIDING FOR SEVERABILITY OF PROVISIONS • REPEALING ALL ORDINANCES IN CONFLICT Ai NHU AND PROVIDING AN EFFECTIVE, DATE. - - - - Tula • • 2, Z. 4 2. ✓n�-rex. � a�o� 4td (�5f� 7 ,4� 5 F 00 (617 i, k�� Z4 OF, NZ 7 - . 6 AN ORDINANCE OF THE CITY OF OKEECHOBEE AMENDING AND RESTATING THE CITY OF OKEECHOBEE RETIREMENT SYSTEM FOR POLICE OFFICERS AS ADOPTED BY ORDINANCE 421 AND AS SUBSEQUENTLY AMENDED; PROVIDING FOR DEFINITIONS; PROVIDING FOR MEMBERSHIP; PROVIDING FOR A BOARD OF TRUSTEES; PROVIDING FOR FINANCES AND FUND MANAGEMENT; PROVIDING FOR CONTRIBUTIONS; PROVIDING FOR BENEFIT AMOUNTS AND ELIGIBILITY; PROVIDING FOR DEATH BENEFITS; PROVIDING FOR DISABILITY BENEFITS • PROVIDING FOR VESTING OF BENEFITS • PROVIDING OPTIONAL _ FORMS OF BENEFITS• _PROVID 0 • i�� - wkzi V,� -b BENEFICIARIES. PROVIDING A CLAIMS PROVIDING FOR REPORTS TO THED E DEPARTMENT PROCEDURE; NNT OF INSURANCE; PROVIDING FOR A ROSTER OF RETIREES; PROVIDING FOR A BOARD ATTORNEY AND PROFESSIONALS; PROVIDING FOR A PENSION LIMITATION; PROVIDING FOR COMMENCEMENT AND DISTRIBUTION OF BENEFITS; PROVIDINGMISCELLANEOUSPROVISIONS; PROVIDING FOR REPEAL OR TERAMATION OF THE SYSTEM; PROVIDING FOR EXEMPTION FROM EXECUTION AND NON -ASSIGNABILITY; PROVIDING FOR PENSION " VALIDITY; PROVIDING FOR FORFEITURE OF PENSION UNDER CERTAIN CIRCUMSTANCES; PROVIDING FOR ` INDEMNIFICATION; PROVIDING FOR TRANSFERS WITHIN THE CITY; PROVIDING FOR CREDIT FOR MILITARY SERVICE PRIOR TO EMPLOYMENT; PROVIDING FOR DIRECT TRANSFERS OF ELIGIBLE w. ROLLOVER DISTRIBUTIONS; PROVIDING FOR' CODIFICATION; PROVIDING FOR SEVERABILITy OF� PROVISIONS; REPEALING ALL ORDINANCES IN !; CONFLICT HW EWI H AND PROVIDING AN EFFECTIVE DATE. 15' kk-.- -mvAa . 3- - l'arxn�ed cam � 0 • C•� LkA 7 P/4. 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AUU t� OAG�O-rU �t6 N%C IM 12nd I V i 416 AN ORDINANCE OF THE CITY OF OKEECHOBEE I 'AMENDING AND RESTATING THE CITY OF - OKEECHOBEE RETIREMENT RMENT SYSTEM FOR GENERAL EMPLOYEES AS ADOPTED BY ORDINANCE 419 AND AS - SUBSEQUENTLY AMENDED; PROVIDING FOR DEFINI TIONS; PROVIDING FORMEMSERSHIP; PROVIDING FOR A BOARD OF TRUSTEES; PROVIDING FOR FINANCES AND FUND MANAGEMENT; PROVIDING FOR CONTRI- BUTIONS; PROVIDING FOR BENEFIT AMOUNTS AND ELIGIBILITY; PROVIDING FOR DEATH BENEFITS- ._ PROVIDING FOR DISABILITY BENEFITS; PROVIDING FOR VESTING OF BENEFITS; PROVIDING OPTIONAL_ - FORMS OF BENEFITS; PROVIDING FOR BENEFICIARIES* PROVIDING A CLAIMS PROCEDURE; PROVIDING FOIi A ROSTER OF RETIREES; PROVIDING FOR A BOARD `Y ATTORNEY AND PROFESSIONALS; PROVIDING FOR A MAXIlVIUM PENSION LIMITATION; PROVIDING FOR'- COMMENCEMENT COMMENCEMENT AND DISTRIBUTION OF BENEFITS* Y` PROVIDINGMISCELLANEOUSPROVISIONS; PROVIDING - FOR REPEAL OR TERM[JNATION OF THE SYSTEM; " PROVIDING FOR EXEMPTION FROM EXECUTION AND NON -ASSIGNABILITY; PROVIDING FOR PENSION " VALIDITY; PROVIDING FOR FORFEITURE OF PENSION -• — UNDER CERTAIN CIRCUMSTANCES; PROVIDING FOR INDEMNIFICATION; PROVIDING FOR TRANSFERS - - -- WITHIN THE CITY; PROVIDING FOR CREDIT FOR MILITARY SERVICE PRIOR TO EMPLOYMENT; _. PROVIDING FOR DIRECT TRANSFERS OF ELIGIBLE . ROLLOVER DISTRIBUTIONS- PROVIDING FOR—.-----. CODIFICATION; PROVIDING FbR SEVERABn= OF PROVISIONS; REPEALING ALL ORDINANCES IN--------_.--- CONFLICTHEREWITH AND PROVIDING AN EFFECTIVE DATE. 2 rd �3 F I Aolc_� &/_ •Q:4,) , �..-cz% vu-P ��o�' �- d, .mil a��-�'-�'`°y` d > w_-,-c 4_t� ,2 0 pub Jsw� 24 p / 4. At*�; 4 AN ORDINANCE OF THE CITY OF OKEECHOBEE AMENDING AND RESTATING THE CITY OF OKEECHOBEE RETIREMENT SYSTEM FOR- FIREFIGHTERS AS ADur I ril BY ORDINANCE 420 AND AS SUBSEQUENTLY AMENDED; PROVIDING FOR - DEFINITIONS; PROVIDING FOR MEMBERSHIP* PROVIDING FOR A BOARD OF TRUSTEES; PROVIDING - - FOR FINANCES AND FUND MANAGEMENT; PROVIDING -FOR CONTRIBUTIONS; PROVIDING FOR BENEFIT AMOUNTS AND ELIGIBILITY; PROVIDING FOR DEATH BENEFITS; PROVIDING FOR DISABILITY BENEFITS- .---.. PROVIDING FOR VESTING OF BENEFITS; PROVIDING ter YiviiAL FORMS OF BENEFITS; PROVIDING FOR , - BENEFICIARIES; PROVIDING A CLAIMS PROCEDURE; PROVIDING FOR REPORTS TO THE DEPARTMENT OF INSURANCE; PROVIDING FOR A ROSTER OF RETIREES; PROVIDING FOR A BOARD ATTORNEY AND PROFESSIONALS; PROVIDING FOR A MAX]MUM PENSION LIMITATION; PROVIDING FOR COMMENCEMENT AND DISTRIBUTION OF BENEFITS; PROVIDINGMISC -r i -ANEOUSPROVISIONS; PROVIDING - - FOR REPEAL OR TERM NATION OF THE SYSTEM; _ PROVIDING FOR EXEMPTION FROM EXECUTION AND NON -ASSIGNABILITY; PROVIDING FOR PENSION—— ._-__ VALIDITY; PROVIDING FOR FORFEITURE OF PENSION UNDER CERTAIN CIRCUMSTANCES; PROVIDING FOR k INDE &URCATION; PROVIDING FOR TRANSFERS - WITHIN THE CITY; PROVIDING FOR CREDIT FOR -- MILITARY SERVICE PRIOR TO EMPLOYMENT' _PROVIDING FOR DIRECT TRANSFERS OF ELIGIBLL --- - ROLLOVER DISTRIBUTIONS; PROVIDING FOR --CODIFICATION; PROVIDING FOR SEVERABILTTY OF .- - PROVISIONS; REPEALING ALL ORDINANCES IN —CONFLICT CONFLICT HEREWITH AND PROVIDING AN EFFECTIVE DATE. Z Z. 2. r Q alz oz- �A.dd 'IA. rwl.��hi xicd by 41iL (OtC1l67 �� `ht""W yleM�. FCC"`tLL a: m as I V (ftk"-5� I/i IA— Oooj L�tW Otd &67 6q 4t�b AN ORDINANCE OF THE CITY OF OKEECHOBEE - --- - -- AMENDING AND RESTATING THE CITY OF OKEECHOBEE RETIREMENT SYSTEM FOR POLICE --- - OFFICERS AS ADOPTED BY ORDINANCE 421 AND AS SUBSEQQUENTLY AMENDED; PROVIDING FOR DEFINI'�'IONS• �PROVIDING FOR MEMBERSHIP; ' PROVIDING FOR A BOARD OF TRUSTEES; PROVIDING !i FOR FINANCES AND FUND MANAGEMENT; PROVIDING I FOR CONTRIBUTIONS; PROVIDING FOR BENEFIT "! AMOUNTS AND -ELIGIBILITY; PROVIDING FOR DEATH - --- -- BENEFITS; PROVIDING FOR DISABILITY BENEFITS PROVIDING FOR VESTING OF BENEFITS; PROVIDING ` - i OPTIONAL FORMS OF BENEFITS; PROVIDING FOR BENEFICIARIES; PROVIDING A CPROCEDURE; PROVIDING FOR REPORTS TO THE DEPARTMENT OF _ 1 _ INSURANCE; PROVIDING FOR A ROSTER OF RETIREES; PROVIDING FOR A BOARD ATTORNEY AND PROFESSIONALS; PROVIDING FOR A MAC PENSION LIMITATION; PROVIDING FOR COMMENCEMENT AND DISTRIBUTION OF BENEFITS; } PROVIDINGMISCELLANEOUSPROVISIONS; PROVIDING FOR REPEAL OR TERMINATION OF THE SYSTEM - IPROVIDING ' ( PROVIDING FOR EXEMPTION FROM EXECUTION AND 1 NON -ASSIGNABILITY; PROVIDING FOR PENSION -- I VALIDITY; PROVIDING FOR FORFEITURE OF PENSION UNDER CERTAIN CIRCUMSTANCES; PROVIDING FOR _ ._... _ _ ..-.. INDEMNIFICATION; PROVIDING FOR TRANSFERS WITHIN THE CITY; PROVIDING 15OR CREDIT FOR MILITARY SERVICE PRIOR TO EMPLOYMENT; -PROVIDING FOR DIRECT TRANSFERS OF ELIGIBLE - ROLLOVER DISTRIBUTIONS; PROVIDING FOR CODIFICATION; PROVIDING FOR SEVERABILITY OF PROVISIONS; REPEALING ALL ORDINANCES IN CONFLICT HEREWITH AND PROVIDING AN EFFECTIVE - -.- ... i DATE. ZAd I� Wo , C I rA0 rtca4wdkzd 0 ~ ' � || - K» JAC. 2 A A A . | ~ / L - 2. At LEL AC�k ^� ^� ° ^^ J4, +I'`tlat'fln �O—�PP�-ov�e, o. {xu�'t+�-f�l �,uen�,__�_. K�#ic. Raod�, Ln ._-Qnrvu�in q�'?; 02(o.2�_-� ��ixch ._..�(,� PIP i j�/�L,�i�� `' - _%GL�'r" � I�Lc.Q, ` �..k- G�—a� �.o Q �(Lj � . _... 07- Jit�k� rLoxi&x-olt56-8) Iz r-A a d� !� a -44 Q& 1-a wu� �a 0,9 5- CITY OF OKEECHOBEE � CITY COUNCIL MEETING OFFICIAL AGENDA A. Call Meeting to order on April 20, 1993, at 7:00 p.m. B. Invocation offered by Councilmember Watford, Pledge of Allegiance led by Mayor Kirk. C. Mayor and Council Attendance: Mayor James E. Kirk Councilmember Danny P. Entry Councilmember Michael G. O'Connor Councilmember Jerry E. Walker Councilmember Dowling R. Watford, Jr. Staff Attendance: City Attorney Cook City Administrator Drago City Clerk Thomas Deputy Clerk Gamiotea D. Motion to dispense with reading and approve the Summary of Council Action for the Regular Meeting • of April 6, 1993. E. Motion to approve Warrant Registers for March, 1993. General Fund $214,345.16 Public Utilities $410,045 66 REQUEST FOR THE ADDITION, DEFERRAL OR WITHDRAWAL OF ITEMS ON TODAY'S AGENDA -2- F. OBUC HEARING FOR ORDINANCE ADOPTION 1. A. Motion to read by title only Ordinance 655 restating the City of Okeechobee Retirement System for General Employees - City Attorney (Exhibit 1) B. Motion to adopt Ordinance 655. C. Public Comment. D. Vote on Motion. 2. A. Motion to read by title only Ordinance 656 restating the City of Okeechobee Retirement System for Firefighters - City Attorney (Exhibit 2) B. Motion to adopt Ordinance 656. C. Public Comment. D. Vote on Motion. -3- C� J F. PYgK HEARING FOR ORDINANCE ADOPTION CONTINUED WIF A. Motion to read by title only Ordinance 657 restating the City of Okeechobee Retirement System for Police Officers - City Attorney (Exhibit 3) B. Motion to adopt Ordinance 657. C. Public Comment D. Vote on Motion. CLOSE PUBLIC HEARING G. NEW BUSINESS 1. Motion to approve a Utility Agreement between the City and HCA Realty, Inc. for water service - City Administrator (Exhibit 4) 2. Motion to approve a Utility Agreement between the City and HCA Realty, Inc. for wastewater service - City Administrator (Exhibit 5) 3. Motion to approve a partial pay request to Better Roads in the amount of $35,026.20 - City Administrator (Exhibit 6) r: -4- G. N US/NESS CONTINUED 4. Discuss obtaining a collection service for various outstanding accounts - City Administrator (Exhibit 7) 5. Hear from Bion Technologies - Mr. Mike Norman (Exhibit 8) 6. Discuss an Agricultural Use Plan Application for the Wastewater Plant - City Administrator (Exhibit 9) 7. Discuss Code Enforcement issues - Councilmember O'Connor (Exhibit 10) 8. Discuss Public Utilities issues - City Attorney (Exhibit 11) ADJOURNMENT NOTICE IS HEREBY GIVEN THAT IF ANY PERSON SHOULD DECIDE TO APPEAL ANY DECISION MADE AT • THIS MEETING OF THE CITY COUNCIL, SUCH PERSON WILL NEED TO INSURE THAT A VERBATIM RECORD OF THE PROCEEDING IS MADE WHICH INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS BASED. CHRISTUNSEN & DEHNER, P.A. 2975 BEE RIDGE ROAD SCOTT R. CHRISTIANSEN SUITE C H. LEE DEHNER SARASOTA, FLORIDA 34239 February 19, 1993 Mr. John J. Drago, City Administrator City of Okeechobee 55 S.E. Third Avenue Okeechobee, Florida 34974 Re: The City of Okeechobee Pension Plans Dear Mr. Drago: -0 /1 TELEPHONE (813) 922-0200 TELECOPiER (813) 923-5683 e As you know, our firm represents the Boards of Trustees of your General Employees', Firefighters' and Police Officers' Pension Trust Funds. After our presentation to the City Council last year, I understand the City Council budgeted no moneq for benefit improvements for the police officers and firefighters but did budget 1 % of payroll for contributions into the General Employees' Pension Plan. AccordingI , the pension boards have, based upon, the most recent actuarial information, reassessed the possibilities for proposing benefit increases to the pension plans. Based on favorable actuarial experience and the overfunding of the Police Officers and Firefighters' Pension Plans resulting from excess employee contributions, we have established that benefit improvements can be made to the Police Officers' and Firefighters' Pension Plans without the need for any City contributions. Accordingly, the Board of Trustees of the Police Officers' Pension Plan is recommending the following benefit improvements: 1. Use gross earnings rather than base pay in calculating average final compensation. 2. Increase the benefit rate to 3 3. Provide for normal retirement at 25 years of service, regardless of age. 4. Provide for a service connected disability benefit of at least 42 % of average final compensation. 5. Provide for non -service connected disability benefit of at least 25 % of final average final compensation. The Board of Trustees of the Firefighters' Pension Plan is recommending an increase in the benefit rate to 2.7 %. The Board of Trustees of the General Employees' Pension Plan is recommending an increase in the benefit rate to 1.75 % . This benefit increase will require the City to contribute .92 % of payroll. This amount is within the amount budgeted by the City Council. I enclose with this letter updated proposed ordinances for consideration by the City Council. These ordinances contain some minor format changes, but also include provisions • 0 Mr. John J. Drago, City Administrator February 19, 1993 Page 2 which would prevent members from receiving disability pensions for disabilities resulting from a condition which pre-existed the time when the member became an employee of the City. In addition, we have included language which meets the requirements of the Internal Revenue Code for treating direct transfers of eligible rollover distributions. I also enclose copies of the comparative summary evaluation results which were prepared by the actuarial firm of Kruse, O'Connor & Ling, Inc., showing the cost of the plan both before and after the proposed changes and indicating that no contributions are required for the Police Officers or Firefighters' Pension Plans and that .92 % of payroll is required from the City in the General Employees' Pension Plan. Since the enclosed ordinances are substantially the same as those previously provided and since most of the members of the City Council are familiar with the proposal recommended by the pension boards, we are requesting that these ordinances be placed on an agenda of the City Council within the next 30 days. Please contact me immediately once these ordinances have been placed on an agenda so that I can arrange to be present to answer any questions. Thank you for your cooperation. Yours v ly, Scott R. Christiansen SRC/dht cc: Ms. Theora P. Braccialarghe, with enclosures Ms. Bernice Elders, with enclosures • • CITY OF OKEECHOBEE POLICE OFFICERS' RETIREMENT SYSTEM CURRENT AND PROPOSED MPROVED.�a&L-4kexi6 AVERAGE FINAL Average bnk compensation over the highest COMPENSATION (AFC) consecutive 5 years of the last 10. NORMAL RETIREMENT ELIGIBILITY Age 60 and 10 years of credited service or 30 years of credited service BENEFIT 2.0 % x AFC x years of credited service EARLY RETIREMENT ELIGIBILITY Age 55 and 10 years credited service BENEFIT AMOUNT Deferral accrued benefit p= immediate accrual benefit, actuarially reduced DISABILITY ELIGIBILITY IN -LINE NOT IN -LINE BENEFIT AMOUNT IN -LINE NOT IN -LINE PRE -RETIREMENT DEATH NOT VESTED VESTED ELIGIBLE FOR RETIREMENT CONTRIBUTIONS EMPLOYEES STATE CITY VESTING OTHER SIGN)FICAM CHANGES Day One Day One Same as early retirement Same as early retirement Return of contributions with interest 50% of present value of vested accrued benefit Accrued retirement benefit, 10 year certain and life 5% Premium tax refund Amount necessary to pay current coats and amortize past service cost over 40 years Lou than 10 years- return of contribution with interest 10 years or more- accrued benefit deferred to normal retirement age or return of contribution rxurualnu rmrxvvmm�ry i Average 191d compensation of the five highest of the last 10. Age 60 and 10 yeas of credited service or 21 years of credited service 2&1 x AFC x years of credited service No Change No Change, except 3.0 % multiplier No Change After 5 years service Change multiplier to 3.0%; minimum benefit 42 % AFC Change multiplier to 3.0 %; minimum benefit 25 % AFC No Change No Change No Change No Change No Change No Change No Change No Change Add 'pick-up" plan Add Claims Procedures E. Employer Normal Cost (for current year) 34,009 (25,973) As % of Payroll 8.57% MOM F. Fiscal Year to which Contributions Apply 10/1/92 to 10/1/92 to 9/30/93 9/30/93 G. Total Required City and State Contributions if paid quarterly during the fiscal year shown in (F) 35,660 0 As % of Payroll 8.98 H. Estimated State Premium Tax Refund 50,307 50,307 As % of Payroll 12.67% 13.58% I. Balance Required from City 0 0 As % of Payroll _ _ J. Estimate of Required City and State Contribution for the fiscal year beginning one year after the valuation date, as % of payroll 8.98% 0.00% CITY OF OKEECHOBEE FIREFIGHTERS' Ru& jL inr.LvJ[ENT SYSTEM / CURRENT AND PROPOSED IMPROVED BENEFITS CURRENT BENEFIT PROPOSED IMPROVEMENTS AVERAGE FINAL Average basic compensation over the highest Average basic compensation over the COMPENSATION (AFC) consecutive 5 years of the last 10. highest 5 years of the last 10. NORMAL RETIREMENT ELIGIBILITY Age 60 and 10 years of credited service or No Change 30 years of credited service BENEFIT 2.0 % x AFC x years of credited service 2.7 % x AFC x years of credited service EARLY RETIREMENT ELIGIBILITY Age 55 and 10 years credited service No Change BENEFIT AMOUNT Deferred accrued benefit QK immediate No Change, except 2.7% multiplier accrued benefit, actuarially reduced DISABILITY ELIGIBILITY IN -LINE Day One No Change NOT IN -LINE Day One After 5 years service BENEFIT AMOUNT IN -LINE Same as early retirement No Change, except change multiplier to 2.7 % NOT IN -LINE Same as early retirement No Change, except change multiplier to 2.7 % PRE -RETIREMENT DEATH NOT VESTED Return of contributions with interest No Change VESTED 50% of present value of vested accrued No Change benefit ELIGIBLE FOR Accrued retirement benefit, 10 year certain No Change RETIREMENT and life CONTRIBUTIONS EMPLOYEES 5 % No Change STATE Premium tax refund No Change CITY Amount necessary to pay current costs and No Change amortize past service coat over 40 years VESTING Less than 10 years- return of contribution No Change with interest 10 years or more- accrued benefit deferred No Change to normal retirement age or return of contribution OTHER SIGNIFICANT Add *pick-up• plan CHANGES Add Claims Procedures otu�a.r B. Actuarial Present Value of Projected Benefits C. Valuation Assets D. Actuarial Present Value of Prospective Contributions (B)-(C) E. Employer Normal Cost (for current year) As % of Payroll F. Fiscal Year to which Contributions Apply G. Total Required City and State Contributions if paid quarterly during the fiscal year shown in (F) As % of Payroll H. Estimated State Premium Tax Refund As % of Payroll I. Balance Required from City As % of Payroll J. Estimate of Required City and State Contribution for the fiscal year beginning one year after the valuation date, as % of payroll 646,773 487,035 396,254 396,254 250,519 90,781 16,469 5,003 7.83% 2.38% 10/1/92 to 10/1/92 to 9/30/93 9/30/93 17,268 5,246 8.21% 2.49% 17,717 17,717 8.42% 8.42% 8.21% 1 2.49% F • • C1TY OF OKEEMOBEE GENmut EMPLOYEES, CURRENT AND PROPOSED 1N1PROVED ...,,.LirrjLjs , CURRENT BENEFIT PROPOSED IMPROVEMENTS AVERAGE FINAL Average basic compensation over the highest Average basic compensation over the COMPENSATION (AFC1 consecutive S years of the lad 10. highest S years of the lad 10 NORMAL RETIREMENT ELIGIBILITY Age 65 and 5 yeas of creditedservice or 30 No Change years of credited service BENEFIT 1.6% x AFC x years of credited service 1.75% x AFC x years of credited service EARLY RETIREMENT ELIGIBILITY Age 60 and 10 years credited service No Change BENEFIT AMOUNT Deferred accrued benefit 4I immediate No Change, except 1.7S% multiplier accrued benefit, actuarially reduced DISABILITY ELIGIBILITY Disabled so as to be incapable of further service with the City IN -LINE Day One No Change NOT IN -LINE Day One No Change BENEFIT AMOUNT INAINE Same as early retirement No Change, except 1.75% multiplier NOT IN -LINE Same as early retirement No Mange, except 1.75% multiplier PRE -RETIREMENT DEATH NOT VESTED Return of contributions with interest No Change VESTED 50% of present value of vested accrued No Change benefit ELIGIBLE FOR Accrued retirement benefit, 10 year No Change RETIREMENT certain and life EMPLOYEES 5 % No Change STATE Premium tax refund No Change CITY Amount necessary to pay current costs and No Change amortize past service cost over 40 years VESTING Leas than 5 years- return of contribution No Change with interest 5 years or more- accrued benefit deferred to No Change normal retirement age or return of contribution OTHER SIONIFICANT Add *pick-up' plan CHANGES Add Claims Procedures -V*w4—a P .:• .v.v :i.v .. v::w:;..y .':, �.. :. .. ., .. .:. +}rQ:.ii:iri •r. •v"''i'�•�;::r:�;4 .i:r.::>•' ':.�' ::':v::::>•.:: .::.•.::.: ..x�,..•.;.}+err.: •,... � � :' : � , ::.::�::•�:'..<.<.;:r::;<:::::::::::::.::::;� :�ENERAt:;EMPtOYEES °�:`::>`:'': '::.�:<:.:::':�":;..>..,. •...,::..:'>::..;.....:rr:<::;:.,.r:. :` C+1V�PR4TVr:SUMMARY Q:VALUATI0i::.SU.4TS ::: `: ':::;>:. •:.:.<:r < :rk:;>,:>::< O B HOW Old E. Employer Normal Cost (for current year) As % of Payroll F. Fiscal Year to which Contributions Apply G. Total Required City Contributions if paid quarterly during the fiscal year shown in (F) As % of Payroll H. Estimate of Required City Contributions for the fiscal year beginning one year after the valuation date, as % of payroll 8,084 (4,654) 0.88% (0.51)% 10/1/92 to 10/1/92 to 9/30/93 9/30/93 8,476 0 0.92% -- 0.92% 1 0.00% F ORDINANCE NO. 5 AN ORDINANCE OF THE CITY OF OKEECHOBEE AMENDING AND RESTATING THE CITY OF OKEECHOBEE RETIREMENT SYSTEM FOR GENERAL EMPLOYEES AS ADOPTED BY ORDINANCE 419 AND AS SUBSEQUENTLY AMENDED; PROVIDING FOR DEFINI- TIONS; PROVIDING FOR MEMBERSHIP; PROVIDING FOR A BOARD OF TRUSTEES; PROVIDING FOR FINANCES AND FUND MANAGEMENT; PROVIDING FOR CONTRI- BUTIONS; PROVIDING FOR BENEFIT AMOUNTS AND ELIGIBII.ITY; PROVIDING FOR DEATH BENEFITS; PROVIDING FOR DISABILITY BENEFITS; PROVIDING FOR VESTING OF BENEFITS; PROVIDING OPTIONAL FORMS OF BENEFITS; PROVIDING FOR BENEFICIARIES; PROVIDING A CLAIMS PROCEDURE; PROVIDING FOR A ROSTER OF RETIREES; PROVIDING FOR A BOARD ATTORNEY AND PROFESSIONALS; PROVIDING FOR A MAXIMUM PENSION LIMITATION; PROVIDING FOR COMMENCEMENT AND DISTRIBUTION OF BENEFITS; PROVIDING MISCELLANEOUS PROVISIONS; PROVIDING FOR REPEAL OR TERMINATION OF THE SYSTEM; PROVIDING FOR EXEMPTION FROM EXECUTION AND NON -ASSIGNABILITY; PROVIDING FOR PENSION VALIDITY; PROVIDING FOR FORFEITURE OF PENSION UNDER CERTAIN CIRCUMSTANCES; PROVIDING FOR INDENEgMCATION; PROVIDING FOR TRANSFERS WITHIN THE CITY; PROVIDING FOR CREDIT FOR MILITARY SERVICE PRIOR TO EMPLOYMENT; PROVIDING FOR DIRECT TRANSFERS OF ELIGIBLE ROLLOVER DISTRIBUTIONS; PROVIDING FOR CODIFICATION; PROVIDING FOR SEVERABILITY OF PROVISIONS; REPEALING ALL ORDINANCES IN CONFLICT HEREWITH AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Okeechobee General Employees are presently provided pension and certain other benefits under Ordinances of the City of Okeechobee and; WHEREAS, the City Council desires to clarify and restate the provisions of the General Employees' Retirement Plan to consolidate all prior ordinances and Code provisions and to incorporate Federal law; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF OKEECHOBEE, 1 1A • • A*% SECTION 1: That the City of Okeechobee Retirement System foAG eral Employees, as adopted by Ordinance 419 and as subsequently amended, be and the amended and restated as set forth in the document designated CITY OF OKEECHOBEE MUNICIPAL GENERAL EMPLOYEES' PENSION TRUST FUND, attached hereto and made a part hereof. -SECTION 2: Specific authority is hereby granted to codify and incorporate this Ordinance in the existing Code of Ordinances of the City of Okeechobee. SECTION 3: All Ordinances or parts of Ordinances in conflict herewith be and the same are hereby repealed. SECTION 4: If any section, subsection, sentence, clause, phrase of this ordinance, or the particular application thereof shall be held invalid by any court, administrative agency, or other body with appropriate jurisdiction, the remaining section, subsection, sentences, clauses, or phrases under application shall not be affected thereby. .SECTION S.: That this Ordinance shall become effective upon adoption. Introduced on first reading and set for public hearing this 1993. 11 n. Passed on second and final reading this day of 1993. ATTEST: CITY CLERK MAYOR day of 0 • CITY OF OKEECHOBEE MUNICIPAL GENERAL EMPLOYEES' PENSION TRUST FUND CITY OF OKEECHOBEE MUNICIPAL GENERAL EMPLOYEES' PENSION TRUST / TABLE OF CONTENTS SECTION PAGE NUMBER DEFINITIONS 1 MEMBERSHIP 4 BOARD OF TRUSTEES 4 FINANCES AND FUND MANAGEMENT 6 CONTRIBUTIONS 12 BENEFIT AMOUNTS AND ELIGIBILITY 13 DEATH BENEFITS 15 DISABILITY 15 VESTING 19 OPTIONAL FORMS OF BENEFITS 20 ..BENEFICIARIES 23 CLAIMS PROCEDURES 23 ROSTER OF RETIREES 30 BOARD ATTORNEY AND PROFESSIONALS 30 MAXIMUM PENSION 31 COMMENCEMENT OF BENEFITS 34 DISTRIBUTIONS OF BENEFITS 35 MISCELLANEOUS PROVISIONS 36 REPEAL OR TERMINATION OF SYSTEM 38 EXEMPTION FROM EXECUTION, NON -ASSIGNABILITY 42 PENSION VALIDITY 42 FORFEITURE OF PENSION 43 INDEMNIFICATION 44 • TRANSFERS WITHIN THE CITY ^**445 MILITARY SERVICE PRIOR TO EMPLOYMENT DIRECT TRANSFERS OF ELIGIBLE ROLLOVER DISTRIBUTIONS 46 0 SECTION 1. DEFINITIONS. A**** 1. As used herein, unless otherwise defined or required by the contel following words and phrases shall have the meaning indicated: Accumulated Contributions means a Member's own contributions with interest at the rate of five and one -quarter percent (5-1/4%) per annum through September 30, 1993 and three percent (3 %) per annum thereafter. For those Members who purchase Credited Service at no cost to the System, pursuant to Sections 24 and 25, only that portion of any payment representing the sum that he would have contributed had he been a Member of the System for the years for which he is requesting credit, shall be included in Accumulated Contributions. Act means the Employee Retirement Income Security Act of 1974 (P.L. 93- 406) as amended by the Retirement Equity Act of 1984 (P.L. 98-397) and any regulations issued thereunder by the Department of Labor and the Internal Revenue Service, as that Statute and these regulations shall be amended. Actuarial Eauivalent means that any benefit payable under the terms of this System in a form other than the normal form of benefit shall have the same actuarial present value on the date payment commences as the normal form of benefit. For purposes of establishing the actuarial present value of any form of payment other than a lump sum distribution, all future payments shall be discounted for interest and mortality by using 7 % interest and the 1971 Group Annuity Mortality Table for Males, with ages set ahead five years in the case of disability retirees. Averaee Final Comnensation means one -twelfth (1/12) of the average Salary of the five (5) best years of the last ten (10) years of Credited Service prior to retirement, termination or death. A year shall be twelve (12) consecutive months. Beneficiary means the person or persons entitled to receive benefits hereunder at the death of a Member who has or have been designated in writing by the Member and -1- • filed with the Board. If no such designation is in effect, or if no person so dted is 4*W living, at the time of death of the Member, the Beneficiary shall be the estate JZ Member. Board means the Board of Trustees, which shall administer and manage the System herein provided and serve as trustees of the Fund. time. i& means City of Okeechobee, Florida. Code means the Internal Revenue Code of 1986, as amended from time to Credited Service, means the total number of years and fractional parts of years of service as a General Employee with member contributions to the System, omitting intervening years or fractional parts of years when such General Employee may not be employed by the City. A General Employee may voluntarily leave his contribution in the Fund for a period of five (5) years after leaving the employ of the City pending the possibility of being rehired, and remaining employed for a period of not less than three (3) years, without losing credit for the time of active participation as a General Employee. If the General Employee does not remain employed for a period of three (3) years upon reemployment within five (5) years, then the Accumulated Contributions will be returned upon the written request of the Member. The years or fractional parts of years that a General Employee serves in the military service of the Armed Forces of the United States or the United States Merchant Marine, voluntarily or involuntarily, after separation from employment as a General Employee with the City, shall be added to his years of Credited Service for all purposes, including vesting, provided that (except as otherwise prohibited by law, in which case the minimum standards for compliance shall apply): -2- I t • • A. The General Employee must return to his employment s a teral Employee with the City within one (1) year from the date o his military discharge. B. The General Employee deposits into the Fund the same sum that Member would have contributed if he had remained a General Employee, plus an amount of interest that substantially approximates the amount earned by the Fund from the date of return to employment to the date of deposit. C. The maximum credit for military service shall be five (5) years. Effective Date means the date on which this ordinance becomes effective. _Qeneral Emnlovee, means any actively employed person in the regular full-time service of the City, including those in their initial probationary employment period, but including elected officials and not including certified police officers and certified firefighters employed by the City. Fund means the trust fund established herein as part of the System. Member means an actively employed General Employee who fulfills the prescribed membership requirements. Salary means the basic compensation paid by the City to a Member, plus all tax deferred and tax exempt items of income, but excluding overtime, bonuses and any other non -regular payment. Spouse means the lawful wife or husband of a Member at the time of pre - retirement death or retirement. Svstem means the City of Okeechobee Municipal General Employees' Pension Fund as contained herein and all amendments thereto. 2. Masculine Gender. The masculine gender, where used herein, unless the context specifically requires otherwise, shall include both the feminine and masculine genders. -3- F Notwithstanding the previous paragraph, the current City Administrator and any future City Administrator or Administrative Assistant may, in the event he has elected to participate in another pension program, within the first sixty (60) days of his employment as City Administrator or Administrative Assistant or within thirty (30) days of the Effective Date, whichever is later, notify the Board and the City, in writing, of his election to not be a Member of the System. In the event of any such election, he shall be barred from future membership in the System. 11 0 1i N� 1. Conditions of Elieibilitv. All General Employees as of the Effective Date, and all future new General Employees, shall become Members of this System as a condition of employment. 2. Membership. Each General Employee shall complete a form prescribed by the Board pro- viding the following information: A. Acceptance of the terms and conditions of the System, and, B. Designation of a Beneficiary or Beneficiaries. 3. Change in De i n tion of Beneficiary. A Member may from time to time change his designated Beneficiary by written notice to the Board upon forms provided by the Board. Upon such change, the rights of all previously designated Beneficiaries to receive any benefits under the System shall cease. SECTION 3. BOARD OF TRUSTEES. 1. The sole and exclusive administration of and responsibility for the proper operation of the System and for making effective the provisions of this ordinance are hereby vested in a Board of Trustees. The Board of Trustees is hereby designated as the plan administrator. The Board of Trustees shall consist of five (5) Trustees, two of whom, unless otherwise prohibited by law, shall be legal residents of the municipality, who shall be appointed by the Okeechobee City Council, and two (2) of whom shall be full-time General Employee Members of the System, who shall be elected by a majority of the General Employees who are Members of the System. The fifth Trustee shall be chosen for a two (2) year term by a majority of the previous four Trustees as provided for herein, and such person's name shall be submitted to the Okeechobee City Council. Upon receipt of the fifth person's name, the Okeechobee City Council shall, as a ministerial duty, appoint such person to the Board of Trustees as its fifth Trustee. The fifth Trustee shall have the same rights as -4- F A'*'* each of the other four Trustees appointed or elected as herein provided and shall serv/ (2) year term unless the office is sooner vacated and may succeed himself in office. Ea resident Trustee shall serve as Trustee for a period of two (2) years, unless sooner replaced by the Okeechobee City Council at whose pleasure the Trustee shall serve, and may succeed himself as a Trustee. Each General Employee Trustee shall serve as Trustee for a period of two (2) years, unless he sooner leaves the employment of the City as a General Employee or otherwise vacates his office as Trustee, whereupon a successor shall be chosen in the same manner as the departing Trustee. Each General Employee Trustee may succeed himself in office. The Board of Trustees shall meet at least quarterly each year. The Board of Trustees shall be a legal entity with, in addition to other powers and responsibilities contained herein, the power to bring and defend lawsuits of every kind, nature, and description. 2. The Trustees shall, by a majority vote, elect a Chairman and a Secretary. The Secretary of the Board shall keep a complete minute book of the actions, proceedings, or hearings of the Board. The Trustees shall not receive any compensation as such, but may receive expenses and per diem as provided by law. 3. Each Trustee shall be entitled to one vote on the Board. Three (3) affirmative votes shall be necessary for any decision by the Trustees at any meeting of the Board. A Trustee shall have the right to abstain from voting as the result of a conflict of interest provided that Trustee complies with the provisions of Section 112.3143, Florida Statutes. 4. The Board shall engage such actuarial, accounting, legal, and other services as shall be required to transact the business of the System. The compensation of all persons engaged by the Board and all other expenses of the Board necessary for the operation of the System shall be paid from the Fund at such rates and in such amounts as the Board shall agree. -5- 5. The duties and responsibilities of the Board shall include, but not :(y ne: be limited to, the following: ot% A. To construe the provisions of the System and determine all questions arising thereunder. B. To determine all questions relating to eligibility and membership. C. To determine and certify the amount of all retirement allowances or other benefits hereunder. D. To establish uniform rules and procedures to be followed for administrative purposes, benefit applications and all matters required to administer the System. E. To distribute to Members, at regular intervals, information concerning the System. F. To receive and process all applications for membership and benefits. G. To authorize all payments whatsoever from the Fund, and to notify the disbursing agent, in writing, of approved benefit payments and other expenditures arising through operation of the System and Fund. H. To have performed actuarial studies and at least biennial valuations, and make recommendations regarding any and all changes in the provisions of the System. I. To perform such other duties as are specified in this ordinance. SECTION 4. FINANCES AND FUND MANAGEMENT. lblishment and Operation of Fund. 1. As part of the System, there is hereby established the Fund, into which shall be deposited all of the contributions and assets whatsoever attributable to the System, including the assets of the prior Municipal General Employees' Pension Fund. 2. The actual custody and supervision of the FaA***** nd (and assets thereof) be vested in the Board. Payment of benefits and disbursements from the Fund shall be ade by the disbursing agent but only upon written authorization from the Board. 3. All funds and securities of the Municipal General Employees' Pension Fund may be deposited by the Board with the Finance Director of the municipality, acting in a ministerial capacity only, who shall be liable in the same manner and to the same extent as he is liable for the safekeeping of funds for the municipality. However, any funds and securities so deposited with the Finance Director of the municipality shall be kept in a separate fund by the Finance Director or clearly identified as such funds and securities of the Municipal General Employees' Pension Fund. In lieu thereof, the Board shall deposit the funds and securities of the Municipal General Employees' Pension Fund in a qualified public depository as defined in §280.02, Florida Statutes, which depository with regard to such funds and securities shall conform to and be bound by all of the provisions of Chapter 280, Florida Statutes. In order to fulfill its investment responsibilities as set forth herein, the Board may retain the services of a custodian bank, an investment advisor registered under the Investment Advisors Act of 1940 or otherwise exempt from such required registration, an insurance company, or a combination of these, for the purposes of investment decisions and management. Such investment manager shall have discretion, subject to any guidelines as prescribed by the Board, in the investment of all Fund assets. 4. All funds and securities of the System may be commingled in the Fund, provided that accurate records are maintained at all times reflecting the financial composition of the Fund, including accurate current accounts and entries as regards the following: A. Current amounts of Accumulated Contributions of Members on both an individual and aggregate account basis, and B. Receipts and disbursements, and C. Benefit payments, and -7- A**** D. Current amounts clearly reflecting all monies, funds and se whatsoever attributable to contributions and deposits from the City, 4J! E. All interest, dividends and gains (or losses) whatsoever, and F. Such other entries as may be properly required so as to reflect a clear and complete financial report of the Fund. 5. An independent audit shall be performed annually by a certified public accountant for the most recent fiscal year of the City showing a detailed listing of assets and a statement of all income and disbursements during the year. Such income and disbursements must be reconciled with the assets at the beginning and end of the year. Such report shall reflect a complete evaluation of assets on both a cost and market basis, as well as other items normally included in a certified audit. 6. The Board shall have the following investment powers and authority: A. The Board shall be vested with full legal title to said Fund, subject, however, and in any event to the authority and power of the Okeechobee City Council to amend or terminate this Fund, provided that no amendment or Fund termination shall ever result in the use of any assets of this Fund except for the payment of regular expenses and benefits under this System. All contributions from time to time paid into the Fund, and the income thereof, without distinction between prin- cipal and income, shall be held and administered by the Board or its agent in the Fund and the Board shall not be required to segregate or invest separately any portion of the Fund. B. All monies paid into or held in the Fund shall be invested and reinvested by the Board and the investment of all or any part of such funds shall be limited to: -8- • A P (1) Annuity and life insurance contracts of life insurance co/ip es in amounts sufficient to provide, in whale or in part, benefits to which all of the Members in the Fund shall be entitled under the provisions of this System and pay the initial and subsequent premium thereon. (2) Time or savings accounts of a national bank, a state bank or a savings/building and loan association insured by the Federal Deposit Insurance Corporation. (3) Obligations of the United States or obligations guaranteed as to principal and interest by the government 'of the United States. (4) Bonds issued by the State of Israel. (5) Bonds, stocks, commingled funds administered by National or State Banks or evidences of indebtedness issued or guaranteed by a corporation organized under the laws of the United States, any state or organized territory of the United States, or the District of Columbia, provided that the corporation is traded on a nationally recognized exchange and holds a rating in one of the three highest classifications by a major rating service, and if such investments are made in a pooled fund administered by a state or national bank, then the rating of each issue in the pooled fund shall hold a rating within the top three (3) rating classifications of a major rating service and no foreign investments shall be permitted in the pooled fund. The Board shall not invest more than five percent (5 %) of its assets in the common stock, capital stock, or convertible securities of any one issuing company, nor shall the aggregate investment in any one issuing RM company exceed five percent (5 %) of the outstanding capital stock that company; nor shall the aggregate of its investments in common stock, capital stock and convertible securities at cost exceed forty percent (40%) of the assets of the Fund. D. The Board may retain in cash and keep unproductive of income such amount of the Fund as it may deem advisable, having regard for the cash requirements of the System. E. No person or entity shall be liable for the making, retention or sale of any investment or reinvestment made as herein provided, nor for any loss or diminishment of the Fund, except that due to his or its own negligence, willful misconduct or lack of good faith. F. The Board may cause any investment in securities held by it to be registered in or transferred into its name as Trustee or into the name of such nominee as it may direct, or it may retain them unregistered and in form permitting transferability, but the books and records shall at all times show that all investments are part of the Fund. G. The Board is empowered, but is not required, to vote upon any stocks, bonds, or securities of any corporation, association, or trust and to give general or specific proxies or powers of attorney with or without power of substitution; to participate in mergers, reorganizations, recapitaliza- tions, consolidations, and similar transactions with respect to such securities; to deposit such stock or other securities in any voting trust or any protective or like committee with the Trustees or with depositories designated thereby; to amortize or fail to amortize any part or all of the premium or discount resulting from the acquisition or disposition of assets; and generally to exercise any of the powers of an -10- owner with respect to stocks, bonds, or other investmenn mprising the Fund which it may deem to be to the best interest of the to exercise. H. The Board shall not be required to make any inventory or appraisal or report to any court, nor to secure any order of court for the exercise of any power contained herein. I. Where any action which the Board is required to take or any duty or function which it is required to perform either under the terms herein or under the general law applicable to it as Trustee under this ordinance, can reasonably be taken or performed only after receipt by it from a Member, the City, or any other entity, of specific informa- tion, certification, direction or instructions, the Board shall be free of liability in failing to take such action or perform such duty or function until such information, certification, direction or instruction has been received by it. J. Any overpayments or underpayments from the Fund to a Member or Beneficiary caused by errors of computation shall be adjusted with interest at a rate per annum approved by the Board. Over payment shall be charged against payments next succeeding the correction. Underpayments shall be made up from the Fund. K. The Board shall sustain no liability whatsoever for the sufficiency of the Fund to meet the payments and benefits herein provided for. L. In any application to or proceeding or action in the courts, only the Board shall be a necessary party, and no Member or other person having an interest in the Fund shall be entitled to any notice or service -11- of process. Any judgment entered in such a proceeding oAse n shall be conclusive upon all persons. M. Any of the foregoing powers and functions reposed in the Board be performed or carried out by the Board through duly authorized agents, provided that the Board at all times maintains continuous supervision over the acts of any such agent; provided further, that legal title to said Fund shall always remain in the Board. SECTION 5. CONTRIBUTIONS. 1. Member Contributions. A. Amount. Members of the System shall be required to make regular contributions to the Fund in the amount of five percent (5 %) of his Salary. Member contributions withheld by the City on behalf of the Member shall be deposited with the Board at least monthly. The contributions made by each Member to the Fund shall be designated as employer contributions pursuant to §414(h) of the Internal Revenue Code of 1986. Such designation is contingent upon the contributions being excluded from the Members' gross income for Federal Income Tax purposes. For all other purposes of the System, such contributions shall be considered to be Member contributions. B. Method. Such contributions shall be made by payroll deduction. 2. City ContribujDns. So long as this System is in effect, the City shall make quarterly contributions to the Fund in an amount equal to the difference in each year, between the total aggregate Member contributions for the year and the total cost for the year, as shown by the most recent actuarial valuation of the System. The total cost for any year shall be defined as the total normal cost plus the additional amount sufficient to amortize the unfunded past service -12- liability over a forty (40) year period, commencing with the fiscal year in which the Effe ve Date of this System occurs. 3. Other. Private donations, gifts and contributions may be deposited to the Fund, but such deposits must be accounted for separately and kept on a segregated bookkeeping basis. Funds arising from these sources may be used only for additional benefits for Members, as determined by the Board, and may not be used to reduce what would have otherwise been required City contributions. .SECTION 6. RENE]W AMOUNTS AND ELIGIBILITY. 1. Normal Retirement Date,. A Member's normal retirement date shall be the first day of the month coincident with, or the next following age sixty-five (65) and the completion of five (5) years of Credited Service or upon the completion of thirty (30) years of Credited Service regardless of age. A Member may retire on his normal retirement date or on the first day of any month thereafter, and each Member shall become 100 % vested in his accrued benefit on the Member's normal retirement date. Normal retirement under the System is retirement from employment with the City on or after the normal retirement date. 2. Normal Retirement Benefit. A Member retiring hereunder on or after his normal retirement date shall receive a monthly benefit which shall commence on his retirement date and be continued thereafter during Member's lifetime, ceasing upon death, but with one hundred twenty (120) monthly payments guaranteed in any event. The monthly retirement benefit shall equal one and three-quarters percent (1.75 %) of Average Final Compensation, for each year of Credited Service. 3. Ear1v Retirement Date. A Member may retire on his early retirement date which shall be the first day of any month coincident with or next following the later of the attainment of age sixty (60) -13- and the completion of ten (10) years of Credited Service. Early retirement under the Sym is retirement from employment with the City on or after the early retirement date and pri to the normal retirement date. 4. Early Retirement Benefit. A member retiring hereunder on his early retirement date may receive either a deferred or an immediate monthly retirement benefit payable in the same form as for normal retirement as follows: A. A deferred monthly retirement benefit which shall commence on what would have been his normal retirement date had he continued employment as a General Employee and shall be continued on the first day of each month thereafter. The amount of each such deferred monthly retirement benefit shall be determined in the same manner as for retirement on his normal retirement date except that Credited Service and Average Final Compensation shall be determined as of his early retirement date; or B. An immediate monthly retirement benefit which shall commence on his early retirement date and shall be continued on the first day of each month thereafter. The benefit payable shall be as determined in paragraph A above, which is reduced by one -fifteenth (1/15th) for each of the first five (5) years and one -thirtieth (1/30th) for each of the next five (5) years by which the commencement of benefits precedes the date which would have been the Member's normal retirement date had he continued employment as a General Employer. -14 0 SECTION 7. DEATH BENEFTTS. 1 ,dot,** Prior to Vestine or Eligibility for Retirement. The Beneficiary of a deceased Member who was not receiving monthly bene payments, or who was not yet vested or eligible for retirement shall receive a refund of one hundred percent (100%) of the Member's Accumulated Contributions. 2. Decggted Members Vested or Eligible for Retirement. Any member, whether or not still actively employed, who has a right to a vested accrued benefit, shall be eligible for a death benefit if he dies before collecting any other benefits from this System. The amount of the death benefit shall be equal to fifty percent (50%) of the actuarially equivalent single sum value of the Member's vested accrued benefit or his Accumulated Contributions, whichever is greater. If this single sum value is less than $3,500, it shall be paid in a lump sum. If the value exceeds $3,500, the Beneficiary may elect payment under any of the optional forms available for retirement benefits or a lump sum payment. If a Member is eligible for early or normal retirement, but remains in employment and dies while so employed, the death benefit shall be determined as follows: It shall be assumed that such deceased Member had retired immediately preceding his date of death and elected the Ten Year Certain and Life Thereafter option. However, the death benefit shall be equal to fifty percent (50 %) of the actuarially equivalent single sum value of the Member's vested accrued benefit, if larger than the Ten Year Certain and Life Thereafter option, described earlier in this Section. SECTION 8. DISABILITY. 1. mobility Benefitj. Each General Employee who is a Member in the System and who shall have become totally and permanently disabled while an active General Employee of the City to the extent that he is unable, by reason of a medically determinable physical or mental impair- -15- F • • • ment, to perform the duties that the General Employee was assigned at the Ab4of the impairment and is unable to perform the duties of another General Employee positioniic the City makes available to him in a similar job classification and rank at no reduction Salary for which the General Employee is qualified by reason of graining, education, or experience, whether or not such disability was directly caused by the performance of his duty as a General Employee, shall, upon establishing the same to the satisfaction of the Board, be entitled to a monthly pension determined in the same manner as for Early Retirement set forth in Section 6, subsection 4.B, providing for an actuarial reduction. 2. Conditions Disqualifving Disabilitv Benefits. Each General Employee who is claiming disability benefits shall establish, to the satisfaction of the Board, that such disability was not occasioned primarily by: A. Excessive or habitual use of any drugs, intoxicants, or alcohol. B. Injury or disease sustained while willfully and illegally participating in fights, riots or civil insurrections. C. Injury or disease sustained while committing a crime. D. Injury or disease sustained while serving in any branch of the Armed Forces. E. Injury or disease sustained after his employment as a General Employee with the City Okeechobee shall have terminated. F. Willful, wanton conduct or gross negligence of the Member. G. Injury or disease sustained by the General Employee while working for anyone other than the City and arising out of such employment. H. A condition pre-existing the General Employee's membership in the System. No Member shall be entitled to a disability pension because of or due to the aggravation of a specific injury, impairment or other medical condition pre-existing at the time of membership in the System, -16- • provided that such pre-existing condition and its relation ►t a later injury, impairment or other medical condition be establis d y competent substantial evidence. Nothing herein shall be construed preclude a disability pension to a Member who, after membership in the System, suffers an injury, impairment or other medical condition different from some other injury, impairment, or other medical condition existing at or prior to said membership. 3. Phvsical Examination Reouirement. A General Employee shall not become eligible for disability benefits until and unless he undergoes a physical examination by a qualified physician or physicians and/or surgeon or surgeons, who shall be selected by the Board for that purpose. Any General Employee receiving disability benefits under provisions of this ordinance may be periodically re-examined by a qualified physician or physicians and/or surgeon or surgeons who shall be selected by the Board, to determine if such disability has ceased to exist. If the Board finds that the retiree is no longer permanently and totally disabled to the extent that he is unable to render useful and efficient service as a General Employee, the Board shall recommend to the City that the retiree be returned to performance of duty as a General Employee, and the retiree so returned shall enjoy the same rights that Member had at the time he was placed upon pension. In the event the retiree so ordered to return shall refuse to comply with the order within thirty (30) days from the issuance thereof, Member shall forfeit the right to his pension. The cost of the physical examination and/or re-examination of the General Employee claiming and/or receiving disability benefits shall be borne by the Fund. All other reasonable costs as determined by the Board incident to the physical examination, such as, but not limited to, transportation, meals and hotel accommodations, shall be borne by the Fund. -17- If the General Employee recovers from disability and reenters the ser)ko the City as a General Employee, his service shall be deemed to have been continuous, 4j!� the period for which Member received a disability retirement income shall be Credited Service for purposes of the System. If the General Employee fails to reenter the service of the City as a General Employee within thirty (30) days from the date the Board determines that the retiree is no longer permanently and totally disabled to the extent that he is unable to render useful and efficient service as a General Employee, the Member's future benefits shall be determined as though he initially terminated employment on the date the Board determined that he was permanently and totally disabled to the extent that he was unable to render useful and efficient service as a General Employee. The Board shall have the power and authority to make the final decisions regarding all disability claims. 5. Disability Pavmenta. The monthly benefit to which a Member is entitled in the event of the Member's disability retirement shall be payable on the first day of the first month after the Board determines such entitlement. However, the monthly retirement income shall be payable as of the date the Board determined such entitlement, and any portion due for a partial month shall be paid together with the first payment. The last payment will be: A. If the General Employee recovers from the disability prior to his normal retirement date, the payment due next preceding the date of such recovery, or B. If the General Employee dies without recovering from disability or attains his normal retirement date while still disabled, the payment due next preceding his death or the 120th monthly payment, whichever is later. -18- 6. Workers' Compg atm. When a Member is receiving a disability pension and workers' compensation benefits pursuant to Florida Statute Chapter 440, for the same disability, and the total monthly benefits received from both exceed 100 % of the Member's final monthly Salary, excluding overtime, the disability pension benefit shall be reduced so that the total monthly amount received by the Member does not exceed 100 % of such Salary. SECTION 9. VESTING. If a Member terminates his employment with the City, either voluntarily or by discharge, and is not eligible for any other benefits under this System, Member shall be entitled to the following: 1. If the Member has less than five (5) years Credited Service upon termination, the Member shall be entitled to a refund of his Accumulated Contributions or Member may leave it deposited with the Fund. 2. If the Member has five (5) or more years of Credited Service upon termination,' the Member shall be entitled to a monthly retirement benefit that is the Actuarial Equivalent of the amount of such retirement income otherwise payable to him commencing at Member's otherwise normal or early retirement date, provided he does not elect to withdraw his Accumulated Contributions and provided Member survives to his normal or early retirement date. $ECTIQN 10. OPTIONAL FORMS OF BENEFITS. 1. In lieu of the amount and form of retirement income payable in the event of normal or early retirement as specified herein, a General Employee, upon written request to the Board may elect to receive a retirement income or benefit of equivalent actuarial value payable in accordance with one of the following options: A. A retirement income of a modified monthly amount, payable to the General Employee during the lifetime of the General Employee and -19- following the death of the General Employee, 100 % , 75 % , or 5( o such monthly amount payable to a joint pensioner for his lifetime. 4$"'�* B. A retirement income of a modified monthly amount for the lifetime of the General Employee only. C. If a Member retires prior to the time at which social security benefits are payable, he may elect to receive an increased retirement benefit until such time as social security benefits shall be assumed to commence and a reduced benefit thereafter in order to provide, to as great an extent as possible, a more level retirement allowance during the entire period of retirement. The amounts payable shall be as recommended by the actuaries for the System, based upon the social security law in effect at the time of the Member's retirement. This option may be combined with other optional forms of benefits. 2. The General Employee, upon electing any option of this Section, will designate the joint pensioner or Beneficiary (or Beneficiaries) to receive the benefit, if any, payable under the System in the event of Member's death, and will have the power to change such designation from time to time. Such designation will name a joint pensioner or one or more primary Beneficiaries where applicable. If a General Employee has elected an option with a joint pensioner or Beneficiary and Member's retirement income benefits have commenced, Member may thereafter change his designated joint pensioner or Beneficiary, but only if the designated Beneficiary predeceases the Member or if the designated Beneficiary and the Member were married at time of Member's retirement and are divorced subsequent thereto; provided however, in no event may a Member change his or her designated Beneficiary more than twice. -20- 3. The consent of a General Employee's joint pensioner or Beneficiary 46: y 11 n required. The ri rights of allpreviously-designated Beneficiaries such change shall of beg receive benefits under the System shall thereupon cease. 4. Upon change of a Member's Beneficiary or joint pensioner in accordance with this section, the Board shall adjust the Member's monthly benefit by application of actuarial calculations to insure that the benefit paid is the Actuarial Equivalent of the Member's then - current benefit. Any such Member shall pay the actuarial recalculation expenses and shall make repayment of any overage of previously -paid pension benefits as a result of said recalculations. Each request for a change will be made in writing on a form prepared by the Board and on completion will be filed with the Board. In the event that no designated Beneficiary survives the General Employee, such benefits as are payable in the event of the death of the General Employee subsequent to his retirement shall be paid as provided in Section 11. 5. Retirement income payments shall be made under the option elected in accordance with the provisions of this Section and shall be subject to the following limitations: A. If a General Employee dies prior to his normal retirement date or early retirement date, whichever first occurs, no retirement benefit will be payable under the option to any person, but the benefits, if any, will be determined under Section 7. B. If the designated Beneficiary (or Beneficiaries) or joint pensioner dies before the General Employee's retirement under the System, the option elected will be canceled automatically and a retirement income of the normal form and amount will be payable to the General Employee upon his retirement as if the election had not been made, unless a new election is made in accordance with the provisions of this Section or a -21- new Beneficiary is designated by the General Employee prior to his retirement and within ninety (90) days after the & of the Beneficiary. , C. If both the retired General Employee and the Benefic' (or Beneficiaries) designated by Member die before the full payment ha been effected under any option providing for payments for a period certain and life thereafter, made pursuant to the provisions of Subsection 1, the Board may, in its discretion, direct that the commuted value of the remaining payments be paid in a lump sum and in accordance with Section 11. D. If a General Employee continues beyond his normal retirement date pursuant to the provisions of Section 6, Subsection 1, and dies prior to his actual retirement and while an option made pursuant to the provisions of this Section is in effect, monthly retirement income payments will be made, or a retirement benefit will be paid, under the option to a Beneficiary (or Beneficiaries) designated by the General Employee in the amount or amounts computed as if the General Employee had retired under the option on the date on which his death occurred. 6. A General Employee may not change his retirement option after the date of cashing or depositing his first retirement check. 7. Notwithstanding anything herein to the contrary, the Board in its discretion, may elect to make a lump sum payment to a Member or a Member's Beneficiary in the event that the total commuted value of the remaining monthly income payments to be paid do not exceed Three Thousand Five Hundred Dollars ($3,500.00). Any such payment made to any person pursuant to the power and discretion conferred upon the Board by the preceding -22- sentence shall operate as a complete discharge of all obligations under ^stem. with regard to such Member and shall not be subject to review by anyone, but shalb Cal, binding and conclusive on all persons. 4J!�� SECTION 11. BENEFICIARIES. 1. Each General Employee may, on a form provided for that purpose, signed and filed with the Board, designate a Beneficiary (or Beneficiaries) to receive the benefit, if any, which may be payable in the event of his death; and each designation may be revoked by such General Employee by signing and filing with the Board a new designation -of - Beneficiary form. 2. If a deceased General Employee fails to name a Beneficiary in the manner prescribed in Subsection 1, or if the Beneficiary (or Beneficiaries) named by a deceased General Employee predeceases the General Employee, the death benefit, if any, which may be payable under the System with respect to such deceased General Employee, shall be paid to the estate of the General Employee. SECTION 12. CLAIM$ PROCEDURES. 1. Claims of Affected Persons. A. The Board of Trustees shall grant an initial hearing upon receipt of a written request ("Claim"), on matters which affect the substantial rights of any person ("Claimant"), including Members, active or retired, Beneficiaries, or any person affected by a decision of the Board of Trustees. B. The Board shall review the Claim at an initial hearing and enter an order within sixty (60) days from the date of receipt of the Claim and, in the case of disability claims, receipt by the Board of a written medical release authorization in a form approved by the Board Attorney and a completed set of interrogatories prepared by the Board Attorney and provided to the Claimant. The Board may extend the time for -23- entering the order at an initial hearing for an additional kiso-v;�'re ve (45) days if it determines such time is necessaryfor full and adequate review, The Board Attorney and the Claimant may sti ate to further extensions of time. 4$** C. It shall be the function of the Board Attorney, throughout the claims procedure, to assist the Board in the discovery and presentation of evidence in order to assure that the Board receives all relevant information prior to the Board's decision. D. The Claimant shall have the right to be represented by counsel at any or all times throughout the claims procedure. 2. InWal Hearing. A. At the initial hearing, the only evidence to be considered by the Board shall be documentary evidence contained in the pension file, including but not limited to, correspondence, medical records and reports of treating physicians and/or examining physicians and evidence received pursuant to paragraph B. B. Other than questions from the Trustees, there will be no taking of additional evidence at the initial hearing, except that the Claimant and/or his representative will be afforded fifteen (15) minutes to make a presentation, which shall be limited to comments and/or arguments as to the evidence or information already contained in the pension file, including the report of the examining physician. C. Upon completion of the review of the Claim at the initial hearing, the Board shall enter an order setting forth its findings and conclusions on the Claim. The written order shall be provided to the Claimant. The order shall include: -24- (1) The specific findings and conclusions of the B*jncluding specific references to pertinent provisions of the Sy/em n which such conclusions are based; 4j!�� (2) A description of any additional material or information that the Board may deem necessary for the Claimant to perfect his Claim, together with the reasons why such material or informa- tion is necessary; and (3) An explanation of the right to a full hearing on the Claim and the time limit in which a full hearing must be requested in writing. D. The decision of the Board at the initial hearing shall not be final until after the time has expired to request a full hearing or, if a full hearing is requested, until the Board makes a decision at the conclusion of the full hearing. 3. Full Hearing. A. Any Claimant may request a full hearing on the issues presented to the Board at an initial hearing and upon which the Board has entered an order as provided in subsection 2.C. above. B. A full hearing must be requested by the Claimant within ninety (90) days of the receipt of the Board's order. The order will be deemed received three (3) days following the date it is mailed to Claimant at the address provided to the Board by Claimant. C. Upon receipt of the request for a full hearing and considering the amount of discovery which might be conducted, the Board shall establish a date for the full hearing and cause notice to be given to the Claimant. The full hearing shall be held within ninety (90) days from -25- !O E. F. the receipt of the request from the Member. The full he be postponed, if necessary and with the consent of the Claimant, to t full discovery of the facts. Copies of all documents to be offered into evidence at the full hearing, including depositions, and a complete witness list with names and addresses of witnesses expected to be called, shall be furnished to the Board by the Claimant and the Board Attorney at least twenty (20) days prior to the full hearing. Documents not furnished to the Board within the prescribed time limit may be excluded from evidence at the full hearing if a reasonable explanation is not provided for the delay in providing the documents. A Claimant or the Board Attorney may obtain discovery by deposition and/or interrogatories prior to the full hearing. Written notice of any depositions and/or interrogatories shall be given to the Board Attorney and the Claimant. The costs of any discovery, except discovery requested by the Board or the Board Attorney, the appearance of witnesses at the hearing, and the making of a verbatim record of the proceedings shall be the responsibility of the Claimant. The Claimant shall be responsible for the appearance of any witnesses at the hearing. The Board shall, however, have the power to subpoena and require the attendance of witnesses and the production of docu- ments for discovery prior to and at the proceedings provided for herein. The Claimant may request in writing the issuance of subpoenas by the Board. A reasonable fee may be charged for the issuance of any subpoenas not to exceed the fees set forth in Florida Statutes. -26- 0 At H. Testimony at the full hearing may be submitted in the 4foa Y rm deposition. Since it will give the Board more time for review �4 10%, ' consideration, the Board prefers that testimony be submitted by 4k"* deposition. Depositions timely submitted will be part of the record before the Board at the full hearing and will not be read in totality at the full hearing; provided however, that this does not preclude the Claimant or the Board Attorney from reading parts of depositions in an opening or closing statement. I. Irrelevant and unduly repetitious evidence shall be excluded. J. Any person who knowingly gives false testimony is guilty of a misde- meanor of the first degree, punishable as provided in Section 775.082 or 775.083, Florida Statutes,. K. The file maintained by the Board, including but not limited to various medical reports therein, is part of the record before the Board at the full hearing. L. All proceedings of the Board shall be conducted in public. M. In cases concerning an application for pension benefits, including applications for disability retirement benefits, the burden of proof, except as provided by law, shall be on the Member seeking to show entitlement to such benefits. N. In cases concerning termination of pension benefits including re- examination of Members receiving disability retirement benefits, the burden of proof shall be on the Board. O. Except as to those records which are exempted from the provisions of Chapter 119, Florida Sty, Florida's Public Record Law, records -27- maintained by the Board are open for inspection and/orA,m uring no rmal business hours at a reasonable cost for the copying. 7d( P. Should a Claimant requesting an initial or full hearing decide to appeal any decision made by the Board, with respect to any matter considered at such hearing, the Claimant requesting an initial or full hearing will need a record of the proceedings and may need to assure that a verbatim record of the proceeding is made. The Claimant requesting an initial or full hearing will be responsible for obtaining a court reporter or otherwise making a record of the proceedings before the Board. Q. The decisions of the Board after the requested full hearing shall be final and binding. R. Within fifteen (15) days after making a decision at the full hearing, the Board shall enter a final order setting forth its findings and conclusions and a copy of the order shall be provided to the Claimant. S. Judicial review of decisions of the Board shall be sought by the filing of a timely petition for writ of certiorari with the Clerk of the Circuit Court, in the appropriate county. 4. Conduct of the Full Hearing. A. The Chairman shall preside over the hearing and shall rule on all evidentiary, procedural, and other legal questions that arise during the hearing. The Chairman's rulings shall stand unless overruled by all other Trustees present. The Chairman shall open the full hearing by explaining the procedures to be followed. B. The Claimant shall have the right to be represented by counsel or be self -represented. The Board Attorney shall advise the Board. -28- C . The Claimant shall be allowed to make an opening s&.n not to exceed ten 10 minutes. D. Testimony of witnesses shall be under oath or affirmation. Depositions or affidavits shall be admissible if agreed upon by the Claimant and the Board or the Board Attorney. E. The Chairman, any Trustee, the Board Attorney, the Claimant or the Claimant's counsel, upon recognition by the Chairman, may direct questions to any witness during the proceedings. F. Either the Claimant or the Board Attorney shall have the right to present evidence relevant to the issues, to cross examine witnesses, to impeach witnesses and to respond to the evidence presented. G. The Claimant shall be permitted a closing argument not to exceed fifteen (15) minutes. H. The Board shall deliberate and make a decision following closing argument and thereafter enter an order as provided herein. 5. Disability Claims - Additional Procedures. A. All applications for disability pensions shall be in writing. Forms for such applications may be provided by the Board. B. Upon receipt of the application for disability, the Board Attorney will provide the Claimant with a set of interrogatories or questions to be answered under oath and a medical release authorization. Both documents will be completed by the Claimant and returned to the Board Attorney. C. Upon receipt of the properly completed interrogatories and medical release authorization, the Board Attorney will request medical records from all relevant treating physicians; personnel records from the -29- employer, copies of relevant workman's compensation records, and copies of other records deemed to be relevant to the Claim. The Board shall pay from the Fund the cost of any medical examinations required by the Board and for copies of medical records. D. The Board Attorney will, if authorized by the Board, upon receipt of the medical records from the treating physicians, schedule an indepen- dent medical examination (1ME) with an appropriate independent examining physician who will be asked to render an opinion about Claimant's physical condition as it relates to the claimed disability. E. Upon receipt of the IME from the examining physician, the Board Attorney will provide all records of treating physicians, relevant workman's compensation claims records, the independent medical evaluation, and all other relevant documents to the Board for inclusion in the pension file and the Board shall then schedule the initial hearing. SECTION 13. ROSTER OF RETIREES. The Secretary of the Board shall keep a record of all persons enjoying a pension under the provisions of this ordinance in which it shall be noted the time when the pension is allowed and when the same shall cease to be paid. Additionally, the Secretary shall keep a record of all General Employees employed by the Municipality in such a manner as to show the name, address, date of employment and date such employment is terminated. SECTION 14. BOARD ATTORNEY AND PROFESSIONALS. The Board may employ independent legal counsel at the System's expense for the purposes contained herein, together with such other professional, technical, or other advisors as the Board deems necessary. • SECTION 15. NLAIMWiJM PENSION. 1. Basic Limitation. / Subject to the adjustments hereinafter set forth, the maximum amount of ann retirement income payable with respect to a Member under this System shall not exceed the lesser of. A. $90,000, or B. 100% of the Member's average aggregate compensation for the three (3) consecutive calendar years during which the General Employee was an active Member and had his highest aggregate compensation. "Compensation" shall mean the General Employee's total annual remuneration paid or accrued for personal services rendered to the City during the plan year as reported on the General Employee's W-2. For purposes of applying the above limitation, benefits payable in any form other than a straight life annuity with no ancillary benefits shall be adjusted, as provided by Treasury Regulations, so that such benefits are the Actuarial Equivalent of a straight life annuity. For purposes of this Section, the following benefits shall not be taken into account: (1) Any ancillary benefit which is not directly related to retirement income benefits; (2) Any other benefit not required under §415(b)(2) of the Internal Revenue Code and Regulations thereunder to be taken into account for purposes of the limitation of §415(b)(1) of the Internal Revenue Code. 2. Pamcination in Other Defined Benefit Plans,. The limitation of this Section with respect to any Member who at any time has been a member in any other defined benefit plan (as defined in §4140) of the Internal -31- Revenue Code) maintained by the City shall apply as if the total benefits payable und� defined benefit plans in which the Member has been a member were payable from one plan. 3. Adiustments in Limitations. In the event the Member's retirement benefits become payable before age 62, the $90,000 limitation prescribed by this Section shall be reduced in accordance with Regula- tions issued by the Secretary of the Treasury pursuant to the provisions of §415(b) of the Internal Revenue Code, but not less than $75,000. In the event the Member's retirement benefit becomes payable before age fifty- five (55), the $75,000 limitation shall be reduced from age fifty-five (55) in accordance with Regulations issued by the Secretary of the Treasury pursuant to the provisions of §415(b) of the Internal Revenue Code. If the Member's retirement benefit becomes payable after age sixty-five (65), for purposes of determining whether this benefit meets the limitation set forth in Subsection 1 herein, such benefit shall be adjusted so that it is actuarially equivalent to the benefit beginning at age 65. This adjustment shall be made using an assumed interest rate of five percent (5 %) and shall be made in accordance with regulations promulgated by the Secretary of the Treasury or his delegate. 4. Less than Ten Years of Service. The maximum retirement benefits payable under this Section to any Member who has completed less than ten (10) years of Credited Service with the City shall be the amount determined under Subsection 1 of this Section multiplied by a fraction, the numerator of which is the number of the Member's years of Credited Service and the denominator of which is ten (10). 5. SIDM Limit. Notwithstanding the foregoing, the retirement benefit payable with respect to a Member shall be deemed not to exceed the limitations set forth in this Section if the -32- benefits payable, with respect to such Member under this System and under all other qualified defined benefit pension plans to which the City contributes, do not exceed $10,000 for the applicable plan year and for any prior plan year and the City has not at any time maintained a qualified defined contribution plan in which the Member participated. 6. Member in Defined Contribution Plan. In any case where a Member under this System is also a Member in a "Defined Contribution Plan" as defined in §414(i) of the Internal Revenue Code, maintained by the City, the sum of the "Defined Benefit Plan Fraction" and the "Defined Contribution Plan Fraction" (both as defined in §415(e) of the Internal Revenue Code) shall not, subject to the restrictions and exceptions contained in §2004 of the Act, exceed 1.0. 7. Reduction of Benefits. Reduction of benefits and/or contributions to all plans, where required, shall be accomplished by first reducing the Member's benefit under any defined benefit plans in which Member participated, such reduction to be made first with respect to the plan in which Member most recently accrued benefits and thereafter in such priority as shall be determined by the Board and the plan administrator of such other plans, and next, by reducing or allo- cating excess forfeitures for defined contribution plans in which the Member participated, such reduction to be made first with respect to the plan in which Member most recently accrued benefits and thereafter in such priority as shall be established by the Board and the plan administrator for such other plans provided, however, that necessary reductions may be made in a different manner and priority pursuant to the agreement of the Board and the plan administrator of all other plans covering such Member. 8. _gst-of-Living_Miustments. The limitations as stated in Subsections 1, 2, 3, and 6 herein shall be adjusted to the time payment of a benefit begins in accordance with any cost -of -living adjustments -33- 1 • • prescribed by the Secretary of the Treasury pursuant to §415(d) of the Internal Ive e Code. 9. Additional. Limit ion on Pension Benefit. Notwithstanding anything herein to the contrary: A. The normal retirement benefit or pension payable to a retiree who becomes a member of the System and who has not previously participated in such System, on or after January 1, 1980, shall not exceed 100 percent of his Average Final Compensation. However, nothing contained in this Section shall apply to supplemental retirement benefits or to pension increases attributable to cost -of -living increases or adjustments. B. No Member of the System who is not now a Member of such System shall be allowed to receive a retirement benefit or pension which is in part or in whole based upon any service with respect to which the Member is already receiving, or will receive in the future, a retirement benefit or pension from another System or plan. This restriction does not apply to social security benefits or federal benefits under Chapter 67, Title 10, U.S. Code. SECTION 16. COMMENCEMENT OF BENEFITS. 1. Unless the Member otherwise elects, with such election being in writing and delivered to the Board and specifying the form of retirement income and date on which the retirement income is to commence, the payment benefits under the System to the Member shall commence not later than the 60th day after the close of the plan year in which the latest of the following events occur: A. The attainment by the Member of age 65; -34- B. The loth anniversary of the date on which the Member commenced participation in the System; or C. The termination of the Member's service with the City. 2. If the payment of a Member's retirement income cannot begin on the date required under Subsection 1 of this Section because the Board either cannot ascertain the amount of the Member's retirement income or cannot locate the Member after malting reasonable efforts to do so, the payment of the Member's benefit shall begin not later than sixty (60) days after the date on which the amount can be ascertained or the Member is located, whichever is applicable. Any such payment shall be made retroactive to a date which is not earlier than the date on which the payment of the Member's benefit was scheduled to begin but which is not later than the date specified under Subsection 1 of this Section. SECTION 17. DISTRIBUTION OF BENEFITS. Notwithstanding any other provision of this System to the contrary, a form of retirement income payable from this System after the Effective Date of this ordinance, shall satisfy the following conditions: 1. If the retirement income is payable before the Member's death, A. It shall either be distributed or commence to the Member not later than April 1 of the calendar year following the later of the calendar year in which the Member attains age 70-1 /2, or the calendar year in which Member retires, B. The distribution shall commence not later than the calendar year defined above; and a), shall be paid over the life of the Member or over the lifetimes of the Member and Spouse, issue or dependent, or b), shall be paid over the period extending not beyond the life expect- ancy of the Member and Spouse, issue or dependent. -35- Where a form of retirement income payment has commenced in C with the preceding and the Member dies before o e his entire interest in the Syste has been distributed, the remaining portion of such interest in the System shall be distributed no less rapidly than under the form of distribution in effect at the time of the Member's death. 2. If the Member's death occurs before the distribution of his interest in the System has commenced, Member's entire interest in the System shall be distributed within five (5) years of Member's death, unless it is to be distributed in accordance with the following rules: A. The Member's remaining interest in the System is payable to his Spouse, issue or dependent; B. The remaining interest is to be distributed over the life of the Spouse, issue or dependent or over a period not extending beyond the life expectancy of the Spouse, issue or dependent; and C. Such distribution begins within one year of the Member's death unless the Member's Spouse, issue or dependent shall receive the remaining interest in which case the distribution need not begin before the date on which the Member would have attained age 70-1/2 and if the Spouse, issue or dependent dies before the distribution to the Spouse, issue or dependent begins, this Section shall be applied as if the Spouse, issue or dependent were the Member. SECTION 18. MISCELLANEOUS PROVISIONS,. 1. Interest of Members in Svstem. At no time prior to the satisfaction of all liabilities under the System with respect to Members and their Spouses or Beneficiaries, shall any part of the corpus or income of the Fund be used for or diverted to any purpose other than for their exclusive benefit. -36- • • 2. Lio_uidation of Fund Assets.. A. In the event that contributions of the Ci ty ty are permanently discon or in the event that it becomes necessary for the"City City to discontinue the System, the Board shall determine a proposed date of termination and liquidate the Fund, in accordance with the applicable requirements of the Act governing termination. The rights of affected Members, joint annuitants, Beneficiaries and surviving Spouses to benefits accrued to the date of any such termination or discontinuance to the extent then funded shall become fully vested and nonforfeitable and upon occurrence of such event, the City's aliquot share of the assets then remaining in the Fund shall be allocated among the Members and their Beneficiaries and administered and distributed at such time or times as is determined by the Board. B. Any reserves which shall be released as a result of the application of the provisions of Section 19, Subsection 3E, shall be added to the portion of the Fund which is distributed as provided above to Members whose benefits are not restricted, provided that in the event that all of the benefits accrued to such Members are fully provided for, such released reserves (or any remaining portion thereof) shall be allocated to provide to the extent possible up to one hundred percent (100 %) of the benefits otherwise cancelled pursuant to Section 19, Subsection 3E, allocating such remaining funds in proportion to the value of the benefits so cancelled. C. The Board may in its discretion give effect to the provisions of the foregoing paragraphs A and B by the purchase of annuities, by continu- ing the Fund in existence and malting provisions thereunder for pension -37- benefits, or by immediate distribution from the Fund. If Z the Fund applicable to any asset distribution priority category insufficient to provide full benefits for all persons in such group, the benefits otherwise payable to such persons shall be reduced proportionately except as may otherwise be specified by regulations. If there is any balance remaining in the Fund after all obligations to Members, joint annuitants, Beneficiaries and surviving Spouses are met, such balance will revert to the City. The actuary shall calculate the allocation of the assets of the Fund in accordance with the asset distribution priority category, and certify his calculations to the Board. No liquidation of assets and payment of benefits (or provision there- fore) shall actually be made by the Board until after it is advised by the City in writing that applicable requirements, if any, of the Act gover- ning termination of "General Employee Pension Benefit Plans" have been, or are being, complied with or that appropriate authorizations, waivers, exceptions or variances have been, or are being, obtained. 3. No amendment or ordinance shall be adopted by the City Council of the City of Okeechobee which shall have the effect of reducing the then vested accrued benefits of Members or a Member's Beneficiaries. E TI N 19. REPEAL OR TERMINATION OF SYSTEM. 1. This ordinance establishing the System and Fund, and subsequent ordinances pertaining to said System and Fund, may be modified, terminated, or amended, in whole or in part; provided that if this or any subsequent ordinance shall be amended or repealed in its application to any person benefiting hereunder, the amount of benefits which at the time of any such alteration, amendment, or repeal shall have accrued to the Member or Beneficiary shall not be affected thereby, except to the extent that the assets of the Fund may be deter- mined to be inadequate. -38- I . • 2. If this ordinanc e shall be repealed, or if contributions to the Syst�ii discontinued, the Board shall continue to administer the System in accordance with 4C provisions of this ordinance, for the sole benefit of the then Members, any Beneficiaries then receiving retirement allowances, and any future persons entitled to receive benefits under one of the options provided for in this ordinance who are designated by any of said Members. In the event of repeal, or if contributions to the System are discontinued, there shall be full vesting (100%) of benefits accrued to date of repeal and the assets of the System shall be allocated in an equitable manner to provide benefits on a proportionate basis to the persons so entitled in accordance with the provisions thereof. 3. The following shall be the order of priority for purposes of allocating the assets of the System as of the date of repeal of this ordinance, or if contributions to the System are discontinued with the date of such discontinuation being determined by the Board. A. Apportionment shall first be made in respect of each retired General Employee receiving a retirement or disability benefit hereunder on such date, each person receiving a benefit on such date on account of a retired or disabled (but since deceased) General Employee, and each General Employee who has, by such date, become eligible for normal retirement but has not yet retired, an amount which is the Actuarial Equivalent of such benefit, based upon the actuarial assumptions in use for purposes of the most recent actuarial valuation, provided that, if such asset value be less than the aggregate of such amounts, such amounts shall be proportionately reduced so that the aggregate of such reduced amounts will be equal to such asset value. B. If there be any asset value remaining after the apportionment under paragraph A, apportionment shall next be made in respect of each General Employee in the service of the City on such date who has -39- completed at least ten (10) years of Credited Service and who n t entitled to an apportionment under paragraph A, in the amount requ 4j!�� to provide the Actuarial Equivalent, as described in A above, of the accrued normal retirement benefit, based on the Credited Service and average monthly earnings as of such date, and each vested former Member then entitled to a deferred benefit who has not, by such date, begun receiving benefit payments, in the amount required to provide said Actuarial Equivalent of the accrued normal retirement benefit, provided that, if such remaining asset value be less than the aggregate of the amounts apportioned hereunder, such latter amounts shall be proportionately reduced so that the aggregate of such reduced amounts will be equal to such remaining asset value. C. If there be any asset value after the apportionments under paragraphs A and B, apportionment shall be made in respect of each General Employee in the service of the City on such date who is not entitled to an apportionment under paragraphs A and B in the amount equal to Member's Accumulated Contributions, provided that, if such remaining asset value be less than the aggregate of the amounts apportioned here- under such latter amount shall be proportionately reduced so that the aggregate of such reduced amounts will be equal to such remaining asset value. D. If there be any asset value remaining after the apportionments under paragraphs A, B, and C, apportionment shall lastly be made in respect of each General Employee included in paragraph C above to the extent of the Actuarial Equivalent, as described in paragraph A above, of the accrued normal retirement benefit, less the amount apportioned in para- 0 graph C, based on the Credited Service and average mo earnings as of such date, provided that, if such remaining asset valuess than the aggregate of the amounts apportioned "` pp oned hereunder, such amci�ts4 0(*41% shall be reduced so that the aggregate of such reduced amounts will be equal to such remaining asset value. E. In the event that there be asset value remaining after the full apportionment specified in paragraphs A, B, C, and D, such excess shall be returned to the City, less return of the State's contributions to the State, provided that, if the excess is less than the total contributions made by the City and the State to the date of termination such excess shall be divided proportionately to the total contributions made by the City and the State. The allocation of the Fund provided for in this Subsection may, as decided by the Board, be carried out through the purchase of insurance company contracts to provide the benefits determined in accordance with this Subsection. The Fund may be distributed in one sum to the persons entitled to said benefits or the distribution may be carried out in such other equitable manner as the Board may direct. The Fund may be continued in existence for purposes of subsequent distributions. If, at any time during the first ten (10) years after the effective date of the ordinance originally establishing this System, the System shall be terminated or the full current costs of the System shall not have been met, anything in the System to the contrary notwithstanding, City contributions which may be used for the benefit of any one of the twenty-five (25) highest paid General Employees on the effective date, whose anticipated annual retirement allowance provided by the City's contributions at Member's normal retire- ment date would exceed $1,500, shall not exceed the greater of either a) $20,000, or b), an amount computed by multiplying the smaller of $10,000 or twenty percent (20%) of such -41- k , P • • General Employee's average annual earnings during Y g g g his last five (5) years of service number of years of service since the effective date. In the event that it shall hereafter determined by statute, court decision, ruling by the Commissioner of Internal Revenue, or otherwise, that the provisions of this paragraph are not then necessary to qualify the System under the Internal Revenue Code, this paragraph shall be ineffective without the necessity of further amendment of this ordinance. 4. After all the vested and accrued benefits provided hereunder have been paid and after all other liabilities have been satisfied, then and only then shall any remaining funds revert to the general fund of the City. SECTION 20. EXEMPTION FROM EXECUTION. NON-ASSWNABE=. Except as otherwise provided by law, the pensions, annuities, or any other benefits accrued or accruing to any person under the provisions of this ordinance and the Accumulated Contributions and the cash securities in the Fund created under this ordinance are hereby exempted from any state, county or municipal tax and shall not be subject to execution, attachment, garnishment or any legal process whatsoever and shall be unassignable. SECTION 21. PENSION VALIDTI'Y. The Board shall have the power to examine into the facts upon which any pension shall heretofore have been granted under any prior or existing law, or shall hereafter be granted or obtained erroneously, fraudulently or illegally for any reason. Said Board is empowered to purge the pension rolls of any person heretofore granted a pension under prior or existing law or heretofore granted under this ordinance if the same is found to be erroneous, fraudulent or illegal for any reason; and to reclassify any person who has heretofore under any prior or existing law been or who shall hereafter under this ordinance be erroneously, improperly or illegally classified. -42- � . 31 • • SECTION 22. FORFEITURE OF PENSION. 1. Any General Employee who is convicted of the following offenses committed prior to retirement, or whose employment is terminated by reason of his admitted commission, aid or abetment of the following specified offenses, shall forfeit all rights and benefits under this System, except for the return of his Accumulated Contributions as of the date of termination. Specified offenses are as follows: A. The committing, aiding or abetting of an embezzlement of public funds; B. The committing, aiding or abetting of any theft by a public officer or employee from employer; C. Bribery in connection with the employment of a public officer or employee; D. Any felony specified in Chapter 838, Florida Statures. E. The committing of an impeachable offense. F. The committing of any felony by a public officer or employee who willfully and with intent to defraud the public or the public agency, for which he acts or in which he is employed, of the right to receive the faithful performance of his duty as a public officer or employee, realizes or obtains or attempts to obtain a profit, gain, or advantage for himself or for some other person through the use or attempted use of the power, rights, privileges, duties or position of his public office or employment position. 2. Conviction shall be defined as an adjudication of guilt by a court of competent jurisdiction; a plea of guilty or a nolo contendere; a jury verdict of guilty when adjudication of guilt is withheld and the accused is placed on probation; or a conviction by the Senate of an impeachable offense. -43- 3. Court shall be defined as any state or federal court of competent jurisdiction which is exercising its jurisdiction to consider a proceeding involving the alleged commission of a specified offense. Prior to forfeiture, the Board shall hold a hearing on which notice shall be given to the Member whose benefits are being considered for forfeiture. Said Member shall be afforded the right to have an attorney present. No formal rules of evidence shall apply, but the Member shall be afforded a full opportunity to present his case against forfeiture. 4. Any Member who has received benefits from the System in excess of his Accumulated Contributions after Member's rights were forfeited shall be required to pay back to the Fund the amount of the benefits received in excess of his Accumulated Contributions. The Board may implement all legal action necessary to recover such funds. SECTION 23. INDEMN ] ICATION. 1. To the extent not covered by insurance contracts in force from time to time, the City shall indemnify and hold harmless members of the Board from all personal liability for damages and costs, including court costs and attorneys' fees, arising out of claims, suits, litigation, or threat of same, herein referred to as "claims", against these individuals because of acts or circumstances connected with or arising out of their official duty as members of the Board. The City reserves the right, in its sole discretion, to settle or not settle the claim at any time, and to appeal or to not appeal from any adverse judgment or ruling, and in either event will indemnify and hold harmless any members of the Board from the judgment, execution, or levy thereon. 2. This Section shall not be construed so as to relieve any insurance company or other entity liable to defend the claim or liable for payment of the judgment or claim, from any liability, nor does this Section waive any provision of law affording the City immunity from any suit in whole or part, or waive any other substantive or procedural rights the City may have. W... 3. This Section shall not apply nor shall the City be responsible in aA**14b ny mw/er to defend or pay for claims arising out of acts or omissions of members of the Board whic ( 4j$'** constitute felonies or gross malfeasance or gross misfeasance in office. SECTION 24. TRANSFERS WIITM THE CITY. If a member of any of the City's three retirement systems transfers to either of the other two systems, he must choose one of the following procedures with regard to Credited Service accrued to date of transfer. 1. The Member may take a refund of his Accumulated Contributions, in which event no pension benefit shall be payable based on Credited Service attributable to the period covered. 2. The member may leave his Accumulated Contributions in the fund in which event his Credited Service with both systems shall be combined for purposes of determining eligibility for benefits and for vesting. When the member is eligible to receive a benefit, he shall receive benefits from both systems, which shall consist of accrued benefits under each system based on the provisions of the respective system and the earnings and Credited Service under that system. SECTION 25. MILITARY SERVICE PRIOR TO EMPLOYMENT. The years or fractional parts of years that a General Employee serves or has served on active duty in the active military service of the Armed Forces of the United States or the United States Merchant Marine, voluntarily or involuntarily, honorably or under honorable conditions, prior to first and initial employment with the City Fire Department shall be added to his years of Credited Service provided that: 1. The General Employee contributes to the Fund the sum that he would have contributed had he been a member of the System for the years or fractional parts of years for which he is requesting credit plus amounts actuarially determined such that the crediting -45- r of service does not result in any cost to the Fund plus payment of costs for all professional services rendered to the Board in connection with the purchase of years of Credited Service. 2. The request shall be made only once and made by the General Employee on or before twelve (12) months from the Effective Date of this ordinance or six (6) months from the date of his employment with the City Fire Department, whichever is later. 3. Payment by the General Employee of the required amount shall be made within six (6) months of his request for credit and shall be made in one lump sum payment upon receipt of which Credited Service shall be given. 4. The maximum credit under this Section shall be four (4) years. 5. Credited Service purchased pursuant to this section shall not count toward vesting. SECTION 26. DIR��'I' TRANSFERS OF ELIGIBLE ROLLOVER DISTRIBUTIONS. 1 General. This Section applies to distributions made on or after January 1, 1993. Notwithstanding any provision of the plan to the contrary that would otherwise limit a distributee's election under this Section, a distributee may elect, at the time and in the manner prescribed by the Board, to have any portion of an eligible rollover distribution paid directly to an eligible retirement plan specified by the distributee in a direct rollover. 2. Definitions. A. Eligible Rollover Distribution: 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 -46- cAA--17 %AW A*Q#* Beneficiary, or for a specified period of ten years or more distribution to the extent such distribution is required under section 4j! 401(a)(9) of the Code; and the portion of any distribution that is not includible in gross income. B. Eligible Retirement Plan: An eligible retirement plan is an individual retirement account described in section 408(a) of the Code, an individual retirement annuity described in section 408(b) of the Code, an annuity plan described in section 403(a) of the Code, or a qualified trust described in section 401(a) of the Code, that accepts the distributee's eligible rollover distribution. However, in the case of an eligible rollover distribution to the surviving Spouse, an eligible retirement plan is an individual retirement account or individual retirement annuity. C. Distributee: A distributee includes an employee or former employee. In addition, the employee's or former employee's surviving Spouse is a distributee with regard to the interest of the Spouse. D. Direct Rollover: A direct rollover is a payment by the plan to the eligible retirement plan specified by the distributee. -47- 1., ORDINANCE NO. 461 AN ORDINANCE OF THE CITY OF OKEECHOBEE , AMENDING AND RESTATING THE CITY OF OKEECHOBEE RETIREMENT SYSTEM FOR FIREFIGHTERS AS ADOPTED BY ORDINANCE 420 AND AS SUBSEQUENTLY AMENDED; PROVIDING FOR DEFINITIONS; PROVIDING FOR MEMBERSHIP; PROVIDING FOR A BOARD OF TRUSTEES; PROVIDING FOR FINANCES AND FUND MANAGEMENT; PROVIDING FOR CONTRIBUTIONS; PROVIDING FOR BENEFIT AMOUNTS AND ELIGIBILITY; PROVIDING FOR DEATH BENEFITS; PROVIDING FOR DISABILITY BENEFITS; PROVIDING FOR VESTING OF BENEFITS; PROVIDING OPTIONAL FORMS OF BENEFITS; PROVIDING FOR BENEFICIARIES; PROVIDING A CLAIMS PROCEDURE; PROVIDING FOR REPORTS TO THE DEPARTMENT OF INSURANCE; PROVIDING FOR A ROSTER OF RETIREES; PROVIDING FOR A BOARD ATTORNEY AND PROFESSIONALS; PROVIDING FOR A MAXIMUM PENSION LIMITATION; PROVIDING FOR COMMENCEMENT AND DISTRIBUTION OF BENEFITS; PROVIDING MISCELLANEOUS PROVISIONS; PROVIDING FOR REPEAL OR TERMINATION OF THE SYSTEM; PROVIDING FOR EXEMPTION FROM EXECUTION AND NON -ASSIGNABILITY; PROVIDING FOR PENSION VALIDITY; PROVIDING FOR FORFEITURE OF PENSION UNDER CERTAIN CIRCUMSTANCES; PROVIDING FOR INDEMNIFICATION; PROVIDING FOR TRANSFERS WITHIN THE CITY; PROVIDING FOR CREDIT FOR MILITARY SERVICE PRIOR TO EMPLOYMENT; PROVIDING FOR DIRECT TRANSFERS OF ELIGIBLE ROLLOVER DISTRIBUTIONS; PROVIDING FOR CODIFICATION; PROVIDING FOR SEVERABILITY OF PROVISIONS; REPEALING ALL ORDINANCES IN CONFLICT HEREWITH AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Okeechobee Firefighters are presently provided pension and certain other benefits under Ordinances of the City of Okeechobee and; WHEREAS, the City Council desires to clarify and restate the provisions of the Firefighters' Retirement Plan to consolidate all prior ordinances and Code provisions and to incorporate Federal law and the applicable provisions of Chapter 175, Florida Statutes,; NOW, THEREFORE, s BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF OKEECHOBEE, FLORIDA: SECTION 1: That the City of Okeechobee Retirement System for Firefighters as adopted by Ordinance 420 and as subsequently amended, be and the same * ended and restated as set forth in the document designated CITY OF OKEECHOBEIE' Mtez AL FIREFIGHTERS' PENSION TRUST FUND, attached hereto and made a part SECTION 2: Specific authority is hereby granted to codify and incorporate Ordinance in the existing Code of Ordinances of the City of Okeechobee. SECTION 3.: All Ordinances or parts of Ordinances in conflict herewith be and the same are hereby repealed. SECTION 4: If any section, subsection, sentence, clause, phrase of this ordinance, or the particular application thereof shall be held invalid by any court, administrative agency, or other body with appropriate jurisdiction, the remaining section, subsection, sentences, clauses, or phrases under application shall not be affected thereby. SECTION 5: That this Ordinance shall become effective upon adoption. Introduced on first reading and set for public hearing this day of 1993. "V Passed on second and final reading this day of 1993. ATTEST: CITY CLERK MAYOR CITY OF OKEECHOBEE MUNICIPAL FIREFIGHTERS' PENSION TRUST FUND a 1` 0 CITY OF 01=CHOBEE MUNICIPAL FIREFIGHTERS' PENSION TRUST FUND TABLE OF CONTENTS SECTION DEFINITIONS MEMBERSHIP BOARD OF TRUSTEES FINANCES AND FUND MANAGEMENT CONTRIBUTIONS BENEFIT AMOUNTS AND ELIGIBILITY DEATH BENEFITS DISABILITY VESTING OPTIONAL FORMS OF BENEFITS BENEFICIARIES CLAIMS PROCEDURES REPORTS TO DEPARTMENT OF INSURANCE ROSTER OF RETIREES BOARD ATTORNEY AND PROFESSIONALS MAXIMUM PENSION COMMENCEMENT OF BENEFITS DISTRIBUTIONS OF BENEFITS MISCELLANEOUS PROVISIONS REPEAL OR TERMINATION OF SYSTEM EXEMPTION FROM EXECUTION, NON -ASSIGNABILITY PENSION VALIDITY FORFEITURE OF PENSION INDEMNIFICATION PAGE NUMBER 4 4 7 12 14 15 16 20 21 24 24 31 32 33 33 36 37 39 41 44 45 45 46 0 TRANSFERS WITHIN THE CITY MILITARY SERVICE PRIOR TO EMPLOYMENT DIRECT TRANSFERS OF ELIGIBLE ROLLOVER DISTRIBUTIONS 47 48 48 • U SECTION 1. DEFR*;MONS. 1. As used herein, unless otherwise defined or required by the context, the following words and phrases shall have the meaning indicated: Accumulated Contributions means a Member's own contributions Altm est at the rate of five and one -quarter percent (5-1/4%) per annum. For those Membe o purchase Credited Service at no cost to the System pursuant to Sections 25 and 26, only that portion of any payment representing the sum that he would have contributed had he been a Member of the System for the years for which he is requesting credit, shall be included in Accumulated Contributions. Asd means the Employee Retirement Income Security Act of 1974 (P.L. 93- 406) as amended by the Retirement Equity Act of 1984 (P.L. 98-397) and any regulations issued thereunder by the Department of Labor and the Internal Revenue Service, as that Statute and these regulations shall be amended. Actuarial Eauivalent means that any benefit payable under the terms of this System in a form other than the normal form of benefit shall have the same actuarial present value on the date payment commences as the normal form of benefit. For purposes of establishing the actuarial present value of any form of payment other than a lump sum distribution, all future payments shall be discounted for interest and mortality by using 7 % interest and the 1971 Group Annuity Mortality Table for Males, with ages set ahead five years in the case of disability retirees. Average Final Comoensation means one -twelfth (1/12) of the average Salary of the five (5) best years of the last ten (10) years of Credited Service prior to retirement, termination, or death, or the career average as a full-time Firefighter, whichever is greater. A year shall be twelve (12) consecutive months. Beneficiary means the person or persons entitled to receive benefits hereunder at the death of a Member who has or have been designated in writing by the Member and -1- F filed with the Board. If no such designation is in effect, or if no person so designated is living, at the time of death of the Member, the Beneficiary shall be the estate of the Member. Board means the Board of Trustees, which shall administer and mane System herein provided and serve as trustees of the Fund. C.ijy means City of Okeechobee, Florida. Code means the Internal Revenue Code of 1986, as amended from time to time. Credited Service means the total number of years and fractional parts of years of service as a Firefighter with Member contributions to the System, omitting intervening years or fractional parts of years when such Firefighter may not be employed by the City. A Firefighter may voluntarily leave his contribution in the Fund for a period of five (5) years after leaving the employ of the Fire Department pending the possibility of being rehired, and remaining employed for a period of not less than three (3) years, without losing credit for the time of active participation as a Firefighter. If the Firefighter does not remain employed for a period of three (3) years upon reemployment within five (5) years, then the Accumulated Contributions will be returned upon the written request of the Member. The years or fractional parts of years that a Firefighter serves in the military service of the Armed Forces of the United States or the United States Merchant Marine, voluntarily or involuntarily, after separation from employment as a Firefighter with the City, shall be added to his years of Credited Service, for all purposes, including vesting, provided that (except as otherwise prohibited by law, in which case the minimum standards for compliance shall apply): A. The Firefighter must return to his employment as a Firefighter with the City within one (1) year from the date of his military discharge. -2- • • B. The Firefighter deposits into the Fund the same sum that Member would have contributed if he had remained a Firefighter, plus an amount of interest that substantially approximates the amoo*ed by the Fund from the date of return to employment to the date of it. P C. The maximum credit for military service shall be five (5) years. Effective Date, means the date on which this ordinance becomes effective. Firefighter means an actively employed full-time person employed by the City, including his initial probationary employment period, who is certified as a Firefighter as a condition of employment in accordance with the provisions of §633.35, Florida Statutes, and whose duty it is to extinguish fires, to protect life and to protect property. Fund means the trust fund established herein as part of the System. Member means an actively employed Firefighter who fulfills the prescribed participation requirements. Salary means the basic compensation paid by the City to a Member, plus all tax deferred and tax exempt items of income, but excluding overtime, bonuses and any other non -regular payment. S2ouse means the lawful wife or husband of a Member at the time of pre - retirement death or retirement. System means the City of Okeechobee Municipal Firefighters' Pension Fund as contained herein and all amendments thereto. 2. Masculine Gender. The masculine gender, where used herein, unless the context specifically requires otherwise, shall include both the feminine and masculine genders. -3- SECTION 2. MEMBERSHIP. 1. Conditions of Elieibilitv. A. All Firefighters as of the Effective Date, and all Afutue ew Firefighters, shall become Members of this 'ao g � s System as a conditio f employment. B. All future new Firefighters shall be required to complete a medical examination as prescribed by the City. Based upon medical evidence of a pre-existing adverse health condition, resulting from the prescribed examination or other records or medical history, the Board may declare any Member ineligible for disability benefits hereunder, as related to such pre-existing condition. Each declaration shall be reflected in the minutes of the meeting of the Board at which such declaration was formally adopted or established by the Board. 2. Membershin. Each Firefighter shall complete a form prescribed by the Board providing the following information: A. Acceptance of the terms and conditions of the System, and, B. Designation of a Beneficiary or Beneficiaries, and, C. A sworn statement as to prior medical and psychological history. 3. Chanee in Designation of Beneficiary. A Member may from time to time change his designated Beneficiary by written notice to the Board upon forms provided by the Board. Upon such change, the rights of all previously designated Beneficiaries to receive any benefits under the System shall cease. SECTION 3. BOARD OF TRUSTEES. 1. The sole and exclusive administration of and responsibility for the proper operation of the System and for malting effective the provisions of this ordinance are hereby C' vested in a Board of Trustee. The Board of Trustees is hereby designated as the plan administrator. The Board of Trustees shall consist of five (5) Trustees, two of whom, unless otherwise prohibited by law, shall be legal residents of the municipality, who shall be appointed by the Okeechobee City Council, and two of whom shall be full-time Firefighter Members of the System, who shall be elected by a majority of the Firefighters who are Members of the System. The fifth Trustee shall be chosen for a two (2) year term by a majority of the previous four Trustees as provided for herein, and such person's name shall be submitted to the Okeechobee City Council. Upon receipt of the fifth person's name, the Okeechobee City Council shall, as a ministerial duty, appoint such person to the Board of Trustees as its fifth Trustee. The fifth Trustee shall have the same rights as each of the other four Trustees appointed or elected as herein provided and shall serve a two (2) year term unless the office is sooner vacated and may succeed himself in office. Each resident Trustee shall serve as Trustee for a period of two (2) years, unless sooner replaced by the Okeechobee City Council at whose pleasure the Trustee shall serve, and may succeed himself as a Trustee. Each Firefighter Trustee shall serve as Trustee for a period of two (2) years, unless he sooner leaves the employment of the City as a Firefighter or otherwise vacates his office as Trustee, whereupon a successor shall be chosen in the same manner as the departing Trustee. Each Firefighter may succeed himself in office. The Board of Trustees shall meet at least quarterly each year. The Board of Trustees shall be a legal entity with, in addition to other powers and responsibilities contained herein, the power to bring and defend lawsuits of every kind, nature, and description. 2. The Trustees shall, by a majority vote, elect a Chairman and a Secretary. The Secretary of the Board shall keep a complete minute book of the actions, proceedings, or hearings of the Board. The Trustees shall not receive any compensation as such, but may receive expenses and per diem as provided by law. -5- 3. Each Trustee shall be entitled to one vote on the Board. Three (3) affirmative votes shall be necessary for any decision by the Trustees at any meeting of the�d. A Trustee shall have the right to abstain from voting as the result of a conflict of in�st provided that Trustee complies with the provisions of Section 112.3143, Florida Statute 4. The Board shall engage such actuarial, accounting, legal, and other services as shall be required to transact the business of the System. The compensation of all persons engaged by the Board and all other expenses of the Board necessary for the operation of the System shall be paid from the Fund at such rates and in such amounts as the Board shall agree. 5. The duties and responsibilities of the Board shall include, but not necessarily be limited to, the following: A. To construe the provisions of the System and determine all questions arising thereunder. B. To determine all questions relating to eligibility and membership. C. To determine and certify the amount of all retirement allowances or other benefits hereunder. D. To establish uniform rules and procedures to be followed for adminis- trative purposes, benefit applications and all matters required to administer the System. E. To distribute to Members, at regular intervals, information concerning the System. F. To receive and process all applications for membership and benefits. G. To authorize all payments whatsoever from the Fund, and to notify the disbursing agent, in writing, of approved benefit payments and other expenditures arising through operation of the System and Fund. M H. To have performed actuarial studies and at Least biennial valuations, and make recommendations regarding any and allPCges in the provisions of the System. , I. To perform such other duties as are specified in this ordinan SECTION 4. FINANCES AND FUND MANAGEMENT. 4j! Establishment and Oneration of Fund. 1. As part of the System, there is hereby established the Fund, into which shall be deposited all of the contributions and assets whatsoever attributable to the System, including the assets of the prior Municipal Firefighters' Pension Fund. 2. The actual custody and supervision of the Fund (and assets thereof) shall be vested in the Board. Payment of benefits and disbursements from the Fund shall be made by the disbursing agent but only upon written authorization from the Board. 3. All funds and securities of the Municipal Firefighters' Pension Fund may be deposited by the Board with the Finance Director of the municipality, acting in a ministerial capacity only, who shall be liable in the same manner and to the same extent as he is liable for the safekeeping of funds for the municipality. However, any funds and securities so deposited with the Finance Director of the municipality shall be kept in a separate fund by the Finance Director or clearly identified as such funds and securities of the Municipal Firefighters' Pension Fund. In lieu thereof, the Board shall deposit the funds and securities of the Municipal Firefighters' Pension Fund in a qualified public depository as defined in §280.02, Florida Statutes, which depository with regard to such funds and securities shall conform to and be bound by all of the provisions of Chapter 280, Florida Statutes. In order to fulfill its investment responsibilities as set forth herein, the Board may retain the services of a custodian bank, an investment advisor registered under the Investment Advisors Act of 1940 or otherwise exempt from such required registration, an insurance company, or a combination of these, for the purposes of investment decisions and management. Such -7- investment manager shall have discretion, subject to any guidelines as prescribed by the Board, in the investment of all Fund assets. A 4. All funds and securities of the System may be commingled in th/F d, provided that accurate records are maintained at all times reflecting the financial composition 4J! of the Fund, including accurate current accounts and entries as regards the following: A. Current amounts of Accumulated Contributions of Members on both an individual and aggregate account basis, and B. Receipts and disbursements, and C . Benefit payments, and D. Current amounts clearly reflecting all monies, funds and assets whatsoever attributable to contributions and deposits from the City, and E. All interest, dividends and gains (or losses) whatsoever, and F. Such other entries as may be properly required so as to reflect a clear and complete financial report of the Fund. 5. An independent audit shall be performed annually by a certified public accountant for the most recent fiscal year of the City showing a detailed listing of assets and a statement of all income and disbursements during the year. Such income and disburse- ments must be reconciled with the assets at the beginning and end of the year. Such report shall reflect a complete evaluation of assets on both a cost and market basis, as well as other items normally included in a certified audit. 6. The Board shall have the following investment powers and authority: A. The Board shall be vested with full legal title to said Fund, subject, however, and in any event to the authority and power of the Okeechobee City Council to amend or terminate this Fund, provided that no amendment or Fund termination shall ever result in the use of any assets of this Fund except for the payment of regular expenses and -8- • benefits under this System. All contributions from tim#4Q\-me paid into the Fund, and the income thereof, without distinction betw/Z n- cipal and income, shall be held and administered by the Boarits agent in the Fund and the Board shall not be required to segregate invest separately any portion of the Fund. B. All monies paid into or held in the Fund shall be invested and reinvested by the Board and the investment of all or any part of such funds shall be limited to: (1) Annuity and life insurance contracts of life insurance companies in amounts sufficient to provide, in whole or in part, the benefits to which all of the members in the Fund shall be entitled under the provisions of this System and pay the initial and subsequent premium thereon. (2) Time or savings accounts of a national bank, a state bank or a savings/building and loan association insured by the Federal Deposit Insurance Corporation. (3) Obligations of the United States or obligations guaranteed as to principal and interest by the government of the United States. (4) Bonds issued by the State of Israel. (S) Bonds, stocks, commingled funds administered by National or State Banks or evidences of indebtedness issued or guaranteed by a corporation organized under the laws of the United States, any state or organized territory of the United States, or the District of Columbia, provided that the corporation is traded on a nationally recognized exchange and holds a rating in one of the three highest classifications by a major rating service, and 0 if such investments are made in a pooled fund administered by a state or national bank, then the rating of eAs °ue in the pooled fund shall hold a rating within the top three*,?)<'eS<I(***, ting classifications of a major rating service and no foreign ments shall be permitted in the pooled fund. (6) Real estate. C. The Board shall not invest more than five percent (5 %) of its assets in the common stock, capital stock, or convertible securities of any one issuing company, nor shall the aggregate investment in any one issuing company exceed five percent (5 %) of the outstanding capital stock of that company; nor shall the aggregate of its investments in common stock, capital stock and convertible securities at cost exceed sixty percent (60 %) of the assets of the Fund. D. The Board may retain in cash and keep unproductive of income such amount of the Fund as it may deem advisable, having regard for the cash requirements of the System. E. No person or entity shall be liable for the making, retention or sale of any investment or reinvestment made as herein provided, nor for any loss or diminishment of the Fund, except that due to his or its own negligence, willful misconduct or lack of good faith. F. The Board may cause any investment in securities held by it to be registered in or transferred into its name as Trustee or into the name of such nominee as it may direct, or it may retain them unregistered and in form permitting transferability, but the books and records shall at all times show that all investments are part of the Fund. -10- G. The Board is empowered, but is not required, to vote upoAMocks, bonds, or securities of any corporation, association, or trust and�Zer e general or specific proxies or powers of attorney with or without of substitution; to participate in mergers, reorganizations, recapitaliza- < * tions, consolidations, and similar transactions with respect to such securities; to deposit such stock or other securities in any voting trust or any protective or like committee with the Trustees or with deposito- ries designated thereby; to amortize or fail to amortize any part or all of the premium or discount resulting from the acquisition or disposition of assets; and generally to exercise any of the powers of an owner with respect to stocks, bonds, or other investments comprising the Fund which it may deem to be to the best interest of the Fund to exercise. H. The Board shall not be required to make any inventory or appraisal or report to any court, nor to secure any order of court for the exercise of any power contained herein. I. Where any action which the Board is required to take or any duty or function which it is required to perform either under the terms herein or under the general law applicable to it as Trustee under this ordi- nance, can reasonably be taken or performed only after receipt by it from a Member, the City, or any other entity, of specific information, certification, direction or instructions, the Board shall be free of liability in failing to take such action or perform such duty or function until such information, certification, direction or instruction has been received by it. J. Any overpayments or underpayments from the Fund to a Member or Beneficiary caused by errors of computation shall be adjusted with -11- interest at a rate per annum approved by the Board. O�cc r payment shall be charged against payments next succeeding Mection. g g PY g Underpayments shall be made up from the Fund. K. The Board shall sustain no liability whatsoever for the sufficiency 9($S the Fund to meet the payments and benefits herein provided for. L. In any application to or proceeding or action in the courts, only the Board shall be a necessary party, and no Member or other person having an interest in the Fund shall be entitled to any notice or service of process. Any judgment entered in such a proceeding or action shall be conclusive upon all persons. M. Any of the foregoing powers and functions reposed in the Board may be performed or carried out by the Board through duly authorized agents, provided that the Board at all times maintains continuous supervision over the acts of any such agent; provided further, that legal title to said Fund shall always remain in the Board. N. The Board shall not invest more than ten percent (10%) at cost of its assets in real property or real estate and there shall be no investment in a limited partnership or trust. SECTION 5. CONTRIBUTIONS. 1. Member Contributions. A. Amount. Members of the System shall be required to make regular contributions to the Fund in the amount of five percent (5 %) of his Salary. Member contributions withheld by the City on behalf of the Member shall be deposited with the Board at least monthly. The contributions made by each Member to the Fund shall be designated as employer contributions pursuant to §414(h) of the Internal Revenue -12- • • Code of 1986. Such designation is contingent upon the cyot*tions being excluded from the Members' gross income for Federal I�m Tax purposes. For all other purposes of the System, such cont s shall be considered to be Member contributions. B. Method. Such contributions shall be made by payroll deduction. 2. State Contributions. Any monies received or receivable by reason of laws of the State of Florida, for the express purpose of funding and paying for retirement benefits for Firefighters of the City shall be deposited in the Fund comprising part of this System immediately and under no circumstances more than five (5) days after receipt by the City. 3. City Contributionq. So long as this System is in effect, the City shall make quarterly contributions to the Fund in an amount equal to the difference in each year, between the total aggregate Member contributions for the year, plus state contributions for such year, and the total cost for the year, as shown by the most recent actuarial valuation of the System. The total cost for any year shall be defined as the total normal cost plus the additional amount sufficient to amortize the unfunded past service liability over a forty (40) year period, commencing with the fiscal year in which the Effective Date of this System occurs. 4. Other. Private donations, gifts and contributions may be deposited to the Fund, but such deposits must be accounted for separately and kept on a segregated bookkeeping basis. Funds arising from these sources may be used only for additional benefits for Members, as determined by the Board, and may not be used to reduce what would have otherwise been required City contributions. -13- F SECTION 6. BENEFIT AMOUNTS AND ELIGIBILITY. 1. Normal Retirement Date. / A Member's normal retirement date shall be the first day of the mo coincident with, or the next following age sixty (60) and the completion of ten (10) years of Credited Service or upon the completion of thirty (30) years of Credited Service regardless of age. A Member may retire on his normal retirement date or on the first day of any month thereafter, and each Member shall become 100 % vested in his accrued benefit on the Member's normal retirement date. Normal retirement under the System is retirement from employment with the City on or after the normal retirement date. 2. Normal Retirement Benefit. A Member retiring hereunder on or after his normal retirement date shall receive a monthly benefit which shall commence on his retirement date and be continued thereafter during Member's lifetime, ceasing upon death, but with one hundred twenty (120) monthly payments guaranteed in any event. The monthly retirement benefit shall equal two and seven tenths percent (2.7 %) of Average Final Compensation, for each year of Credited Service. 3. Early Retirement Date. A Member may retire on his early retirement date which shall be the first day of any month coincident with or next following the attainment of age fifty-five (55) and the completion of ten (10) years of Credited Service. Early retirement under the System is retirement from employment with the City on or after the early retirement date and prior to the normal retirement date. 4. Early Retirement Benefit. A Member retiring hereunder on his early retirement date may receive either a deferred or an immediate monthly retirement benefit payable in the same form as for normal retirement as follows: -14- A. A deferred monthly retirement benefit which shall cory!! %tv n what would have been his normal retirement date had he continued a to - Y ment as a Firefighter and shall be continued on the first day o c month thereafter. The amount of each such deferred monthly retire- ment benefit shall be determined in the same manner as for retirement on his normal retirement date except that Credited Service and Average Final Compensation shall be determined as of his early retirement date; or B. An immediate monthly retirement benefit which shall commence on his early retirement date and shall be continued on the first day of each month thereafter. The benefit payable shall be as determined in paragraph A above, which is reduced by one -fifteenth (1/15th) for each of the first five (5) years and one -thirtieth (1/30th) for each of the next five (5) years by which the commencement of benefits precedes the date which would have been the Member's normal retirement date had he continued employment as a Firefighter. SECTION 7. DEATH BENEFITS. 1. Prior to Vestine or Eligibility for Retirement. The Beneficiary of a deceased Member who was not receiving monthly benefit payments, or who was not yet vested or eligible for retirement shall receive a refund of one hundred percent (100%) of the Member's Accumulated Contributions. 2. Deceased Members Vested or Eligible for Retiremen4. Any Member, whether or not still actively employed, who has a right to a vested accrued benefit, shall be eligible for a death benefit if he dies before collecting any other benefits from this System. The amount of the death benefit shall be equal to fifty -15- percent (50 %) of the actuariallequivalent single sum value of the M Akk* Y a q g ember s vested�crued benefit, or his Accumulated Contributions, whichever is greater. If this single sum value is less than $3,500, it shall be paid in a lump sum If the value exceeds $3,500, the Beneficiary may elect payment under any of the optional forms available for retirement benefits or a lump sum payment. If a Member is eligible for early or normal retirement, but remains in employment and dies while so employed, the death benefit shall be determined as follows: It shall be assumed that such deceased Member had retired immediately preceding his date of death and elected the Ten Year Certain and Life Thereafter option. However, the death benefit shall be equal to fifty percent (50 %) of the actuarially equivalent single sum value of the Member's vested accrued benefit, if larger than the Ten Year Certain and Life Thereafter option, described earlier in this Section. SECTION 8. DISABILITY. 1. I ability Benefits On -Duty. Each Firefighter who is a Member in the System and who shall have become totally and permanently disabled while an active Member of the Okeechobee Fire Department to the extent that he is unable, by reason of a medically determinable physical or mental impairment, to render useful and efficient service as a Firefighter, which disability was directly caused by the performance of his duty as a Firefighter, shall, upon establishing the same to the satisfaction of the Board, be entitled to a monthly pension determined in the same manner as for early retirement as set forth in Section 6, subsection 4B, providing for an actuarial reduction. Any condition or impairment of health of a Firefighter caused by tuberculosis, hypertension or heart disease shall be presumed to have been suffered in line of duty unless the contrary is shown by competent evidence, provided that such Firefighter shall have suc- cessfully passed a physical examination upon entering into such service, including cardio- 5W 0 4 gram, which examination failed to reveal any evidence of such condition; and p>bvi further, that such presumption shall not apply to benefits payable or granted in a policy life insurance or disability insurance. 2. i�bility Benefits Off -Duty. Every Firefighter who is a Member in the System with five (5) or more years of Credited Service who shall have become totally and permanently disabled to the extent that he is unable, by reason of a medically determinable physical or mental impairment, to render useful and efficient service as a Firefighter, which disability is not directly caused by the performance of his duties as a Firefighter shall be entitled to a monthly pension determined in the same manner as for early retirement as set forth in Section 6, subsection 4B, providing for an actuarial reduction. 3. Conditions Disoualifvine Dis4bility Benefit.. Each Firefighter who is claiming disability benefits shall establish, to the satisfaction of the Board, that such disability was not occasioned primarily by: A. Excessive or habitual use of any drugs, intoxicants, or alcohol. B. Injury or disease sustained while willfully and illegally participating in fights, riots or civil insurrections. C. Injury or disease sustained while committing a crime. D. Injury or disease sustained while serving in any branch of the Armed Forces. E. Injury or disease sustained after his employment as a Firefighter with the City Okeechobee shall have terminated. F. Willful, wanton conduct or gross negligence of the Member. G. Injury or disease sustained by the Firefighter while working for anyone other than the City and arising out of such employment. -17- • • H. A condition pre-existing the Firefighter's membershioolt*e System. No Member shall be entitled to a disability pension, whethe/n - e of duty or not in line of duty, because of or due to the aggravate of specific injury, impairment or other medical condition pre-existing the time of membership in the System, provided that such pre-existing condition and its relationship to a later injury, impairment or other medical condition be established by competent substantial evidence. Nothing herein shall be construed to preclude a disability pension to a Member who, after membership in the System, suffers an injury, impairment or other medical condition different from some other injury, impairment, or other medical condition existing at or prior to said membership. 4. Phvsical Examination Reauirement. A Firefighter shall not become eligible for disability benefits until and unless he undergoes a physical examination by a qualified physician or physicians and/or surgeon or surgeons, who shall be selected by the Board for that purpose. Any Firefighter receiving disability benefits under provisions of this ordinance may be periodically re-examined by a qualified physician or physicians and/or surgeon or surgeons who shall be selected by the Board, to determine if such disability has ceased to exist. If the Board finds that the retiree is no longer permanently and totally disabled to the extent that he is unable to render useful and efficient service as a Firefighter, the Board shall recommend to the City that the retiree be returned to performance of duty as a Firefighter, and the retiree so returned shall enjoy the same rights that Member had at the time he was placed upon pension. In the event the retiree so ordered to return shall refuse to comply with the order within thirty (30) days from the issuance thereof, Member shall forfeit the right to his pension. -18- The cost of the physical examination and/or re-examination of the Fut, r claiming and/or receiving disability benefits shall be borne by the Fund. All o r reasonable costs as determined by the Board incident to the physical examination, such as, but not limited to, transportation, meals and hotel accommodations, shall be borne by the Fund. If the Firefighter recovers from disability and reenters the service of the City as a Firefighter, his service shall be deemed to have been continuous, and the period for which Member received a disability retirement income shall be Credited Service for purposes of the System. If the Firefighter fails to reenter the service of the City as a Firefighter within thirty (30) days from the date the Board determines that the retiree is no longer permanently and totally disabled to the extent that he is unable to render useful and efficient service as a Firefighter, the Member's future benefits shall be determined as though he initially terminated employment on the date the Board determined that he was permanently and totally disabled to the extent that he was unable to render useful and efficient service as a Firefighter. The Board shall have the power and authority to make the final decisions regarding all disability claims. 5. Disability Pavments. The monthly benefit to which a Member is entitled in the event of the Member's disability retirement shall be payable on the first day of the first month after the Board determines such entitlement. However, the monthly retirement income shall be payable as of the date the Board determined such entitlement, and any portion due for a partial month shall be paid together with the first payment. The last payment will be: A. If the Firefighter recovers from the disability prior to his normal retirement date, the payment due next preceding the date of such recovery, or -19- B. If the Firefighter dies without recovering from disability or attains normal retirement date while still disabled, the payment due next preceding his death or the 120th monthly payment, whichever is later. 6. Workers' Compensation. When a Member is receiving a disability pension and workers' compensation benefits pursuant to Florida Statute Chapter 440, for the same disability, and the total monthly benefits received from both exceed 100 % of the Member's final monthly Salary, excluding overtime, the disability pension benefit shall be reduced so that the total monthly amount received by the Member does not exceed 100 % of such Salary. SECTION 9. VESTING. If a Member terminates his employment with the Fire Department, either voluntarily or by discharge, and is not eligible for any other benefits under this System, Member shall be entitled to the following: 1. If the Member has less than ten (10) years Credited Service upon termination, the Member shall be entitled to a refund of his Accumulated Contributions or Member may leave it deposited with the Fund. 2. If the Member has ten (10) or more years of Credited Service upon termination, the Member shall be entitled to a monthly retirement benefit that is the Actuarial Equivalent of the amount of such retirement income otherwise payable to him commencing at Member's otherwise normal or early retirement date, provided he does not elect to withdraw his Accumulated Contributions and provided Member survives to his normal or early retirement date. 3. Any Firefighter of the System whose position is terminated, for whatever reason, but who remains employed by the City in some other capacity, shall have all retirement benefits accrued up to the date of such termination under this System preserved, provided he does not elect to withdraw his Accumulated Contributions from this System. -20- Such accrued retirement benefits shall be payable at his otherwise normal retiremen/a hereunder, or later, in accordance with the provisions of this System; provided furth however, that benefits shall not be payable under this System during any period of continued employment by the City. SECTION 10. OPTIONAL FORMS OF BENEFITS. 1. In lieu of the amount and form of retirement income payable in the event of normal or early retirement as specified herein, a Firefighter, upon written request to the Board may elect to receive a retirement income or benefit of equivalent actuarial value payable in accordance with one of the following options: A. A retirement income of a modified monthly amount, payable to the Firefighter during the lifetime of the Firefighter and following the death of the Firefighter, 100 % , 75 % , or 50 % of such monthly amount payable to a joint pensioner for his lifetime. B. A retirement income of a modified monthly amount payable to the Firefighter for his lifetime only. C . If a Member retires prior to the time at which social security benefits are payable, he may elect to receive an increased retirement benefit until such time as social security benefits shall be assumed to com- mence and a reduced benefit thereafter in order to provide, to as great an extent as possible, a more level retirement allowance during the entire period of retirement. The amounts payable shall be as recom- mended by the actuaries for the system, based upon the social security law in effect at the time of the Member's retirement. This option may be combined with other optional forms of benefits. 2. The Firefighter, upon electing any option of this Section, will designate the joint pensioner or Beneficiary (or Beneficiaries) to receive the benefit, if any, payable under -21- the System in the event of Member's death, and will have the power to change such de�gn tion from time to time. Such designation will name a joint pensioner or one or more prim Beneficiaries where applicable. If a Firefighter has elected an option with a joint pensioner or Beneficiary and Member's retirement income benefits have commenced, Member may thereafter change his designated joint pensioner or Beneficiary, but only if the designated Beneficiary predeceases the Member or if the designated Beneficiary and the Member were married at time of Member's retirement and are divorced subsequent thereto; provided however, in no event may a Member change his or her designated Beneficiary more than twice. 3. The consent of a Firefighter's joint pensioner or Beneficiary to any such change shall not be required. The rights of all previously -designated Beneficiaries to receive benefits under the System shall thereupon cease. 4. Upon change of a Member's Beneficiary or joint pensioner in accordance with this section, the Board shall adjust the Member's monthly benefit by application of actuarial calculations to insure that the benefit paid is the Actuarial Equivalent of the Member's then - current benefit. Any such Member shall pay the actuarial recalculation expenses and shall make repayment of any overage of previously -paid pension benefits as a result of said recalculations. Each request for a change will be made in writing on a form prepared by the Board and on completion will be filed with the Board. In the event that no designated Beneficiary survives the Firefighter, such benefits as are payable in the event of the death of the Firefighter subsequent to his retirement shall be paid as provided in Section 11. 5. Retirement income payments shall be made under the option elected in accordance with the provisions of this Section and shall be subject to the following limitations: A. If a Firefighter dies prior to his normal retirement date or early retirement date, whichever first occurs, no retirement benefit will be -22- E • payable under the option to any person, but the benefits, if an will be determined under Section 7. B. If the designated Beneficiary (or Beneficiaries) or joint pensioner ' before the Firefighter's retirement under the System, the option electe will be canceled automatically and a retirement income of the normal form and amount will be payable to the Firefighter upon his retirement as if the election had not been made, unless a new election is made in accordance with the provisions of this Section or a new Beneficiary is designated by the Firefighter prior to his retirement and within ninety (90) days after the death of the Beneficiary. C. If both the retired Firefighter and the Beneficiary (or Beneficiaries) designated by Member die before the full payment has been effected under any option providing for payments for a period certain and life thereafter, made pursuant to the provisions of Subsection 1, the Board may, in its discretion, direct that the commuted value of the remaining payments be paid in a lump sum and in accordance with Section 11. D. If a Firefighter continues beyond his normal retirement date pursuant to the provisions of Section 6, Subsection 1, and dies prior to his actual retirement and while an option made pursuant to the provisions of this Section is in effect, monthly retirement income payments will be made, or a retirement benefit will be paid, under the option to a Beneficiary (or Beneficiaries) designated by the Firefighter in the amount or amounts computed as if the Firefighter had retired under the option on the date on which his death occurred. 6. A Firefighter may not change his retirement option after the date of cashing or depositing his first retirement check. -23- 7. Notwithstanding anything herein to the contrary, the Board in its discretion,/ may elect to make a lump sum payment to a Member or a Member's Beneficiary in the event that the total commuted value of the remaining monthly income payments to be paid do not exceed Three Thousand Five Hundred Dollars ($3,500.00). Any such payment made to any person pursuant to the power and discretion conferred upon the Board by the preceding sentence shall operate as a complete discharge of all obligations under the System with regard to such Member and shall not be subject to review by anyone, but shall be final, binding and conclusive on all persons. SECTION 11. BENEFICIARIES,. 1. Each Firefighter may, on a form provided for that purpose, signed and filed with the Board, designate a Beneficiary (or Beneficiaries) to receive the benefit, if any, which may be payable in the event of his death; and each designation may be revoked by such Firefighter by signing and filing with the Board a new designation -of -Beneficiary form. 2. If a deceased Firefighter fails to name a Beneficiary in the manner prescribed in Subsection 1, or if the Beneficiary (or Beneficiaries) named by a deceased Firefighter predeceases the Firefighter, the death benefit, if any, which may be payable under the System with respect to such deceased Firefighter, shall be paid to estate of the Firefighter. SECTION 12. CLAIMS PROCEDURES,. 1. Claims of Affected PersQnk. A. The Board of Trustees shall grant an initial hearing upon receipt of a written request ("Claim"), on matters which affect the substantial rights of any person ("Claimant"), including Members, active or retired, Beneficiaries, or any person affected by a decision of the Board of Trustees. B. The Board shall review the Claim at an initial hearing and enter an order within sixty (60) days from the date of receipt of the Claim and, -24- • in the case of disability claims, receipt by the Board bf �ar n medical release authorization in a form approved by the Board Ay and a completed set of interrogatories prepared by the Board Attorney" and provided to the Claimant. The Board may extend the time for entering the order at an initial hearing for an additional forty-five (45) days if it determines such time is necessary for full discovery and adequate review. The Board Attorney and the Claimant may stipulate to further extensions of time. C. It shall be the function of the Board Attorney, throughout the claims procedure, to assist the Board in the discovery and presentation of evidence in order to assure that the Board receives all relevant information prior to the Board's decision. D. The Claimant shall have the right to be represented by counsel at any or all times throughout the claims procedure. 2. Initial Hearing. A. At the initial hearing, the only evidence to be considered by the Board shall be documentary evidence contained in the pension file, including but not limited to, correspondence, medical records and reports of treating physicians and/or examining physicians and evidence received pursuant to paragraph B. B. Other than questions from the Trustees, there will be no taking of additional evidence at the initial hearing, except that the Claimant and/or his representative will be afforded fifteen (15) minutes to make a presentation, which shall be limited to comments and/or arguments as to the evidence or information already contained in the pension file, including the report of the examining physician. -25- C. Upon completion of the review of the Claim at the initial hearing, the Board shall enter an order setting forth its findings and cos Dns on the Claim. The written order shall be provided to the Claimant order shall include: (1) The specific findings and conclusions of the Board, including specific references to pertinent provisions of the System on which such conclusions are based; (2) A description of any additional material or information that the Board may deem necessary for the Claimant to perfect his Claim, together with the reasons why such material or informa- tion is necessary; and (3) An explanation of the right to a full hearing on the Claim and the time limit in which a full hearing must be requested in writing. D. The decision of the Board at the initial hearing shall not be final until after the time has expired to request a full hearing or, if a full hearing is requested, until the Board makes a decision at the conclusion of the full hearing. 3. Full Hearing. A. Any Claimant may request a full hearing on the issues presented to the Board at an initial hearing and upon which the Board has entered an order as provided in subsection 2.C. above. B. A full hearing must be requested by the Claimant within ninety (90) days of the receipt of the Board's order. The order will be deemed received three (3) days following the date it is mailed to Claimant at the address provided to the Board by Claimant. -26- P4 C. Upon receipt of the request for a full hearing and considering the amount of discovery which might be conducted, the Al>t shall establish a date for the full hearing and cause notice to be givenO (D Claimant. The full hearing shall be held within ninety (90) days fro 4j!�� the receipt of the request from the Member. The full hearing may be postponed, if necessary and with the consent of the Claimant, to permit full discovery of the facts. D. Copies of all documents to be offered into evidence at the full hearing, including depositions, and a complete witness list with names and addresses of witnesses expected to be called, shall be furnished to the Board by the Claimant and the Board Attorney at least twenty (20) days prior to the full hearing. Documents not furnished to the Board within the prescribed time limit may be excluded from evidence at the full hearing if a reasonable explanation is not provided for the delay in providing the documents. E. A Claimant or the Board Attorney may obtain discovery by deposition and/or interrogatories prior to the full hearing. Written notice of any depositions and/or interrogatories shall be given to the Board Attorney and the Claimant. F. The costs of any discovery, except discovery requested by the Board or the Board Attorney, the appearance of witnesses at the hearing, and the making of a verbatim record of the proceedings shall be the responsibility of the Claimant. G. The Claimant shall be responsible for the appearance of any witnesses at the hearing. The Board shall, however, have the power to subpoena and require the attendance of witnesses and the production of docu- -27- ments for discovery prior to and at the proceedings provided for herein. The Claimant may request in writing the issuance of sus by the Board. A reasonable fee may be charged for the issuanc/f y subpoenas not to exceed the fees set forth in Florida Statutes. H. Testimony at the full hearing may be submitted in the form of a deposition. Since it will give the Board more time for review and consideration, the Board prefers that testimony be submitted by deposition. Depositions timely submitted will be part of the record before the Board at the full hearing and will not be read in totality at the full hearing; provided however, that this does not preclude the Claimant or the Board Attorney from reading parts of depositions in an opening or closing statement. I. Irrelevant and unduly repetitious evidence shall be excluded. J. Any person who knowingly gives false testimony is guilty of a misde- meanor of the first degree, punishable as provided in Section 775.082 or 775.083, Florida Statutes. K. The file maintained by the Board, including but not limited to various medical reports therein, is part of the record before the Board at the full hearing. L. All proceedings of the Board shall be conducted in public. M. In cases concerning an application for pension benefits, including applications for disability retirement benefits, the burden of proof, except as provided by law, shall be on the Member seeking to show entitlement to such benefits. -28- N. In cases concerning termination of pension benefits cluding re- examination of Members receivingdisability retirem n� f'ben is the tY burden of proof shall be on the Board. O. Except as to those records which are exempted from the provisi ns Chapter 119, Florida Statutes, Florida's Public Record Law, recor maintained by the Board are open for inspection and/or copying during normal business hours at a reasonable cost for the copying. P. Should a Claimant requesting an initial or full hearing decide to appeal any decision made by the Board, with respect to any matter considered at such hearing, the Claimant requesting an initial or full hearing will need a record of the proceedings and may need to assure that a verbatim record of the proceeding is made. The Claimant requesting an initial or full hearing will be responsible for obtaining a court reporter or otherwise making a record of the proceedings before the Q. The decisions of the Board after the requested full hearing shall be final and binding. R. Within fifteen (15) days after making a decision at the full hearing, the Board shall enter a final order setting forth its findings and conclusions and a copy of the order shall be provided to the Claimant. S. Judicial review of decisions of the Board shall be sought by the filing of a timely petition for writ of certiorari with the Clerk of the Circuit Court, in the appropriate county. 4. ConducLg ,the Full Hearing. A. The Chairman shall preside over the hearing and shall rule on all evidentiary, procedural, and other legal questions that arise during the K2 hearing. The Chairman's rulings shall stand unless overruled by all other Trustees present. The Chairman shall open Abu hearing by explaining the procedures to be followed. , B. The Claimant shall have the right to be represented by coun or self -represented. The Board Attorney shall advise the Board. C. The Claimant shall be allowed to make an opening statement not to exceed ten (10) minutes. D. Testimony of witnesses shall be under oath or affirmation. Depositions or affidavits shall be admissible if agreed upon by the Claimant and the Board or the Board Attorney. E. The Chairman, any Trustee, the Board Attorney, the Claimant or the Claimant's counsel, upon recognition by the Chairman, may direct questions to any witness during the proceedings. F. Either the Claimant or the Board Attorney shall have the right to present evidence relevant to the issues, to cross examine witnesses, to impeach witnesses and to respond to the evidence presented. G. The Claimant shall be permitted a closing argument not to exceed fifteen (15) minutes. H. The Board shall deliberate and make a decision following closing argument and thereafter enter an order as provided herein. 5. Disability Claims - Additional Procedures. A. All applications for disability pensions shall be in writing. Forms for such applications may be provided by the Board. B. Upon receipt of the application for disability, the Board Attorney will provide the Claimant with a set of interrogatories or questions to be answered under oath and a medical release authorization. Both M112 • 400% documents will be completed by the Claimant and returned to theAar Attorney. C. Upon receipt of the properly completed interrogatories and medical release authorization, the Board Attorney will request medical records from all relevant treating physicians; personnel records from the employer, copies of relevant workman's compensation records, and copies of other records deemed to be relevant to the Claim. The Board shall pay from the Fund the cost of any medical examinations required by the Board and for copies of medical records. D. The Board Attorney will, if authorized by the Board, upon receipt of the medical records from the treating physicians, schedule an indepen- dent medical examination (IME) with an appropriate independent examining physician who will be asked to render an opinion about Claimant's physical condition as it relates to the claimed disability. E. Upon receipt of the IME from the examining physician, the Board Attorney will provide all records of treating physicians, relevant workman's compensation claims records, the independent medical evaluation, and all other relevant documents to the Board for inclusion in the pension file and the Board shall then schedule the initial hearing. SECTION 13. REPORTS TO DEPARnIENT OF INSURANCE. Each year and no later than March 15th, the Chairman of the Board shall file a report with the Department of Insurance containing the following: 1. Whether in fact the Municipality is in compliance with the provisions of Chapter 175, Florida Statutes. 2. A certified statement of accounting for the most recent fiscal year of the Municipality (or an independent audit by a certified public accountant if required by the -31- Department of Insurance) showing a detailed listing of assets and methods used to them and a statement of all income and disbursements during the year. Such incomn disbursements shall be reconciled with the assets at the beginning and end of the year. 3. A statistical exhibit showing the number of Firefighters on the force of the Municipality, the number included in the System, the number of Firefighters ineligible, classified according to the reasons for their being ineligible, and the number of disabled and retired Firefighters and their Beneficiaries receiving pension payments and the amounts of annual retirement income or pension payments being received by them. 4. A statement of the amount the Municipality has contributed to the Fund for the preceding plan year, and the amount the Municipality will contribute to the Fund for the current plan year. 5. If any benefits are insured with a commercial insurance company, the report shall include a statement of the relationship of the insured benefits to the benefits provided by this ordinance. This report shall also contain information about the insurer, basis of premium rates, mortality table, interest rates and method used in valuating retirement bene- fits. 6. The actuarial valuation of the System as provided for in Section 3. Such valuation shall be prepared by an enrolled actuary who is enrolled under Subtitle C of Title 3 of the Employee Retirement Income Security Act of 1974 and who is a member of the Society of Actuaries or the American Academy of Actuaries. SECTION 14. ROSTER OF RETIREES,. The Secretary of the Board shall keep a record of all persons enjoying a pension under the provisions of this ordinance in which it shall be noted the time when the pension is allowed and when the same shall cease to be paid. Additionally, the Secretary shall keep a record of all Firefighters employed by the Municipality in such a manner as to show the name, address, date of employment and date such employment is terminated. -32- • SECTION 15. BOARD ATTORNEY AND PROFESSIONALS. The Board may employ independent legal counsel at the System's ex�s ►for the purposes contained herein, together with such other professional, technical, or other 111 s as the Board deems necessary. SECTION 16. MAXI UM PENSION. 1. $bsic Limitation. Subject to the adjustments hereinafter set forth, the maximum amount of annual retirement income payable with respect to a Member under this System shall not exceed the lesser of: A. $90,000, or B. 100% of the Member's average aggregate compensation for the three (3) consecutive calendar years during which the Firefighter was an active Member and had his highest aggregate compensation. "Compen- sation" shall mean the Firefighter's total annual remuneration paid or accrued for personal services rendered to the City during the plan year as reported on the Firefighter's W-2. For purposes of applying the above limitation, benefits payable in any form other than a straight life annuity with no ancillary benefits shall be adjusted, as provided by Treasury Regulations, so that such benefits are the Actuarial Equivalent of a straight life annuity. For purposes of this Section, the following benefits shall not be taken into account: (1) Any ancillary benefit which is not directly related to retirement income benefits; (2) Any other benefit not required under §415(b)(2) of the Internal Revenue Code and Regulations thereunder to be taken into account for purposes of the limitation of §415(b)(1) of the Internal Revenue Code. -33- F • • 2. Particivation in Other Defined Benefit Svstems. The limitation of this Section with respect to any Member who Z ► time has been a member in any other defined benefit Plan (as defined in §4140) of thA Revenue Code) maintained by the City shall apply as if the total benefits payable un defined benefit plans in which the Member has been a member were payable from one Plan. 3. Adiustment$ in Limitations. In the event the Member's retirement benefits become payable before age 62, the $90,000 limitation prescribed by this Section shall be reduced in accordance with Regula- tions issued by the Secretary of the Treasury pursuant to the provisions of §415(b) of the Internal Revenue Code, but not less than $75,000. In the event the Member's retirement benefit becomes payable before age fifty- five (55), the $75,000 limitation shall be reduced from age fifty-five (55) in accordance with Regulations issued by the Secretary of the Treasury pursuant to the provisions of §415(b) of the Internal Revenue Code. A Member with at least fifteen (15) years of Credited Service may not have the benefit reduced below $50,000.00. If the Member's retirement benefit becomes payable after age sixty-five (65), for purposes of determining whether this benefit meets the limitation set forth in Subsection 1 herein, such benefit shall be adjusted so that it is actuarially equivalent to the benefit beginning at age 65. This adjustment shall be made using an assumed interest rate of five percent (5 %) and shall be made in accordance with regulations promulgated by the Secretary of the Treasury or his delegate. 4. Jess than Ten Years of .Service,. The maximum retirement benefits payable under this Section to any Member who has completed less than ten (10) years of Credited Service with the City shall be the amount determined under Subsection 1 of this Section multiplied by a fraction, the numerator -34- 0 • of which is the number of the Member's years of Credited Service and the d%ommator of which is ten (10). 5. $10.000 Limit. Notwithstanding the foregoing, the retirement benefit payable with respect a Member shall be deemed not to exceed the limitations set forth in this Section if the benefits payable, with respect to such Member under this System and under all other qualified defined benefit pension plans to which the City contributes, do not exceed $10,000 for the applicable plan year and for any prior plan year and the City has not at any time maintained a qualified defined contribution plan in which the Member participated. 6. Member in Defined Contribution Svstem,. In any case where a Member under this System is also a Member in a "Defined Contribution Plan" as defined in §414(i) of the Internal Revenue Code, maintained by the City, the sum of the "Defined Benefit Plan Fraction" and the "Defined Contribution Plan Fraction" (both as defined in §415(e) of the Internal Revenue Code) shall not, subject to the restrictions and exceptions contained in §2004 of the Act, exceed 1.0. 7. Reduction of benefitI. Reduction of benefits and/or contributions to all plans, where required, shall be accomplished by first reducing the Member's benefit under any defined benefit plans in which Member participated, such reduction to be made first with respect to the plan in which Member most recently accrued benefits and thereafter in such priority as shall be determined by the Board and the plan administrator of such other plans, and next, by reducing or allo- cating excess forfeitures for defined contribution plans in which the Member participated, such reduction to be made first with respect to the plan in which Member most recently accrued benefits and thereafter in such priority as shall be established by the Board and the plan administrator for such other plans provided, however, that necessary reductions may be -35- made in a different manner and priority pursuant to the agreement of the Trusteed the plan administrator of all other plans covering such Member. 8. Cpst-of-Living Aduustments. The limitations as stated in Subsections 1, 2, 3, and 6 herein shall be adjusted to the time payment of a benefit begins in accordance with any cost -of -living adjustments prescribed by the Secretary of the Treasury pursuant to §415(d) of the Internal Revenue Code. 9. Additional Limitapon on Pension Benefits,. Notwithstanding anything herein to the contrary: A. The normal retirement benefit or pension payable to a retiree who becomes a Member of the System and who has not previously participated in such System, on or after January 1, 1980, shall not exceed 100 percent of his Average Final Compensation. However, nothing contained in this Section shall apply to supplemental retirement benefits or to pension increases attributable to cost -of -living increases or adjustments. B. No Member of the System who is not now a Member of such System shall be allowed to receive a retirement benefit or pension which is in part or in whole based upon any service with respect to which the Member is already receiving, or will, receive in the future, a retirement benefit or pension from another retirement system or plan. This restriction does not apply to social security benefits or federal benefits under Chapter 67, Title 10, U.S. Code. SECTIQN 17. COMMENCEMENT OF BENEFITS. 1. Unless the Member otherwise elects, with such election being in writing and delivered to the Board and specifying the form of retirement income and date on which the K: retirement income is to commence, the payment benefits under the System to the Member shall commence not later than the 60th day after the close of the plan year in which the latest I� of the following events occur: A. The attainment by the Member of age 65; B. The loth anniversary of the date on which the Member commen participation in the System; or C. The termination of the Member's service with the City. 2. If the payment of a Member's retirement income cannot begin on the date required under Subsection 1 of this Section because the Board either cannot ascertain the amount of the Member's retirement income or cannot locate the Member after malcing reasonable efforts to do so, the payment of the Member's benefit shall begin not later than sixty (60) days after the date on which the amount can be ascertained or the Member is located, whichever is applicable. Any such payment shall be made retroactive to a date which is not earlier than the date on which the payment of the Member's benefit was scheduled to begin but which is not later than the date specified under Subsection 1 of this Section. SECTION 18. DISTRIBUTION OF BENEFITS. Notwithstanding any other provision of this System to the contrary, a form of retirement income payable from this System after the Effective Date of this ordinance, shall satisfy the following conditions: 1. If the retirement income is payable before the Member's death, A. It shall either be distributed or commence to the Member not later than April 1 of the calendar year following the later of the calendar year in which the Member attains age 70-112, or the calendar year in which Member retires, -57- 0 • B. The distribution shall commence not later than the calendar year defined above; and a), shall be paid over the life of thd'SM'e- rnber or over the lifetimes of the Member and Spouse, issue or dependen or b), shall be paid over the period extending not beyond the life e t ancy of the Member and Spouse, issue or dependent. Where a form of retirement income payment has commenced in accordance with the preceding paragraphs and the Member dies before his entire interest in the System has been distributed, the remaining portion of such interest in the System shall be distributed no less rapidly than under the form of distribution in effect at the time of the Member's death. 2. If the Member's death occurs before the distribution of his interest in the System has commenced, Member's entire interest in the System shall be distributed within five (5) years of Member's death, unless it is to be distributed in accordance with the following rules: A. The Member's remaining interest in the System is payable to his Spouse, issue or dependent; B. The remaining interest is to be distributed over the life of the Spouse, issue or dependent or over a period not extending beyond the life expectancy of the Spouse, issue or dependent; and C. Such distribution begins within one year of the Member's death unless the Member's Spouse, issue or dependent shall receive the remaining interest in which case the distribution need not begin before the date on which the Member would have attained age 70-1 /2 and if the Spouse, issue or dependent dies before the distribution to the Spouse, issue or dependent begins, this Section shall be applied as if the Spouse, issue or dependent were the Member. -38- SECTION 19. MISCELLANEOUS pROVLSIONS. 1. Interest of Members in System,. At no time prior to the satisfaction of all liabilities under the System with respect to Members and their Spouses or Beneficiaries, shall any part of the corpus or <1114 income of the Fund be used for or diverted to any purpose other than for their exclusive benefit. 2. Liouidation of Fund Assets. A. In the event that contributions of the City are permanently discontinued or in the event that it becomes necessary for the City to discontinue the System, the Board shall determine a proposed date of termination and liquidate the Fund, in accordance with the applicable requirements of the Act governing termination. The rights of affected Members, joint annuitants, Beneficiaries and surviving Spouses to benefits accrued to the date of any such termination or discontinuance to the extent then funded shall become fully vested and nonforfeitable and upon occur- rence of such event, the City's aliquot share of the assets then remain- ing in the Fund shall be allocated among the Members and their Benefi- ciaries and administered and distributed at such time or times as is determined by the Board. B. Any reserves which shall be released as a result of the application of the provisions of Section 20, Subsection 3E, shall be added to the portion of the Fund which is distributed as provided above to Members whose benefits are not restricted, provided that in the event that all of the benefits accrued to such Members are fully provided for, such released reserves (or any remaining portion thereof) shall be allocated to provide to the extent possible up to one hundred percent (100%) of -39- the benefits otherwise cancelled pursuant to Section 20, Subsection 3E, allocating such remaining funds in proportion to the value of the benefits so cancelled. C. The Board may in its discretion give effect to the provisions of the foregoing paragraphs A and B by the purchase of annuities, by continu- ing the Fund in existence and malting provisions thereunder for pension benefits, or by immediate distribution from the Fund. If the assets of the Fund applicable to any asset distribution priority category are insufficient to provide full benefits for all persons in such group, the benefits otherwise payable to such persons shall be reduced proportion- ately except as may otherwise be specified by regulations. If there is any balance remaining in the Fund after all obligations to Members, joint annuitants, Beneficiaries and surviving Spouses are met, such balance will revert to the City. The actuary shall calculate the allocation of the assets of the Fund in accordance with the asset distribution priority category, and certify his calculations to the Board. No liquidation of assets and payment of benefits (or provision there- fore) shall actually be made by the Board until after it is advised by the City in writing that applicable requirements, if any, of the Act gover- ning termination of "Firefighter Pension Benefit Plan" have been, or are being, complied with or that appropriate authorizations, waivers, exceptions or variances have been, or are being, obtained. 3. No amendment or ordinance shall be adopted by the City Council of the City of Okeechobee which shall have the effect of reducing the then vested accrued benefits of Members or a Member's Beneficiaries. MR • SECTION 20. REPEAL OR TERMINATION OF SYSTEM. 1. This ordinance establishing the System and Fund, and subsequent ordinc pertaining to said System and Fund, may be modified, terminated, or amended, in whol in part; provided that if this or any subsequent ordinance shall be amended or repealed in its application to any person benefiting hereunder, the amount of benefits which at the time of any such alteration, amendment, or repeal shall have accrued to the Member or Beneficiary shall not be affected thereby, except to the extent that the assets of the Fund may be deter- mined to be inadequate. 2. If this ordinance shall be repealed, or if contributions to the System are discontinued, the Board shall continue to administer the System in accordance with the provisions of this ordinance, for the sole benefit of the then Members, any Beneficiaries then receiving retirement allowances, and any future persons entitled to receive benefits under one of the options provided for in this ordinance who are designated by any of said Members. In the event of repeal, or if contributions to the System are discontinued, there shall be full vesting (100%) of benefits accrued to date of repeal and the assets of the System shall be allocated in an equitable manner to provide benefits on a proportionate basis to the persons so entitled in accordance with the provisions thereof. 3. The following shall be the order of priority for purposes of allocating the assets of the System as of the date of repeal of this ordinance, or if contributions to the System are discontinued with the date of such discontinuation being determined by the Board. A. Apportionment shall first be made in respect of each retired Firefighter receiving a retirement or disability benefit hereunder on such date, each person receiving a benefit on such date on account of a retired or disabled (but since deceased) Firefighter, and each Firefighter who has, by such date, become eligible for normal retirement but has not yet retired, an amount which is the Actuarial Equivalent of such benefit, -41- C� based upon the actuarial assumptions in use for purposes o _most recent actuarial valuation, provided that, if such asset value be le )Pan the aggregate of such amounts, such amounts shall be proportiona y reduced so that the aggregate of such reduced amounts will be equal to such asset value. B. If there be any asset value remaining after the apportionment under paragraph A, apportionment shall next be made in respect of each Firefighter in the service of the City on such date who has completed at least ten (10) years of Credited Service and who is not entitled to an apportionment under paragraph A, in the amount required to provide the Actuarial Equivalent, as described in A above, of the accrued normal retirement benefit, based on the Credited Service and average monthly earnings as of such date, and each vested former Member then entitled to a deferred benefit who has not, by such date, begun receiving benefit payments, in the amount required to provide said Actuarial Equivalent of the accrued normal retirement benefit, provided that, if such remaining asset value be less than the aggregate of the amounts apportioned hereunder, such latter amounts shall be propor- tionately reduced so that the aggregate of such reduced amounts will be equal to such remaining asset value. C. If there be any asset value after the apportionments under paragraphs A and B, apportionment shall be made in respect of each Firefighter in the service of the City on such date who is not entitled to an apportion- ment under paragraphs A and B in the amount equal to Member's Accumulated Contributions, provided that, if such remaining asset value be less than the aggregate of the amounts apportioned hereunder -42- • • such latter amount shall be proportionately reduc so that the aggregate of such reduced amounts will be equal to such maining asset value. D. If there be any asset value remaining after the apportionments uni,$�* paragraphs A, B, and C, apportionment shall lastly be made in respect of each Firefighter included in paragraph C above to the extent of the Actuarial Equivalent, as described in paragraph A above, of the accrued normal retirement benefit, less the amount apportioned in para- graph C, based on the Credited Service and average monthly earnings as of such date, provided that, if such remaining asset value be less than the aggregate of the amounts apportioned hereunder, such amounts shall be reduced so that the aggregate of such reduced amounts will be equal to such remaining asset value. E. In the event that there be asset value remaining after the full apportion- ment specified in paragraphs A, B, C, and D, such excess shall be returned to the City, less return of the State's contributions to the State, provided that, if the excess is less than the total contributions made by the City and the State to the date of termination such excess shall be divided proportionately to the total contributions made by the City and the State. The allocation of the Fund provided for in this Subsection may, as decided by the Board, be carried out through the purchase of insurance company contracts to provide the benefits determined in accordance with this Subsection. The Fund may be distributed in one sum to the persons entitled to said benefits or the distribution may be carried out in such other equitable manner as the Board may direct. The Trust may be continued in existence for purposes of subsequent distributions. -43- 1 • • If, at any time during the first ten (10) years after the efFecdVQkte of the ordinance originally establishing this System, the System shall be terminated or/ie ll current costs of the System shall not have been met, anything in the System to the con notwithstanding, City contributions which may be used for the benefit of any one of the twenty-five (25) highest paid Firefighters of the City on the effective date, whose anticipated annual retirement allowance provided by the City's contributions at Member's normal retire- ment date would exceed $1,500, shall not exceed the greater of either a) $20,000, or b), an amount computed by multiplying the smaller of $10,000 or twenty percent (20 %) of such Firefighter's average annual earnings during his last five (5) years of service by the number of years of service since the effective date. In the event that it shall hereafter be determined by statute, court decision, ruling by the Commissioner of Internal Revenue, or otherwise, that the provisions of this paragraph are not then necessary to qualify the System under the Internal Revenue Code, this paragraph shall be ineffective without the necessity of further amendment of this ordinance. 4. After all the vested and accrued benefits provided hereunder have been paid and after all other liabilities have been satisfied, then and only then shall any remaining funds revert to the general fund of the City. SECTION 21. EXEMPTION FROM EXECUTION. NON-ASSICYNABELIW. Except as otherwise provided by law, the pensions, annuities, or any other benefits accrued or accruing to any person under the provisions of this ordinance and the Accumulated Contributions and the cash securities in the Fund created under this ordinance are hereby exempted from any state, county or municipal tax and shall not be subject to execution, attachment, garnishment or any legal process whatsoever and shall be unassignable. 11 0 SECTION 22. PENSION VALIDITY. / The Board shall have the power to examine into the facts upon which any pensio shall heretofore have been granted under any prior or existing law, or shall hereafter be granted or obtained erroneously, fraudulently or illegally for any reason. Said Board is empowered to purge the pension rolls of any person heretofore granted a pension under prior or existing law or heretofore granted under this ordinance if the same is found to be erroneous, fraudulent or illegal for any reason; and to reclassify any person who has heretofore under any prior or existing law been or who shall hereafter under this ordinance be erroneously, improperly or illegally classified. SECTION 23. FORFEITURE OF PENSION. 1. Any Firefighter who is convicted of the following offenses committed prior to retirement, or whose employment is terminated by reason of his admitted commission, aid or abetment of the following specified offenses, shall forfeit all rights and benefits under this System, except for the return of his Accumulated Contributions as of the date of termination. Specified offenses are as follows: A. The committing, aiding or abetting of an embezzlement of public funds; B. The committing, aiding or abetting of any theft by a public officer or employee from employer; C. Bribery in connection with the employment of a public officer or employee; D. Any felony specified in Chapter 838, Florida Statutes. E. The committing of an impeachable offense. F. The committing of any felony by a public officer or employee who willfully and with intent to defraud the public or the public agency, for which he acts or in which he is employed, of the right to receive the faithful performance of his duty as a public officer or employee, -45- F A**** realizes or obtains or attempts to obtain a profit, gain, or advA for himself or for some other person through the use or attempted of the power, rights, privileges, duties or position of his public office or employment position. 2. Conviction shall be defined as an adjudication of guilt by a court of competent jurisdiction; a plea of guilty or a nolo contendere; a jury verdict of guilty when adjudication of guilt is withheld and the accused is placed on probation; or a conviction by the Senate of an impeachable offense. 3. Court shall be defined as any state or federal court of competent jurisdiction which is exercising its jurisdiction to consider a proceeding involving the alleged commission of a specified offense. Prior to forfeiture, the board shall hold a hearing on which notice shall be given to the Member whose benefits are being considered for forfeiture. Said Member shall be afforded the right to have an attorney present. No formal rules of evidence shall apply, but the Member shall be afforded a full opportunity to present his case against forfeiture. 4. Any Member who has received benefits from the System in excess of his Accumulated Contributions after Member's rights were forfeited shall be required to pay back to the Fund the amount of the benefits received in excess of his Accumulated Contributions. The Board may implement all legal action necessary to recover such funds. SECTION 24. INDEMNVICATION. 1. To the extent not covered by insurance contracts in force from time to time, the City shall indemnify and hold harmless Members of the Board from all personal liability for damages and costs, including court costs and attorneys' fees, arising out of claims, suits, litigation, or threat of same, herein referred to as "claims", against these individuals because of acts or circumstances connected with or arising out of their official duty as Members of the Board. The City reserves the right, in its sole discretion, to settle or not settle the claim -46- t , at any time, and to appeal or to not appeal from any adverse judgment or ruling, an/in either event will indemnify and hold harmless any Members of the Board from the judgment, < 4$"** execution, or levy thereon. 2. This Section shall not be construed so as to relieve any insurance company or other entity liable to defend the claim or liable for payment of the judgment or claim, from any liability, nor does this Section waive any provision of law affording the City immunity from any suit in whole or part, or waive any other substantive or procedural rights the City may have. 3. This Section shall not apply nor shall the City be responsible in any manner to defend or pay for claims arising out of acts or omissions of Members of the Board which constitute felonies or gross malfeasance or gross misfeasance in office. SECTION 25. TRANSFERS WPITIIN THE C=. If a member of any of the City's three retirement systems transfers to either of the other two systems, he must choose one of the following procedures with regard to Credited Service accrued to date of transfer. 1. The Member may take a refund of his Accumulated Contributions, in which event no pension benefit shall be payable based on Credited Service attributable to the period covered. 2. The member may leave his Accumulated Contributions in the fund, in which event his Credited Service with both systems shall be combined for purposes of determining eligibility for benefits and for vesting. When the member is eligible to receive a benefit, he shall receive benefits from both systems, which shall consist of accrued benefits under each system based on the provisions of the respective system and the earnings and Credited Service under that system. -47- ' • SECTION 26. MILITARY SERVICE PRIOR TO EMPLOYMENT. The years or fractional parts of years that a Firefighter serves or has served on active duty in the active military service of the Armed Forces of the United States or the United States Merchant Marine, voluntarily or involuntarily, honorably or under honorable conditions, prior to first and initial employment with the City Fire Department shall be added to his years of Credited Service provided that: 1. The Firefighter contributes to the Fund the sum that he would have contributed had he been a member of the System for the years or fractional parts of years for which he is requesting credit plus amounts actuarially determined such that the crediting of service does not result in any cost to the Fund plus payment of costs for all professional services rendered to the Board in connection with the purchase of years of Credited Service. 2. The request shall be made only once and made by the Firefighter on or before twelve (12) months from the Effective Date of this ordinance or six (6) months from the date of his employment with the City Fire Department, whichever is later. ' 3. Payment by the Firefighter of the required amount shall be made within six (6) months of his request for credit and shall be made in one lump sum payment upon receipt of which Credited Service shall be given. 4. The maximum credit under this Section shall be four (4) years. 5. Credited Service purchased pursuant to this section shall not count toward vesting. SECTION 27. DERECT TRANSFERS OF ELIGIBLE ROLLOVER DISTRIBUTION,j. 1. General. This Section applies to distributions made on or after January 1, 1993. Notwithstanding any provision of the plan to the contrary that would otherwise limit a distributee's election under this Section, a distributee may elect, at the time and in the -48- manner prescribed by the Board, to have any portion of an eligible rollover distribution p directly to an eligible retirement plan specified by the distributee in a direct rollover. 4J! 2. Definitions. A. Eligible Rollover Distribution: 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 expectan- cies) 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 Code; and the portion of any distribution that is not includible in gross income. B. Eligible Retirement Plan: An eligible retirement plan is an individual retirement account described in section 408(a) of the Code, an individual retirement annuity described in section 408(b) of the Code, an annuity plan described in section 403(a) of the Code, or a qualified trust described in section 401(a) of the Code, that accepts the distributee's eligible rollover distribution. However, in the case of an eligible rollover distribution to the surviving Spouse, an eligible retirement plan is an individual retirement account or individual retirement annuity. C. Distributee: A distributee includes an employee or former employee. In addition, the employee's or former employee's surviving Spouse is a distributee with regard to the interest of the Spouse. -49- dnan-W ca D. Direct Rollover: A direct rollover is a payment by the plan to /IV* eligible retirement plan specified by the distributee. -50- ORDINANCE N0. 657 4. AN ORDINANCE OF THE CITY OF OKEECHOBEE AMENDING AND RESTATING THE CITY OF OKEECHOBEE RETIREMENT SYSTEM FOR POLICE OFFICERS AS ADOPTED BY ORDINANCE 421 AND AS SUBSEQUENTLY AMENDED; PROVIDING FOR DEFINITIONS; PROVIDING FOR MEMBERSHIP; PROVIDING FOR A BOARD OF TRUSTEES; PROVIDING FOR FINANCES AND FUND MANAGEMENT; PROVIDING FOR CONTRIBUTIONS; PROVIDING FOR BENEFIT AMOUNTS AND ELIGIBILITY; PROVIDING FOR DEATH BENEFITS; PROVIDING FOR DISABILITY BENEFITS; PROVIDING FOR VESTING OF BENEFITS; PROVIDING OPTIONAL FORMS OF BENEFITS; PROVIDING FOR BENEFICIARIES; PROVIDING A CLAIMS PROCEDURE; PROVIDING FOR REPORTS TO THE DEPARTMENT OF INSURANCE; PROVIDING FOR A ROSTER OF RETIREES; PROVIDING FOR A BOARD ATTORNEY AND PROFESSIONALS; PROVIDING FOR A MAXIMUM PENSION LIMITATION; PROVIDING FOR COMMENCEMENT AND DISTRIBUTION OF BENEFITS; PROVIDINGNUSCELLANEOUSPROVISIONS; PROVIDING FOR REPEAL OR TERMINATION OF THE SYSTEM; PROVIDING FOR EXEMPTION FROM EXECUTION AND NON -ASSIGNABILITY; PROVIDING FOR PENSION VALIDITY; PROVIDING FOR FORFEITURE OF PENSION UNDER CERTAIN CIRCUMSTANCES; PROVIDING FOR INDEMNIFICATION; PROVIDING FOR TRANSFERS WITHIN THE CITY; PROVIDING FOR CREDIT FOR MILITARY SERVICE PRIOR TO EMPLOYMENT; PROVIDING FOR DIRECT TRANSFERS OF ELIGIBLE ROLLOVER DISTRIBUTIONS; PROVIDING FOR CODIFICATION; PROVIDING FOR SEVERABILITY OF PROVISIONS; REPEALING ALL ORDINANCES IN CONFLICT HEREWITH AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Okeechobee Police Officers are presently provided pension and certain other benefits under Ordinances of the City of Okeechobee and; WHEREAS, the City Council desires to clarify and restate the provisions of the Police Officers' Retirement Plan to consolidate all prior ordinances and Code provisions and to incorporate Federal law and the applicable provisions of Chapter 185, Florida Statutes; NOW, THEREFORE, y ; • U BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF OKEECH� FLORIDA: <, SECTION 1: That the City of Okeechobee Retirement System for Police Officers as adopted by Ordinance 421 and as subsequently amended, be and the same is amended and restated as set forth in the document designated CITY OF OKEECHOBEE MUNICIPAL POLICE OFFICERS' PENSION TRUST FUND, attached hereto and made a part hereof. SECTION 2: Specific authority is hereby granted to codify and incorporate this Ordinance in the existing Code of Ordinances of the City of Okeechobee. .SECTION 3: All Ordinances or parts of Ordinances in conflict herewith be and the same are hereby repealed. SECTION 4: If any section, subsection, sentence, clause, phrase of this ordinance, or the particular application thereof shall be held invalid by any court, administrative agency, or other body with appropriate jurisdiction, the remaining section, subsection, sentences, clauses, or phrases under application shall not be affected thereby. SECTION 5,: That this Ordinance shall become effective upon adoption. Introduced on first reading and set for public hearing this day of , 1993. Passed on second and final reading this &P4 , 1993. MAYOR ATTEST: a R I W � CITY CLERK Y q 0 • CITY OF OKEECHOBEE MUNICIPAL POLICE OFFICERS' PENSION TRUST FUND, TABLE OF CONTENTS SECTION PACE NUMBER DEFINITIONS 1 MEMBERSHIP 4 BOARD OF TRUSTEES 4 FINANCES AND FUND MANAGEMENT 7 CONTRIBUTIONS 12 BENEFIT AMOUNTS AND ELIGIBILITY 14 DEATH BENEFITS 15 DISABILITY 16 VESTING 20 OPTIONAL FORMS OF BENEFITS 21 BENEFICIARIES 24 CLAIMS PROCEDURES 25 REPORTS TO DEPARTMENT OF INSURANCE 32 ROSTER OF RETIREES 33 BOARD ATTORNEY AND PROFESSIONALS 33 MAXIMUM PENSION 33 COMMENCEMENT OF BENEFITS 37 DISTRIBUTIONS OF BENEFITS 38 MISCELLANEOUS PROVISIONS 39 REPEAL OR TERMINATION OF SYSTEM 41 EXEMPTION FROM EXECUTION, NON -ASSIGNABILITY 45 PENSION VALIDITY 45 FORFEITURE OF PENSION 45 INDEMNIFICATION j TRANSFERS WITHIN THE CITY MILITARY SERVICE PRIOR TO EMPLOYMENT 48 DIRECT TRANSFERS OF ELIGIBLE ROLLOVER DISTRIBUTIONS 49 0 CITY OF OKEECHOBEE MUNICIPAL POLICE OFFICERS' PENSION TRUST FUND SECTION 1. DEFINMONS. 1. As used herein, unless otherwise defined or required by the context, the following words and phrases shall have the meaning indicated: Accumulated Contributions means a Member's own contributions with interest at the rate of five and one -quarter percent (5-1 /4 %) per annum through September 30, 1993 and four and one -quarter percent (4.25 %) per annum thereafter. For those Members who purchase Credited Service at no cost to the System, pursuant to Sections 25 and 26, only that portion of any payment representing the sum that he would have contributed had he been a Member of the System for the years for which he is requesting credit, shall be included in Accumulated Contributions. A&1 means the Employee Retirement Income Security Act of 1974 (P.L. 93- 406) as amended by the Retirement Equity Act of 1984 (P.L. 98-397) and any regulations issued thereunder by the Department of Labor and the Internal Revenue Service, as that Statute and these regulations shall be amended. Actuarial Eauivalent means that any benefit payable under the terms of this System in a form other than the normal form of benefit shall have the same actuarial present value on the date payment commences as the normal form of benefit. For purposes of establishing the actuarial present value of any form of payment other than a lump sum distribution, all future payments shall be discounted for interest and mortality by using 7 % interest and the 1971 Group Annuity Mortality Table for Males, with ages set ahead five years in the case of disability retirees. Averaee Final Comnensation, means one -twelfth (1/12) of the average Salary of the five (5) best years of the last ten (10) years of Credited Service prior to retirement, termination, or death, or the career average as a full-time Police Officer, whichever is greater. A year shall be twelve (12) consecutive months. -1- r 0 *4*** Beneficiary, means the person or persons entitled to receive benefits hereun at the death of a Member who has or have been designated in writing by the Member and filed with the Board. If no such designation is in effect, or if no person so designated is living, at the time of death of the Member, the Beneficiary shall be the estate of the Member. Board means the Board of Trustees, which shall administer and manage the System herein provided and serve as trustees of the Fund. time. i + means City of Okeechobee, Florida. C_Q& means the Internal Revenue Code of 1986, as amended from time to f.redited Servicemeans the total number of years and fractional parts of years of service as a Police Officer with Member contributions to the System, omitting intervening years or fractional parts of years when such Police Officer may not be employed by the City. A Police Officer may voluntarily leave his contribution in the Fund for a period of five (5) years after leaving the employ of the Police Department pending the possibility of being rehired, and remaining employed for a period of not less than three (3) years, without losing credit for the time of active participation as a Police Officer. If the Police Officer does not remain employed for a period of three (3) years upon reemployment within five (5) years, then the Accumulated Contributions will be returned upon the written request of the Member. The years or fractional parts of years that a Police Officer serves in the military service of the Armed Forces of the United States or the United States Merchant Marine, voluntarily or involuntarily, after separation from employment as a Police Officer with the City, shall be added to his years of Credited Service, for all purposes, including vesting, provided that (except as otherwise prohibited by law, in which case the minimum standards for compliance shall apply); -2- F I L 0 0 *411*1** A. The Police Officer must return to his employment as a Police Off4 4j�� with the City within one (1) year from the date of his military discharge. B. The Police Officer deposits into the Fund the same sum that Member would have contributed if he had remained a Police Officer, plus an amount of interest that substantially approximates the amount earned by the Fund from the date of return to employment to the date of deposit. Effective Date, means the date on which this ordinance becomes effective. Fund means the trust fund established herein as part of the System. Member means an actively employed Police Officer who fulfills the prescribed participation requirements. li &e Officer means an actively employed full-time person, employed by the City, including his initial probationary employment period, who is certified as a Police Officer as a condition of employment in accordance with the provisions of §943.14, Florida Statutes, who is vested with authority to bear arms and make arrests, and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, traffic, or highway laws of the State of Florida. Salary means the total monthly compensation reported on the Police Officer's W-2 form plus all tax deferred and tax exempt items of income. Spouse means the lawful wife or husband of a Member at the time of pre - retirement death or retirement. System means the City of Okeechobee Municipal Police Officers' Pension Trust Fund as contained herein and all amendments thereto. 2. M A5puline Gender.. The masculine gender, where used herein, unless the context specifically requires otherwise, shall include both the feminine and masculine genders. -3- • 0 SECTION 2. MEMBERSHIP. 1. Conditions of Elieibilitv. A. All Police Officers as of the Effective Date, and all future new Police Officers, shall become Members of this System as a condition of employment. B. All future new Police Officers shall be required to complete a medical examination as prescribed by the City. Based upon medical evidence of a pre-existing adverse health condition, resulting from the prescribed examination or other records or medical history, the Board may declare any Member ineligible for disability benefits hereunder, as related to such pre-existing condition. Each declaration shall be reflected in the minutes of the meeting of the Board at which such declaration was formally adopted or established by the Board. 2. Membership. Each Police Officer shall complete a form prescribed by the Board providing the following information: A. Acceptance of the terms and conditions of the System, and, B. Designation of a Beneficiary or Beneficiaries, and, C. A sworn statement as to prior medical and psychological history. 3. Chanee in Design4tion of Beneficiarv.. A Member may from time to time change his designated Beneficiary by written notice to the Board upon forms provided by the Board. Upon such change, the rights of all previously designated Beneficiaries to receive any benefits under the System shall cease. SECTION 3. BOARD OF TRUSTEE..S. 1. The sole and exclusive administration of and responsibility for the proper operation of the System and for malting effective the provisions of this ordinance are hereby -4- A**** vested in a Board of Trustees. The Board of Trustees is hereby designated as d4 administrator. The Board of Trustees shall consist of five (5) Trustees, two of whom, unless otherwise prohibited by law, shall be legal residents of the municipality, who shall be appointed by the Okeechobee City Council, and two of whom shall be full-time Police Officer Members of the System, who shall be elected by a majority of the Police Officers who are Members of the System. The fifth Trustee shall be chosen for a two (2) year term by a majority of the previous four Trustees as provided for herein, and such person's name shall be submitted to the Okeechobee City Council. Upon receipt of the fifth person's name, the Okeechobee City Council shall, as a ministerial duty, appoint such person to the Board of Trustees as its fifth Trustee. The fifth Trustee shall have the same rights as each of the other four Trustees appointed or elected as herein provided and shall serve a two (2) year term unless the office is sooner vacated and may succeed himself in office. Each resident Trustee shall serve as Trustee for a period of two (2) years, unless sooner replaced by the Okeechobee City Council at whose pleasure the Trustee shall serve, and may succeed himself as a Trustee. Each Police Officer Trustee shall serve as Trustee for a period of two (2) years, unless he sooner leaves the employment of the City as a Police Officer or otherwise vacates his office as Trustee, whereupon a successor shall be chosen in the same manner as the departing Trustee. Each Police Officer may succeed himself in office. The Board of Trustees shall meet at least quarterly each year. The Board of Trustees shall be a legal entity with, in addition to other powers and responsibilities contained herein, the power to bring and defend lawsuits of every kind, nature, and description. 2. The Trustees shall, by a majority vote, elect a Chairman and a Secretary. The Secretary of the Board shall keep a complete minute book of the actions, proceedings, or hearings of the Board. The Trustees shall not receive any compensation as such, but may receive expenses and per diem as provided by law. -5- I 3. Each Trustee shall be entitled to one vote on the Board. Three (3) affirmativ votes shall be necessary for any decision by the Trustees at any meeting of the Board. A Trustee shall have the right to abstain from voting as the result of a conflict of interest provided that Trustee complies with the provisions of Section 112.3143, Florida Statutes. 4. The Board shall engage such actuarial, accounting, legal, and other services as shall be required to transact the business of the System. The compensation of all persons engaged by the Board and all other expenses of the Board necessary for the operation of the System shall be paid from the Fund at such rates and in such amounts as the Board shall agree. 5. The duties and responsibilities of the Board shall include, but not necessarily be limited to, the following: A. To construe the provisions of the System and determine all questions arising thereunder. B. To determine all questions relating to eligibility and membership. C. To determine and certify the amount of all retirement allowances or other benefits hereunder. D. To establish uniform rules and procedures to be followed for administrative purposes, benefit applications and all matters required to administer the System. E. To distribute to Members, at regular intervals, information concerning the System. F. To receive and process all applications for membership and benefits. G. To authorize all payments whatsoever from the Fund, and to notify the disbursing agent, in writing, of approved benefit payments and other expenditures arising through operation of the System and Fund. U. 0 0 H. To have performed actuarial studies and at least biennial vale ti s, and make recommendations regarding any and all changes in the provisions of the System. I. To perform such other duties as are specified in this ordinance. SECTION 4. FINANCES AND FUND MANAGEMENT. Establishment and QZration of Fund. 1. As part of the System, there is hereby established the Fund, into which shall be deposited all of the contributions and assets whatsoever attributable to the System, including the assets of the prior Municipal Police Officers' Pension Trust Fund. 2. The actual custody and supervision of the Fund (and assets thereof) shall be vested in the Board. Payment of benefits and disbursements from the Fund shall be made by the disbursing agent but only upon written authorization from the Board. 3. All funds and securities of the Municipal Police Officers' Pension Trust Fund may be deposited by the Board with the Finance Director of the municipality, acting in a ministerial capacity only, who shall be liable in the same manner and to the same extent as he is liable for the safekeeping of funds for the municipality. However, any funds and securities so deposited with the Finance Director of the municipality shall be kept in a separate fund by the Finance Director or clearly identified as such funds and securities of the Municipal Police Officers' Pension Trust Fund. In lieu thereof, the Board shall deposit the funds and securities of the Municipal Police Officers' Pension Trust Fund in a qualified public depository as defined in §280.02, Florida Statutes, which depository with regard to such funds and securities shall conform to and be bound by all of the provisions of Chapter 280, Florida Statutes. In order to fulfill its investment responsibilities as set forth herein, the Board may retain the services of a custodian bank, an investment advisor registered under the Investment Advisors Act of 1940 or otherwise exempt from such required registration, an msurance company, or a combination of these, for the purposes of investment decisions -7- A** and management. Such investment manager shall have discretion, subject to any klines,. as prescribed by the Board, in the investment of all Fund assets. 4. All funds and securities of the System may be commingled in the Fund, provided that accurate records are maintained at all times reflecting the financial composition of the Fund, including accurate current accounts and entries as regards the following: A. Current amounts of Accumulated Contributions of Members on both an individual and aggregate account basis, and B. Receipts and disbursements, and C. Benefit payments, and D. Current amounts clearly reflecting all monies, funds and assets whatsoever attributable to contributions and deposits from the City, and E. All interest, dividends and gains (or losses) whatsoever, and F. Such other entries as may be properly required so as to reflect a clear and complete financial report of the Fund. 5. An independent audit shall be performed annually by a certified public accountant for the most recent fiscal year of the City showing a detailed listing of assets and a statement of all income and disbursements during the year. Such income and disbursements must be reconciled with the assets at the beginning and end of the year. Such report shall reflect a complete evaluation of assets on both a cost and market basis, as well as other items normally included in a certified audit. 6. The Board shall have the following investment powers and authority: A. The Board shall be vested with full legal title to said Fund, subject, however, and in any event to the authority and power of the Okeechobee City Council to amend or terminate this Fund, provided that no amendment or Fund termination shall ever result in the use of any assets of this Fund except for the payment of regular expenses and -8- • *k***4* benefits under this System. All contributions from time to tim/" into the Fund, and the income thereof, without distinction between prin- cipal and income, shall be held and administered by the Board or its agent in the Fund and the Board shall not be required to segregate or invest separately any portion of the Fund. B. All monies paid into or held in the Fund shall be invested and reinvested by the Board and the investment of all or any part of such funds shall be limited to: (1) Annuity and life insurance contracts of life insurance companies in amounts sufficient to provide, in whole or in part, the benefits to which all of the Members in the Fund shall be entitled under the provisions of this System and pay the initial and subsequent premium thereon. (2) Time or savings accounts of a national bank, a state bank or a savings/building and loan association insured by the Federal Deposit Insurance Corporation. (3) Obligations of the United States or obligations guaranteed as to principal and interest by the government of the United States. (4) Bonds issued by the State of Israel. (5) Bonds, stocks, commingled funds administered by National or State Banks or evidences of indebtedness issued or guaranteed by a corporation organized under the laws of the United States, any state or organized territory of the United States, or the District of Columbia, provided that the corporation is traded on a nationally recognized exchange and holds a rating in one of the three highest classifications by a major rating service, and 0 if such investments are made in a pooled fund administered by a state or national bank, then the rating of each issue in the pooled fund shall hold a rating within the top three (3) rating classifications of a major rating service and no foreign investments shall be permitted in the pooled fund. (6) Real estate. C. The Board shall not invest more than five percent (5 %) of its assets in the common stock, capital stock or convertible securities of any one issuing company, nor shall the aggregate investment in any one issuing company exceed five percent (5 %) of the outstanding capital stock of that company; nor shall the aggregate of its investments in common stock, capital stock and convertible securities at cost exceed sixty percent (60 %) of the assets of the Fund. D. The Board may retain in cash and keep unproductive of income such amount of the Fund as it may deem advisable, having regard for the cash requirements of the System. E. No person or entity shall be liable for the making, retention or sale of any investment or reinvestment made as herein provided, nor for any loss or diminishment of the Fund, except that due to his or its own negligence, willful misconduct or lack of good faith. F. The Board may cause any investment in securities held by it to be registered in or transferred into its name as Trustee or into the name of such nominee as it may direct, or it may retain them unregistered and in form permitting transferability, but the books and records shall at all times show that all investments are part of the Fund. -10- • i G. The Board is empowered, but is not required, to vote upon any bonds, or securities of any corporation, association, or trust and to give H I. general or specific proxies or powers of attorney with or without power of substitution; to participate in mergers, reorganizations, recapitaliza- tions, consolidations, and similar transactions with respect to such securities; to deposit such stock or other securities in any voting trust or any protective or like committee with the Trustees or with depositories designated thereby; to amortize or fail to amortize any part or all of the premium or discount resulting from the acquisition or disposition of assets; and generally to exercise any of the powers of an owner with respect to stocks, bonds, or other investments comprising the Fund which it may deem to be to the best interest of the Fund to exercise. The Board shall not be required to make any inventory or appraisal or report to any court, nor to secure any order of court for the exercise of any power contained herein. Where any action which the Board is required to take or any duty or function which it is required to perform either under the terms herein or under the general law applicable to it as Trustee under this ordinance, can reasonably be taken or performed only after receipt by it from a Member, the City, or any other entity, of specific informa- tion, certification, direction or instructions, the Board shall be free of liability in failing to take such action or perform such duty or function until such information, certification, direction or instruction has been received by it. -11- J. Any overpayments or underpayments from the Fund to a Member o Beneficiary caused by errors of computation shall be adjusted with interest at a rate per annum approved by the Board. Over payment shall be charged against payments next succeeding the correction. Underpayments shall be made up from the Fund. K. The Board shall sustain no liability whatsoever for the sufficiency of the Fund to meet the payments and benefits herein provided for. L. In any application to or proceeding or action in the courts, only the Board shall be a necessary party, and no Member or other person having an interest in the Fund shall be entitled to any notice or service of process. Any judgment entered in such a proceeding or action shall be conclusive upon all persons. M. Any of the foregoing powers and functions reposed in the Board may be performed or carried out by the Board through duly authorized agents, provided that the Board at all times maintains continuous supervision over the acts of any such agent; provided further, that legal title to said Fund shall always remain in the Board. N. The Board shall not invest more than twenty percent (20 %) at cost of its assets in real property or real estate and there shall be no investment in a limited partnership or trust. SECTION 5. CONTRIBUTIONS. 1. Member Contributions. A. Amount. Members of the System shall be required to make regular contributions to the Fund in the amount of five percent (5 %) of his Salary. Member contributions withheld by the City on behalf of the Member shall be deposited with the Board at least monthly. The -12- / 4. contributions made by each Member to the Fund shall be designated as employer contributions pursuant to §414(h) of the Internal Revenue Code of 1986. Such designation is contingent upon the contributions being excluded from the Members' gross income for Federal Income Tax purposes. For all other purposes of the System, such contributions shall be considered to be Member contributions. B. Method,. Such contributions shall be made by payroll deduction. 2. ,Mate Contributions. Any monies received or receivable by reason of laws of the State of Florida, for the express purpose of funding and paying for retirement benefits for Police Officers of the City shall be deposited in the Fund comprising part of this System immediately and under no circumstances more than five (5) days after receipt by the City. 3. City Contributions. So long as this System is in effect, the City shall make quarterly contributions to the Fund in an amount equal to the difference in each year, between the total aggregate Member contributions for the year, plus state contributions for such year, and the total cost for the year, as shown by the most recent actuarial valuation of the System. The total cost for any year shall be defined as the total normal cost plus the additional amount sufficient to amortize the unfunded past service liability over a forty (40) year period, commencing with the fiscal year in which the Effective Date of this System occurs. 4. Other. Private donations, gifts and contributions may be deposited to the Fund, but such deposits must be accounted for separately and kept on a segregated bookkeeping basis. Funds arising from these sources may be used only for additional benefits for Members, as determined by the Board, and may not be used to reduce what would have otherwise been required City contributions. -13- • • SECTION 6. BENEFIT AMOUNTS AND ELIGIBILITY. 1. Normal Retirement Date,. A Member's normal retirement date shall be the first day of the month coincident with, or the next following age sixty (60) and the completion of ten (10) years of Credited Service, or upon the completion of twenty-five (25) years of Credited Service regardless of age. A Member may retire on his normal retirement date or on the first day of any month thereafter, and each Member shall become 100 % vested in his accrued benefit on the Member's normal retirement date. Normal retirement under the System is retirement from employment with the City on or after the normal retirement date. 2. Normal Retirement Benefit. A Member retiring hereunder on or after his normal retirement date shall receive a monthly benefit which shall commence on his retirement date and be continued thereafter during Member's lifetime, ceasing upon death, but with one hundred twenty (120) monthly payments guaranteed in any event. The monthly retirement benefit shall equal three percent (3 %) of Average Final Compensation, for each year of Credited Service. 3. Early Retirement Date. A Member may retire on his early retirement date which shall be the first day of any month coincident with or next following the attainment of age fifty-five (55) and the completion of ten (10) years of Credited Service. Early retirement under the System is retirement from employment with the City on or after the early retirement date and prior to the normal retirement date. 4. Early Retirement Benefit. A Member retiring hereunder on his early retirement date may receive either a deferred or an immediate monthly retirement benefit payable in the same form as for normal retirement as follows: -14- A. A deferred monthly retirement benefit which shall commence on what would have been his normal retirement date had he continued employment as a Police Officer and shall be continued on the first day of each month thereafter. The amount of each such deferred monthly retirement benefit shall be determined in the same manner as for retirement on his normal retirement date except that Credited Service and Average Final Compensation shall be determined as of his early retirement date; or B. An immediate monthly retirement benefit which shall commence on his early retirement date and shall be continued on the first day of each month thereafter. The benefit payable shall be as determined in paragraph A above, which is reduced by one -fifteenth (1/15th) for each of the first five (5) years and one -thirtieth (1/30th) for each of the next five (5) years by which the commencement of benefits precedes the date which would have been the Member's normal retirement date had he continued employment as a Police Officer. SECTION 7. DEATH BENEFITS. 1. Prior to Vesting or Elieibilitv for Retirement. The Beneficiary of a deceased Member who was not receiving monthly benefit payments, or who was not yet vested or eligible for retirement shall receive a refund of one hundred percent (100%) of the Member's Accumulated Contributions. 2. Deceased Members Vested or Elieible for Retirement. Any Member, whether or not still actively employed, who has a right to a vested accrued benefit, shall be eligible for a death benefit if he dies before collecting any other benefits from this System. The amount of the death benefit shall be equal to fifty -15- • • /44V** percent (50%) of the actuarially equivalent single sum value of the Member's vested accrued benefit or his Accumulated Contributions, whichever is greater. If this single sum value is less than $3,500, it shall be paid in a lump sum. If the value exceeds $3,500, the Beneficiary may elect payment under any of the optional forms available for retirement benefits or a lump sum payment. If a Member is eligible for early or normal retirement, but remains in employment and dies while so employed, the death benefit shall be determined as follows: It shall be assumed that such deceased Member had retired immediately preceding his date of death and elected the Ten Year Certain and Life Thereafter option. However, the death benefit shall be equal to fifty percent (50 %) of the actuarially equivalent single sum value of the Member's vested accrued benefit, if larger than the Ten Year Certain and Life Thereafter Option, described earlier in this Section. SECTION 8. DISABILITY. 1. Disability Benefits On -Duty. Each Police Officer who is a Member in the System and who shall have become totally and permanently disabled while an active Member of the Okeechobee Police Department to the extent that he is unable, by reason of a medically determinable physical or mental impairment, to render useful and efficient service as a Police Officer, which disability was directly caused by the performance of his duty as a Police Officer, shall, upon establishing the same to the satisfaction of the Board, be entitled to -a monthly pension determined in the same manner as for early retirement as set forth in Section 6, subsection 4B, but in any event, the minimum amount paid to the Member shall be forty-two percent (42 %) of the Average Final Compensation of the Member. Any condition or impairment of health of a Police Officer caused by tuber- culosis, hypertension or heart disease shall be presumed to have been suffered in line of duty unless the contrary is shown by competent evidence, provided that such Police Officer shall have successfully passed a physical examination upon entering into such service, includin cardiogram, which examination failed to reveal any evidence of such condition; and provided further, that such presumption shall not apply to benefits payable or granted in a policy of life insurance or disability insurance. 2. Disability Benefits Off -Duty. Every Police Officer who is a Member in the System with five (5) years or more Credited Service who shall have become totally and permanently disabled to the extent that he is unable, by reason of a medically determinable physical or mental impairment, to render useful and efficient service as a Police Officer, which disability is not directly caused by the performance of his duties as a Police Officer shall be entitled to a monthly pension determined in the same manner as for early retirement as set forth in Section 6, subsection 4B, but in any event, the minimum amount paid to the Member shall be twenty-five percent (25 %) of his Average Final Compensation. 3. Conditions Dis4ualifvine Disgbilitv Benefitj. Each Police Officer who is claiming disability benefits shall establish, to the satisfaction of the Board, that such disability was not occasioned primarily by: A. Excessive or habitual use of any drugs, intoxicants, or alcohol. B. Injury or disease sustained while willfully and illegally participating in fights, riots or civil insurrections. C. Injury or disease sustained while committing a crime. D. Injury or disease sustained while serving in any branch of the Armed Forces. E. Injury or disease sustained after his employment as a Police Officer with the City Okeechobee shall have terminated. F. Willful, wanton conduct or gross negligence of the Member. -17- G. Injury or disease sustained by the Police Officer while worldng for anyone other than the City and arising out of such employment. H. A condition pre-existing the Police Officer's membership in the System. No Member shall be entitled to a disability pension, whether in line of duty or not in line of duty, because of or due to the aggravation of a specific injury, impairment or other medical condition pre-existing at the time of membership in the System, provided that such pre-existing condition and its relationship to a later injury, impairment or other medical condition be established by competent substantial evidence. Nothing herein shall be construed to preclude a disability pension to a Member who, after membership in the System, suffers an injury, impairment or other medical condition different from some other injury, impairment, or other medical condition existing at or prior to said membership. 4. Physical Examination Requirement. A Police Officer shall not become eligible for disability benefits until and unless he undergoes a physical examination by a qualified physician or physicians and/or surgeon or surgeons, who shall be selected by the Board for that purpose. Any Police Officer receiving disability benefits under provisions of this ordinance may be periodically re-examined by a qualified physician or physicians and/or surgeon or surgeons who shall be selected by the Board, to determine if such disability has ceased to exist. If the Board finds that the retiree is no longer permanently and totally disabled to the extent that he is unable to render useful and efficient service as a Police Officer, the Board shall recommend to the City that the retiree be returned to performance of duty as a Police Officer, and the retiree so returned shall enjoy the same rights that Member had at the time he was placed upon pension. In the event the retiree so ordered to -18- 4(F r4ft / lc AC:Wft return shall refuse to comply with the order within thirty (30) days from the issuance the Member shall forfeit the right to his pension. The cost of the physical examination and/or re-examination of the Police Officer claiming and/or receiving disability benefits shall be borne by the Fund. All other reasonable costs as determined by the Board incident to the physical examination, such as, but not limited to, transportation, meals and hotel accommodations, shall be borne by the Fund. If the Police Officer recovers from disability and reenters the service of the City as a Police Officer, his service shall be deemed to have been continuous, and the period for which Member received a disability retirement income shall be Credited Service for purposes of the System. If the Police Officer fails to reenter the service of the City as a Police Officer within thirty (30) days from the date the Board determines that the retiree is no longer permanently and totally disabled to the extent that he is unable to render useful and efficient service as a Police Officer, the Member's future benefits shall be determined as though he initially terminated employment on the date the Board determined that he was permanently and totally disabled to the extent that he was unable to render useful and efficient service as a Police Officer. The Board shall have the power and authority to make the final decisions regarding all disability claims. 5. Dj2bility Payments. The monthly benefit to which a Member is entitled in the event of the Member's disability retirement shall be payable on the first day of the first month after the Board determines such entitlement. However, the monthly retirement income shall be payable as of the date the Board determined such entitlement, and any portion due for a partial month shall be paid together with the first payment. The last payment will be: -19- 0 0 Ir I L. e A. If the Police Officer recovers from the disability prior to his normal retirement date, the payment due next preceding the date of such recovery, or B. If the Police Officer dies without recovering from disability or attains his normal retirement date while still disabled, the payment due next preceding his death or the 120th monthly payment, whichever is later. 6. Workers' Compensation. When a Member is receiving a disability pension and workers' compensation benefits pursuant to Florida Statute Chapter 440, for the same disability, and the total monthly benefits received from both exceed 100 % of the Member's final monthly Salary, excluding overtime, the disability pension benefit shall be reduced so that the total monthly amount received by the Member does not exceed 100% of such Salary. SECTION 9. VESTING. If a Member terminates his employment with the Police Department, either voluntarily or by discharge, and is not eligible for any other benefits under this System, Member shall be entitled to the following: 1. If the Member has less than ten (10) years Credited Service upon termination, the Member shall be entitled to a refund of his Accumulated Contributions or Member may leave it deposited with the Fund. 2. If the Member has ten (10) or more years of Credited Service upon termination, the Member shall be entitled to a monthly retirement benefit that is the Actuarial Equivalent of the amount of such retirement income otherwise payable to him commencing at Member's otherwise normal or early retirement date, provided he does not elect to withdraw his Accumulated Contributions and provided Member survives to his normal or early retirement date. -20- 3. Any Police Officer of the System whose position is terminated, for whatever reason, but who remains employed by the City in some other capacity, shal ve all retirement benefits accrued up to the date of such termination under this System preseZed provided he does not elect to withdraw his Accumulated Contributions from this Syste 4 INIV* Such accrued retirement benefits shall be payable at his otherwise normal retirement date hereunder, or later, in accordance with the provisions of this System; provided further, however, that benefits shall not be payable under this System during any period of continued employment by the City. SECTION 10. OPTIONAL FORMS OF BENEFITS. 1. In lieu of the amount and form of retirement income payable in the event of normal or early retirement as specified herein, a Police Officer, upon written request to the Board may elect to receive a retirement income or benefit of equivalent actuarial value payable in accordance with one of the following options: A. A retirement income of a modified monthly amount, payable to the Police Officer during the lifetime of the Police Officer and following the death of the Police Officer, 100%, 75%, or 50% of such monthly amount payable to a joint pensioner for his lifetime. B. A retirement income of a modified monthly amount payable to the Police Officer for his lifetime only. C. If a Member retires prior to the time at which social security benefits are payable, he may elect to receive an increased retirement benefit until such time as social security benefits shall be assumed to commence and a reduced benefit thereafter in order to provide, to as great an extent as possible, a more level retirement allowance during the entire period of retirement. The amounts payable shall be as recommended by the actuaries for the System, based upon the social -21- 0 0 security law in effect at the time of the Member's retirement. This option may be combined with other optional forms of efit. 2. The Police Officer, upon electing any option of this Section, will de)Ina the joint pensioner or Beneficiary (or Beneficiaries) to receive the benefit, if any, payabl nder the System in the event of Member's death, and will have the power to change such designa- tion from time to time. Such designation will name a joint pensioner or one or more primary Beneficiaries where applicable. If a Police Officer has elected an option with a joint pensioner or Beneficiary and Member's retirement income benefits have commenced, Member may thereafter change his designated joint pensioner or Beneficiary, but only if the designated Beneficiary predeceases the Member or if the designated Beneficiary and the Member were married at time of Member's retirement and are divorced subsequent thereto; provided however, in no event may a Member change his or her designated Beneficiary more than twice. 3. The consent of a Police Officer's joint pensioner or Beneficiary to any such change shall not be required. The rights of all previously -designated Beneficiaries to receive benefits under the System shall thereupon cease. 4. Upon change of a Member's Beneficiary or joint pensioner in accordance with this section, the Board shall adjust the Member's monthly benefit by application of actuarial calculations to insure that the benefit paid is the Actuarial Equivalent of the Member's then - current benefit. Any such Member shall pay the actuarial recalculation expenses and shall make repayment of any overage of previously -paid pension benefits as a result of said recalculations. Each request for a change will be made in writing on a form prepared by the Board and on completion will be filed with the Board. In the event that no designated Beneficiary survives the Police Officer, such benefits as are payable in the event of the death of the Police Officer subsequent to his retirement shall be paid as provided in Section 11. -22- t 5. Retirement income payments shall be made under the option elected in accordance with the provisions of this Section and shall be subject to following limitations: A. If a Police Officer dies prior to his normal retirement date cr,, . retirement date, whichever first occurs, no retirement benefit will bey payable under the option to any person, but the benefits, if any, will be determined under Section 7. B. If the designated Beneficiary (or Beneficiaries) or joint pensioner dies before the Police Officer's retirement under the System, the option elected will be canceled automatically and a retirement income of the normal form and amount will be payable to the Police Officer upon his retirement as if the election had not been made, unless a new election is made in accordance with the provisions of this Section or a new Beneficiary is designated by the Police Officer prior to his retirement and within ninety (90) days after the death of the Beneficiary. C. If both the retired Police Officer and the Beneficiary (or Beneficiaries) designated by Member die before the full payment has been effected under any option providing for payments for a period certain and life thereafter, made pursuant to the provisions of Subsection 1, the Board may, in its discretion, direct that the commuted value of the remaining payments be paid in a lump sum and in accordance with Section 11. D. If a Police Officer continues beyond his normal retirement date pursuant to the provisions of Section 6, Subsection 1, and dies prior to his actual retirement and while an option made pursuant to the provisions of this Section is in effect, monthly retirement income payments will be made, or a retirement benefit will be paid, under the -23- option to a Beneficiary (or Beneficiaries) designated by the Police Officer in the amount or amounts computed as if the Officer had retired under the option on the date on which his death ocz, 6. A Police Offimay not change his retirement option after the date tcer or depositing his first retirement check. 7. Notwithstanding anything herein to the contrary, the Board in its discretion, may elect to make a lump sum payment to a Member or a Member's Beneficiary in the event that the total commuted value of the remaining monthly income payments to be paid do not exceed Three Thousand Five Hundred Dollars ($3,500.00). Any such payment made to any person pursuant to the power and discretion conferred upon the Board by the preceding sentence shall operate as a complete discharge of all obligations under the System with regard to such Member and shall not be subject to review by anyone, but shall be final, binding and conclusive on all persons. SECTION 11. BENEFICIARIES. 1. Each Police Officer may, on a form provided for that purpose, signed and filed with the Board, designate a Beneficiary (or Beneficiaries) to receive the benefit, if any, which may be payable in the event of his death; and each designation may be revoked by such Police Officer by signing and filing with the Board a new designation -of -Beneficiary form. 2. If a deceased Police Officer fails to name a Beneficiary in the manner prescribed in Subsection 1, or if the Beneficiary (or Beneficiaries) named by a deceased Police Officer predeceases the Police Officer, the death benefit, if any, which may be payable under the System with respect to such deceased Police Officer, shall be paid to the estate of the Police Officer. -24- SECTION 12. CLAIMS PROCEDURES. 1. Claims of Affected Persons,. A. The Board of Trustees shall grant an initial hearing upo�e t of a written request ("Claim"), on matters which affect the substan of any person ("Claimant"), including Members, active or re ti, Beneficiaries, or any person affected by a decision of the Board of Trustees. B. The Board shall review the Claim at an initial hearing and enter an order within sixty (60) days from the date of receipt of the Claim and, in the case of disability claims, receipt by the Board of a written medical release authorization in a form approved by the Board Attorney and a completed set of interrogatories prepared by the Board Attorney and provided to the Claimant. The Board may extend the time for entering the order at an initial hearing for an additional forty-five (45) days if it determines such time is necessary for full discovery and adequate review. The Board Attorney and the Claimant may stipulate to further extensions of time. C. It shall be the function of the Board Attorney, throughout the claims procedure, to assist the Board in the discovery and presentation of evidence in order to assure that the Board receives all relevant information prior to the Board's decision. D. The Claimant shall have the right to be represented by counsel at any or all times throughout the claims procedure. 2. Initial Hearing. A. At the initial hearing, the only evidence to be considered by the Board shall be documentary evidence contained in the pension file, including -25- but not limited to, correspondence, medical records and reports of treating physicians and/or examining physicians ano011e a received pursuant to paragraph B. B. Other than questions from the Trustees, there will be no additional evidence at the initial hearing, except that the Claimant and/or his representative will be afforded fifteen (15) minutes to make a presentation, which shall be limited to comments and/or arguments as to the evidence or information already contained in the pension file, including the report of the examining physician. C. Upon completion of the review of the Claim at the initial hearing, the Board shall enter an order setting forth its findings and conclusions on the Claim. The written order shall be provided to the Claimant. The order shall include: (1) The specific findings and conclusions of the Board, including specific references to pertinent provisions of the System on which such conclusions are based; (2) A description of any additional material or information that the Board may deem necessary for the Claimant to perfect his Claim, together with the reasons why such material or informa- tion is necessary; and (3) An explanation of the right to a full hearing on the Claim and the time limit in which a full hearing must be requested in writing. D. The decision of the Board at the initial hearing shall not be final until after the time has expired to request a full hearing or, if a full hearing is requested, until the Board makes a decision at the conclusion of the full hearing. -26- a 3. Full Hear A. Any Claimant may request a full hearing on the issues JCte to the Board at an initial hearing and upon which the Board has to d an order as provided in subsection 2.C. above. B. A full hearing must be requested by the Claimant within ninety (90) days of the receipt of the Board's order. The order will be deemed received three (3) days following the date it is mailed to Claimant at the address provided to the Board by Claimant. C. Upon receipt of the request for a full hearing and considering the amount of discovery which might be conducted, the Board shall establish a date for the full hearing and cause notice to be given to the Claimant. The full hearing shall be held within ninety (90) days from the receipt of the request from the Member. The full hearing may be postponed, if necessary and with the consent of the Claimant, to permit full discovery of the facts. D. Copies of all documents to be offered into evidence at the full hearing, including depositions, and a complete witness list with names and addresses of witnesses expected to be called, shall be furnished to the Board by the Claimant and the Board Attorney at least twenty (20) days prior to the full hearing. Documents not furnished to the Board within the prescribed time limit may be excluded from evidence at the full hearing if a reasonable explanation is not provided for the delay in providing the documents. E. A Claimant or the Board Attorney may obtain discovery by deposition and/or interrogatories prior to the full hearing. Written notice of any -27- F. G. H. I. J. depositions and/or interrogatories shall be given to Board Attorney and the Claimant. / The costs of any discovery, except discovery requested by e B or the Board Attorney, the appearance of witnesses at the hearing, tl the making of a verbatim record of the proceedings shall be the responsibility of the Claimant. The Claimant shall be responsible for the appearance of any witnesses at the hearing. The Board shall, however, have the power to subpoena and require the attendance of witnesses and the production of docu- ments for discovery prior to and at the proceedings provided for herein. The Claimant may request in writing the issuance of subpoenas by the Board. A reasonable fee may be charged for the issuance of any subpoenas not to exceed the fees set forth in Florida Statutes. Testimony at the full hearing may be submitted in the form of a deposition. Since it will give the Board more time for review and consideration, the Board prefers that testimony be submitted by deposition. Depositions timely submitted will be part of the record before the Board at the full hearing and will not be read in totality at the full hearing; provided however, that this does not preclude the Claimant or the Board Attorney from reading parts of depositions in an opening or closing statement. Irrelevant and unduly repetitious evidence shall be excluded. Any person who knowingly gives false testimony is guilty of a misde- meanor of the first degree, punishable as provided in Section 775.082 or 775.083, Florida Statutes. -28- K. The file maintained by the Board, including but not limited to various medical reports therein, is part of the record befor the Bd at the full hearing. L. All proceedings of the Board shall be conducted in public. M. In cases concerning an application for pension benefits, including applications for disability retirement benefits, the burden of proof, except as provided by law, shall be on the Member seeldng to show entitlement to such benefits. N. In cases concerning termination of pension benefits including re- examination of Members receiving disability retirement benefits, the burden of proof shall be on the Board. O. Except as to those records which are exempted from the provisions of Chapter 119, Florida Statutes., Florida's Public Record Law, records maintained by the Board are open for inspection and/or copying during normal business hours at a reasonable cost for the copying. P. Should a CIaimant requesting an initial or full hearing decide to appeal any decision made by the Board, with respect to any matter considered at such hearing, the Claimant requesting an initial or full hearing will need a record of the proceedings and may need to assure that a verbatim record of the proceeding is made. The Claimant requesting an initial or full hearing will be responsible for obtaining a court reporter or otherwise maidng a record of the proceedings before the Board. Q. The decisions of the Board after the requested full hearing shall be final and binding. KUI 0 • R. Within fifteen (15) days after making a decision at th)i�khearing, the Board shall enter a final order setting forth its findings and/Z ions and a copy of the order shall be provided to the Claimant. S. Judicial review of decisions of the Board shall be sought by the of a timely petition for writ of certiorari with the Clerk of the Circuit Court, in the appropriate county. 4. Conduct of the Full Hearing. A. The Chairman shall preside over the hearing and shall rule on all evidentiary, procedural, and other legal questions that arise during the hearing. The Chairman's rulings shall stand unless overruled by all other Trustees present. The Chairman shall open the full hearing by explaining the procedures to be followed. B. The Claimant shall have the right to be represented by counsel or be self -represented. The Board Attorney shall advise the Board. C. The Claimant shall be allowed to make an opening statement not to exceed ten (10) minutes. D. Testimony of witnesses shall be under oath or affirmation. Depositions or affidavits shall be admissible if agreed upon by the Claimant and the Board or the Board Attorney. E. The Chairman, any Trustee, the Board Attorney, the Claimant or the Claimant's counsel, upon recognition by the Chairman, may direct questions to any witness during the proceedings. F. Either the Claimant or the Board Attorney shall have the right to present evidence relevant to the issues, to cross examine witnesses, to impeach witnesses and to respond to the evidence presented. -30- G. The Claimant shall be permitted a closing argumedk**ot exceed fifteen (15) minutes. H. The Board shall deliberate and make a decision following closiol!� argument and thereafter enter an order as provided herein. 5. Disability Claims - Additional Procedures. A. All applications for disability pensions shall be in writing. Forms for such applications may be provided by the Board. B. Upon receipt of the application for disability, the Board Attorney will provide the Claimant with a set of interrogatories or questions to be answered under oath and a medical release authorization. Both documents will be completed by the Claimant and returned to the Board Attorney. C. Upon receipt of the properly completed interrogatories and medical release authorization, the Board Attorney will request medical records from all relevant treating physicians; personnel records from the employer, copies of relevant workman's compensation records, and copies of other records deemed to be relevant to the Claim. The Board shall pay from the Fund the cost of any medical examinations required by the Board and for copies of medical records. D. The Board Attorney will, if authorized by the Board, upon receipt of the medical records from the treating physicians, schedule an indepen- dent medical examination (IME) with an appropriate independent examining physician who will be asked to render an opinion about Claimant's physical condition as it relates to the claimed disability. E. Upon receipt of the DAE from the examining physician, the Board Attorney will provide all records of treating physicians, relevant -31- • A**** workman's compensation claims records, the independent evaluation, and all other relevant documents to the Board for r1n in the pension file and the Board shall then schedule the initial hearing. SECTION 13. REPORTS TO DEPARTMENT OF INSURANCE,. Each year and no later than March 15th, the Chairman of the Board shall file a report with the Department of Insurance containing the following: 1. Whether in fact the Municipality is in compliance with the provisions of Chapter 185, Florida Statutes. 2. A certified statement of accounting for the most recent fiscal year of the Municipality (or an independent audit by a certified public accountant if required by the Department of Insurance) showing a detailed listing of assets and methods used to value them and a statement of all income and disbursements during the year. Such income and disbursements shall be reconciled with the assets at the beginning and end of the year. 3. A statistical exhibit showing the number of Police Officers on the force of the Municipality, the number included in the System, the number of Police Officers ineligible, classified according to the reasons for their being ineligible, and the number of disabled and retired Police Officers and their Beneficiaries receiving pension payments and the amounts of annual retirement income or pension payments being received by them. 4. A statement of the amount the Municipality has contributed to the Fund for the preceding plan year, and the amount the Municipality will contribute to the Fund for the current plan year. 5. If any benefits are insured with a commercial insurance company, the report shall include a statement of the relationship of the insured benefits to the benefits provided by this ordinance. This report shall also contain information about the insurer, basis of premium rates, mortality table, interest rates and method used in valuating retirement bene- fits. -32- 6. The actuarial valuation of the System as provided for in Sectio/3. Such valuation shall be prepared by an enrolled actuary who is enrolled under Subtitle Ti kllll�* 3 of the Employee Retirement Income Security Act of 1974 and who is a member of the Society of Actuaries or the American Academy of Actuaries. M=ON 14. RO$TER OF RETIREES. The Secretary of the Board shall keep a record of all persons enjoying a pension under the provisions of this ordinance in which it shall be noted the time when the pension is allowed and when the same shall cease to be paid. Additionally, the Secretary shall keep a record of all Police Officers employed by the Municipality in such a manner as to show the name, address, date of employment and date such employment is terminated. SECTION 15. BOARD ATTORNEY AND PROFESSIONALS. The Board may employ independent legal counsel at the System's expense for the purposes contained herein, together with such other professional, technical, or other advisors as the Board deems necessary. SECTION 16. MAXMFLTM PENSION. 1. Basic Limitation. Subject to the adjustments hereinafter set forth, the maximum amount of annual retirement income payable with respect to a Member under this System shall not exceed the lesser of. A. $90,000, or B. 100 % of the Member's average aggregate compensation for the three (3) consecutive calendar years during which the Police Officer was an active Member and had his highest aggregate compensation. "Compen- sation" shall mean the Police Officer's total annual remuneration paid or accrued for personal services rendered to the City during the plan year as reported on the Police Officer's W-2. -33- . • • For purposes of applying the above limitation, benefits AmYppirkided any form other than a straight life annuitywith no ancillary benefits shall be adjusted �Y J �Treasury Regulations, so that such benefits are the Actuarial Equivalent of a stt annuity. For purposes of this Section, the following benefits shall not be taken into account: (1) Any ancillary benefit which is not directly related to retirement income benefits; (2) Any other benefit not required under §415(b)(2) of the Internal Revenue Code and Regulations thereunder to be taken into account for purposes of the limitation of §415(b)(1) of the Internal Revenue Code. 2. Participation in Other Defined Benefit Plans. The limitation of this Section with respect to any Member who at any time has been a member in any other defined benefit plan (as defined in §4140) of the Internal Revenue Code) maintained by the City shall apply as if the total benefits payable under all defined benefit plans in which the Member has been a member were payable from one plan. 3. Adjustments in Limitations. In the event the Member's retirement benefits become payable before age 62, the S90,000 limitation prescribed by this Section shall be reduced in accordance with Regula- tions issued by the Secretary of the Treasury pursuant to the provisions of §415(b) of the Internal Revenue Code, but not less than $75,000. In the event the Member's retirement benefit becomes payable before age fifty- five (55), the $75,000 limitation shall be reduced from age fifty-five (55) in accordance with Regulations issued by the Secretary of the Treasury pursuant to the provisions of §415(b) of the Internal Revenue Code. A Member with at least fifteen (15) years of Credited Service may not have the benefit reduced below $50,000.00. -34- If the Member's retirement benefit becomes payable after PgLesibx -fi 65 Y � ( ), for purposes of determining whether this benefit meets the limitation set forth in S cti 1 herein, such benefit shall be adjusted so that it is actuarially equivalent to the bene beginning at age 65. This adjustment shall be made using an assumed interest rate of five percent (5 %) and shall be made in accordance with regulations promulgated by the Secretary of the Treasury or his delegate. 4. Less than Ten Years of Service. The maximum retirement benefits payable under this Section to any Member who has completed less than ten (10) years of Credited Service with the City shall be the amount determined under Subsection 1 of this Section multiplied by a fraction, the numerator of which is the number of the Member's years of Credited Service and the denominator of which is ten (10). 5. $10.000 Limit. Notwithstanding the foregoing, the retirement benefit payable with respect to a Member shall be deemed not to exceed the limitations set forth in this Section if the benefits payable, with respect to such Member under this System and under all other qualified defined benefit pension plans to which the City contributes, do not exceed $10,000 for the applicable plan year and for any prior plan year and the City has not at any time maintained a qualified defined contribution plan in which the Member participated. 6. Member in Defined Contribution Plan. In any case where a Member under this System is also a member in a "Defined Contribution Plan" as defined in §414(i) of the Internal Revenue Code, maintained by the City, the sum of the "Defined Benefit Plan Fraction" and the "Defined Contribution Plan Fraction" (both as defined in §415(e) of the Internal Revenue Code) shall not, subject to the restrictions and exceptions contained in §2004 of the Act, exceed 1.0. -35- 7. Akb RWVction of benefit$.. Reduction of benefits and/or contributions to all plans, where required, s aAJ be accomplished by first reducing the Member's benefit under any defined benefit plans in which Member participated, such reduction to be made first with respect to the plan in which Member most recently accrued benefits and thereafter in such priority as shall be determined by the Board and the plan administrator of such other plans, and next, by reducing or allo- cating excess forfeitures for defined contribution plans in which the Member participated, such reduction to be made first with respect to the plan in which Member most recently accrued benefits and thereafter in such priority as shall be established by the Board and the plan administrator for such other plans provided, however, that necessary reductions may be made in a different manner and priority pursuant to the agreement of the Board and the plan administrator of all other plans covering such Member. 8. Qgst-of-Living Adiustments. The limitations as stated in Subsections 1, 2, 3, and 6 herein shall be adjusted to the time payment of a benefit begins in accordance with any cost -of -living adjustments prescribed by the Secretary of the Treasury pursuant to §415(d) of the Internal Revenue Code. 9. Additional Limitation on Pension Benefits. Notwithstanding anything herein to the contrary: A. The normal retirement benefit or pension payable to a retiree who becomes a Member of the System and who has not previously participated in such System, on or after January 1, 1980, shall not exceed 100 percent of his Average Final Compensation. However, nothing contained in this Section shall apply to supplemental retirement benefits or to pension increases attributable to cost -of -living increases or adjustments. -36- A1410 B. No Member of the System who is not now a Member o Syste shall be allowed to receive a retirement benefit or pension whic part or in whole based upon any service with respect to which the Member is already receiving, or will receive in the future, a retirement benefit or pension from another System or plan. This restriction does not apply to social security benefits or federal benefits under Chapter 67, Title 10, U.S. Code. SECTION 17. COMMENCEMENT OF BENEFITS. 1. Unless the Member otherwise elects, with such election being in writing and delivered to the Board and specifying the form of retirement income and date on which the retirement income is to commence, the payment benefits under the System to the Member shall commence not later than the 60th day after the close of the plan year in which the latest of the following events occur: A. The attainment by the Member of age 65; B. The loth anniversary of the date on which the Member commenced participation in the System; or C. The termination of the Member's service with the City. 2. If the payment of a Member's retirement income cannot begin on the date required under Subsection 1 of this Section because the Board either cannot ascertain the amount of the Member's retirement income or cannot locate the Member after malting reasonable efforts to do so, the payment of the Member's benefit shall begin not later than sixty (60) days after the date on which the amount can be ascertained or the Member is located, whichever is applicable. Any such payment shall be made retroactive to a date which is not earlier than the date on which the payment of the Member's benefit was scheduled to begin but which is not later than the date specified under Subsection 1 of this Section. -37- SECTION 18. DISTRIBUTION OF BENEFITS. 41! Notwithstanding any other provision of this System to the contrary, a form o retirement income payable from this System after the Effective Date of this ordinance, shall satisfy the following conditions: 1. If the retirement income is payable before the Member's death, A. It shall either be distributed or commence to the Member not later than April 1 of the calendar year following the later of the calendar year in which the Member attains age 70-1/2, or the calendar year in which Member retires, B. The distribution shall commence not later than the calendar year defined above; and a), shall be paid over the life of the Member or over the lifetimes of the Member and Spouse, issue or dependent, or b), shall be paid over the period extending not beyond the life expect- ancy of the Member and Spouse, issue or dependent. Where a form of retirement income payment has commenced in accordance with the preceding paragraphs and the Member dies before his entire interest in the System has been distributed, the remaining portion of such interest in the System shall be distributed no less rapidly than under the form of distribution in effect at the time of the Member's death. 2. If the Member's death occurs before the distribution of his interest in the System has commenced, Member's entire interest in the System shall be distributed within five (5) years of Member's death, unless it is to be distributed in accordance with the following rules: A. The Member's remaining interest in the System is payable to his Spouse, issue or dependent; -38- It 0 0 *k* B. The remaining interest is to be distributed over the life of I use, issue or dependent or over a period not extending beyond the expectancy of the Spouse, issue or dependent; and C. Such distribution begins within one year of the Member's death unless the Member's Spouse, issue or dependent shall receive the remaining interest in which case the distribution need not begin before the date on which the Member would have attained age 70-1/2 and if the Spouse, issue or dependent dies before the distribution to the Spouse, issue or dependent begins, this Section shall be applied as if the Spouse, issue or dependent were the Member. SECTION 19. MISCELLANEOUS PROVISIONS. 1. Interest of Members in Svstem. At no time prior to the satisfaction of all liabilities under the System with respect to Members and their Spouses or Beneficiaries, shall any part of the corpus or income of the Fund be used for or diverted to any purpose other than for their exclusive benefit. 2. Liauidation of Fund Assets. A. In the event that contributions of the City are permanently discontinued or in the event that it becomes necessary for the City to discontinue the System, the Board shall determine a proposed date of termination and liquidate the Fund, in accordance with the applicable requirements of the Act governing termination. The rights of affected Members, joint annuitants, Beneficiaries and surviving Spouses to benefits accrued to the date of any such termination or discontinuance to the extent then funded shall become fully vested and nonforfeitable and upon occurrence of such event, the City's aliquot share of the assets then -39- I remaining in the Fund shall be allocated among the Members andkir Beneficiaries and administered and distributed at such time or times as is determined by the Board. B. Any reserves which shall be released as a result of the application of the provisions of Section 20, Subsection 3E, shall be added to the portion of the Fund which is distributed as provided above to Members whose benefits are not restricted, provided that in the event that all of the benefits accrued to such Members are fully provided for, such released reserves (or any remaining portion thereof) shall be allocated to provide to the extent possible up to one hundred percent (100%) of the benefits otherwise cancelled pursuant to Section 20, Subsection 3E, allocating such remaining funds in proportion to the value of the benefits so cancelled. C. The Board may in its discretion give effect to the provisions of the foregoing paragraphs A and B by the purchase of annuities, by continu- ing the Fund in existence and making provisions thereunder for pension benefits, or by immediate distribution from the Fund. If the assets of the Fund applicable to any asset distribution priority category are insufficient to provide full benefits for all persons in such group, the benefits otherwise payable to such persons shall be reduced proportionately except as may otherwise be specified by regulations. If there is any balance remaining in the Fund after all obligations to Members, joint annuitants, Beneficiaries and surviving Spouses are met, such balance will revert to the City. The actuary shall calculate the allocation of the assets of the Fund in accordance with the asset distribution priority category, and certify his calculations to the Board. 03 I No liquidation of assets and payment of benefits (or provisioth - fore) shall actually be made by the Board until after it is advised by City in writing that applicable requirements, if any, of the Act gover- ning termination of "Police Officer Pension Benefit Plans" have been, or are being, complied with or that appropriate authorizations, waivers, exceptions or variances have been, or are being, obtained. 3. No amendment or ordinance shall be adopted by the City Council of the City of Okeechobee which shall have the effect of reducing the then vested accrued benefits of Members or a Member's Beneficiaries. $ECTION 20. REPEAL OR TERMINATION OF SYSTEM. 1. This ordinance establishing the System and Fund, and subsequent ordinances pertaining to said System and Fund, may be modified, terminated, or amended, in whole or in part; provided that if this or any subsequent ordinance shall be amended or repealed in its application to any person benefiting hereunder, the amount of benefits which at the time of any such alteration, amendment, or repeal shall have accrued to the Member or Beneficiary shall not be affected thereby, except to the extent that the assets of the Fund may be deter- mined to be inadequate. 2. If this ordinance shall be repealed, or if contributions to the System are discontinued, the Board shall continue to administer the System in accordance with the provisions of this ordinance, for the sole benefit of the then Members, any Beneficiaries then receiving retirement allowances, and any future persons entitled to receive benefits under one of the options provided for in this ordinance who are designated by any of said Members. In the event of repeal, or if contributions to the System are discontinued, there shall be full vesting (100 %) of benefits accrued to date of repeal and the assets of the System shall be allocated in an equitable manner to provide benefits on a proportionate basis to the persons so entitled in accordance with the provisions thereof. -41- 3. The following shall be the order of priority for purposes of Liuis of the System as of the date of repeal of this ordinance, or if contributions to the System are discontinued with the date of such discontinuation being determined by the Board. A. Apportionment shall first be made in respect of each retired Police Officer receiving a retirement or disability benefit hereunder on such date, each person receiving a benefit on such date on account of a retired or disabled (but since deceased) Police Officer, and each Police Officer who has, by such date, become eligible for normal retirement but has not yet retired, an amount which is the Actuarial Equivalent of such benefit, based upon the actuarial assumptions in use for purposes of the most recent actuarial valuation, provided that, if such asset value be less than the aggregate of such amounts, such amounts shall be proportionately reduced so that the aggregate of such reduced amounts will be equal to such asset value. B. If there be any asset value remaining after the apportionment under paragraph A, apportionment shall next be made in respect of each Police Officer in the service of the City on such date who has completed at least ten (10) years of Credited Service and who is not entitled to an apportionment under paragraph A, in the amount required to provide the Actuarial Equivalent, as described in A above, of the accrued normal retirement benefit, based on the Credited Service and average monthly earnings as of such date, and each vested former Member then entitled to a deferred benefit who has not, by such date, begun receiving benefit payments, in the amount required to provide said Actuarial Equivalent of the accrued normal retirement benefit, provided that, if such remaining asset value be less than the aggregate -42- of the amounts apportioned hereunder, such latter*n shall be proportionately reduced so that the aggregate of such red ed ounts will be equal to such remaining asset value. C. If there be any asset value after the apportionments under paragraphs A and B, apportionment shall be made in respect of each Police Officer in the service of the City on such date who is not entitled to an apportionment under paragraphs A and B in the amount equal to Member's Accumulated Contributions, provided that, if such remaining asset value be less than the aggregate of the amounts apportioned here- under such latter amount shall be proportionately reduced so that the aggregate of such reduced amounts will be equal to such remaining asset value. D. If there be any asset value remaining after the apportionments under paragraphs A, B, and C, apportionment shall lastly be made in respect of each Police Officer included in paragraph C above to the extent of the Actuarial Equivalent, as described in paragraph A above, of the accrued normal retirement benefit, less the amount apportioned in para- graph C, based on the Credited Service and average monthly earnings as of such date, provided that, if such remaining asset value be less than the aggregate of the amounts apportioned hereunder, such amounts shall be reduced so that the aggregate of such reduced amounts will be equal to such remaining asset value. E. In the event that there be asset value remaining after the full apportionment specified in paragraphs A, B, C, and D, such excess shall be returned to the City, less return of the State's contributions to the State, provided that, if the excess is less than the total contributions -43- • made by the City and the State to the date of termination s/h cess shall be divided proportionately to the total contributions mad City and the State. il�� The allocation of the Fund provided for in this Subsection may, as decided by the Board, be carried out through the purchase of insurance company contracts to provide the benefits determined in accordance with this Subsection. The Fund may be distributed in one sum to the persons entitled to said benefits or the distribution may be carried out in such other equitable manner as the Board may direct. The Fund may be continued in existence for purposes of subsequent distributions. If, at any time during the first ten (10) years after the effective date of the ordinance originally establishing this System, the System shall be terminated or the full current costs of the System shall not have been met, anything in the System to the contrary notwithstanding, City contributions which may be used for the benefit of any one of the twenty-five (25) highest paid Police Officers on the effective date, whose anticipated annual retirement allowance provided by the City's contributions at Member's normal retirement date would exceed $1,500, shall not exceed the greater of either a) $20,000, or b), an amount computed by multiplying the smaller of $10,000 or twenty percent (20 %) of such Police Officer's average annual earnings during his last five (5) years of service by the number of years of service since the effective date. In the event that it shall hereafter be determined by statute, court decision, ruling by the Commissioner of Internal Revenue, or otherwise, that the provisions of this paragraph are not then necessary to qualify the System under the Internal Revenue Code, this paragraph shall be ineffective without the necessity of further amendment of this ordinance. 4. After all the vested and accrued benefits provided hereunder have been paid and after all other liabilities have been satisfied, then and only then shall any remaining funds revert to the general fund of the City. -44- • SECTION 21. EXEMPTION FROM EXECUTION. NON-ASSUOSIDLITY. as otherwise provided by law, the pensions, annuities, or any othb fits accrued or accruing to any person under the provisions of this ordinance Accumulated Contributions and the cash securities in the Fund created under this ordinance are hereby exempted from any state, county or municipal tax and shall not be subject to execution, attachment, garnishment or any legal process whatsoever and shall be unassignable. SECTIQN 22. PENSION VALIDITY. The Board shall have the power to examine into the facts upon which any pension shall heretofore have been granted under any prior or existing law, or shall hereafter be granted or obtained erroneously, fraudulently or illegally for any reason. Said Board is empowered to purge the pension rolls of any person heretofore granted a pension under prior or existing law or heretofore granted under this ordinance if the same is found to be erroneous, fraudulent or illegal for any reason; and to reclassify any person who has heretofore under any prior or existing law been or who shall hereafter under this ordinance be erroneously, improperly or illegally classified. SECTION 23. FORFEITURE OF PENSION. 1. Any Police Officer who is convicted of the following offenses committed prior to retirement, or whose employment is terminated by reason of his admitted commission, aid or abetment of the following specified offenses, shall forfeit all rights and benefits under this System, except for the return of his Accumulated Contributions as of the date of termination. Specified offenses are as follows: A. The committing, aiding or abetting of an embezzlement of public funds; B. The committing, aiding or abetting of any theft by a public officer or employee from employer; -45- C . Bribery in connection with the employment a ent of Public/ r or P employee; 4J$'** D. Any felony specified in Chapter 838, Florida Statutes. E. The committing of an impeachable offense. F. The committing of any felony by a public officer or employee who willfully and with intent to defraud the public or the public agency, for which he acts or in which he is employed, of the right to receive the faithful performance of his duty as a public officer or employee, realizes or obtains or attempts to obtain a profit, gain, or advantage for himself or for some other person through the use or attempted use of the power, rights, privileges, duties or position of his public office or employment position. 2. Conviction shall be defined as an adjudication of guilt by a court of competent jurisdiction; a plea of guilty or a nolo contendere; a jury verdict of guilty when adjudication of guilt is withheld and the accused is placed on probation; or a conviction by the Senate of an impeachable offense. 3. Court shall be defined as any state or federal court of competent jurisdiction which is exercising its jurisdiction to consider a proceeding involving the alleged commission of a specified offense. Prior to forfeiture, the Board shall hold a hearing on which notice shall be given to the Member whose benefits are being considered for forfeiture. Said Member shall be afforded the right to have an attorney present. No formal rules of evidence shall apply, but the Member shall be afforded a full opportunity to present his case against forfeiture. 4. Any Member who has received benefits from the System in excess of his Accumulated Contributions after Member's rights were forfeited shall be required to pay back to the Fund the amount of the benefits received in excess of his Accumulated Contributions. The Board may implement all legal action necessary to recover such funds. -46- SECTION 24. INDEMNIFICATION. 1. To the extent not covered b insurance contracts in y o tracts force from to e, the City shall indemnify and hold harmless members of the Board from all personal for damages and costs, including court costs and attorneys' fees, arising out of claims, suits, litigation, or threat of same, herein referred to as "claims", against these individuals because of acts or circumstances connected with or arising out of their official duty as members of the Board. The City reserves the right, in its sole discretion, to settle or not settle the claim at any time, and to appeal or to not appeal from any adverse judgment or ruling, and in either event will indemnify and hold harmless any members of the Board from the judgment, execution, or levy thereon. 2. This Section shall not be construed so as to relieve any insurance company or other entity liable to defend the claim or liable for payment of the judgment or claim, from any liability, nor does this Section waive any provision of law affording the City immunity from any suit in whole or part, or waive any other substantive or procedural rights the City may have. 3. This Section shall not apply nor shall the City be responsible in any manner to defend or pay for claims arising out of acts or omissions of members of the Board which constitute felonies or gross malfeasance or gross misfeasance in office. SECTION 25. TRANSFERS WITHIN THE CITY. If a member of any of the City's three retirement systems transfers to either of the other two systems, he must choose one of the following procedures with regard to Credited Service accrued to date of transfer. 1. The Member may take a refund of his Accumulated Contributions, in which event no pension benefit shall be payable based on Credited Service attributable to the period covered. -47- ti 4 • 2. The member may leave his Accumulated Contributions in theA1! - which event his Credited Service with both systems shall be combined for purposes of de� in Y P rP g eligibility for benefits and for vesting. When the member is eligible to receive a bene , h shall receive benefits from both systems, which shall consist of accrued benefits under each system based on the provisions of the respective system and the earnings and Credited Service under that system. SECTION 26. MILITARY SERVICE PRIOR TO EMPLOYMENT. The years or fractional parts of years that a Police Officer serves or has served on active duty in the active military service of the Armed Forces of the United States or the United States Merchant Marine, voluntarily or involuntarily, honorably or under honorable conditions, prior to first and initial employment with the City Police Department shall be added to his years of Credited Service provided that: 1. The Police Officer contributes to the Fund the sum that he would have contributed had he been a member of the System for the years or fractional parts of years for which he is requesting credit plus amounts actuarially determined such that the crediting of service does not result in any cost to the Fund plus payment of costs for all professional services rendered to the Board in connection with the purchase of years of Credited Service. 2. The request shall be made only once and made by the Police Officer on or before twelve (12) months from the Effective Date of this ordinance or six (6) months from the date of his employment with the City Police Department, whichever is later. 3. Payment by the Police Officer of the required amount shall be made within six (6) months of his request for credit and shall be made in one lump sum payment upon receipt of which Credited Service shall be given. 4. The maximum credit under this Section shall be four (4) years. 5. Credited Service purchased pursuant to this section shall not count toward vesting. -48- u A**** SECTION 27. DIRE -CT TRANSFERS OF ELIGIBLE ROLLOVER , DISTRIBUTIONS . 1. General. 4 4J! This Section applies to distributions made on or after January 1, 1993. Notwithstanding any provision of the plan to the contrary that would otherwise limit a distributee's election under this Section, a distributee may elect, at the time and in the manner prescribed by the Board, to have any portion of an eligible rollover distribution paid directly to an eligible retirement plan specified by the distributee in a direct rollover. A. Eligible Rollover Distribution: 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 Code; and the portion of any distribution that is not includible in gross income. B. Eligible Retirement Plan: An eligible retirement plan is an individual retirement account described in section 408(a) of the Code, an individual retirement annuity described in section 408(b) of the Code, an annuity plan described in section 403(a) of the Code, or a qualified trust described in section 401(a) of the Code, that accepts the distributee's eligible rollover distribution. However, in the case of an eligible rollover distribution to the surviving Spouse, an eligible -49- C w wea-17 retirement plan is an individual retirement account or ual retirement annuity. Distributee: A distributee includes an employee or former employee. In addition, the employee's or former employee's surviving Spouse is a distributee with regard to the interest of the Spouse. Direct Rollover: A direct rollover is a payment by the plan to the eligible retirement plan specified by the distributee. -50- Section 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 • UTILITY AGREEMENT for WATER SERVICE TABLE OF CONTENTS Title Preamble . . . . . . . . . . . . . . . . . . . Definitions. . . . . . . . . . . . . . . . . Capacity Allocation. . . Agreement to Serve . . . . . . . . . . . . . . Fees . . . . . . . . . . Payment of Fees. . . . . On -Site Installations. . . , . , . . . . . . Off -Site Installations . . . . . . . . . . . . Procedures for Construction of Installations Water Meters . . . . . 4 . Title to Installations Constructed by Developer . . . . , . . . . , Easements. . . . . , , , . . . . . . . . . . Voluntary Annexation . . . . . . . . Mortgage Liens . . . . . . . . . . . . . . . . City's Exclusive Right to Utility Facilities . Exclusive Right to Provide Service . . . . Service Rates. . . . . . . . . . . Application for Service to Consumer Installations . . . . . . . . . . . . . . . . Water Conservation . . . . . . . . Iirspect.i.on . . . . . . . . . . . . Relocation of Utility Facilities . . . . , . . Notices. . . . . . . . . Cost and Attorneys' Fees . . . . . . . . . . . Interpretation . . . . . . . Assignment . . . . . . . . . . . i Page 1 1 2 3 3 3 3 4 4 5 5 6 7 7 7 7 8 8 8 9 9 9 9 9 10 Alk 26 Strict Compliance . . . . . . . . . . . . . . . / 10 27 Time of the Essence. . . . . . . . . . 1 28 Entire Agreement and Incorporation byReference . . . . . . . . . . . . . . . . t0 29 Finding Effect . . . . . . . . . . . . . . . . 10 30 Liability . . . . . . . . . . . . . . . . . . 10 31 Governing Law. . . . . . . . . . . . 10 32 Effective Date . . . . . . . . . . . . . . . . 10 33 Counterparts . . . . . . . . . . . . . . . . . 10 ii UTILITY AGREEMENT ' for WATER SERVICE 41 THIS AGREEMENT is made and entered into this day of , 19 , by and between The City of Okeechobee, a political subdivision of the State of Florida, hereinafter referred to as "City" and (Developer's Name) HCA Realty, Inc. (HCA Raulerson) ,hereinafter referred to as "Developer/Owner", a Corporation (Type of Organization) WHEREAS, Developer owns land located in Okeechobee County, Florida as described in Exhibit "A" and shown on the survey in Exhibit "B" attached hereto (the "Property"), and Developer intends to develop the Property; and WHEREAS, Developer has requested that the City provide central water service for the Property; and WHEREAS, the City is willing to provide central water service to the Property and thereafter to operate the utility facilities so that the occupants of the improvements on the Property will receive water service from City in accordance with the provisions of this Agreement; NOW, THEREFORE, for and in consideration of the premises, the mutual undertakings and agreements herein contained and assumed, and the Water Agreement, Developer and City hereby covenant and agree as follows: 1. Preamble. The foregoing statements are true and correct. 2. Definitions. The following definitions of terms used in this Agreement shall apply unless the context indicates a different meaning: (a) "Application" - A request in writing from Developer or a consumer on forms provided by City requesting pursuant to the Developer's Agreement specific water service. (b) "Connection Fees" - A fee or charge paid to the City Utility Department by the Developer/Applicant for the purpose of obtaining water service capacity. Connection fees will be utilized for the operation and maintenance of the water distribution system and to pay for related services to the property. (c) "Consumer Installation" - All facilities ordinarily on the consumer's side of the point of delivery (e.g. curb stop, lateral connections.) (d) "Contribution -in -Aid of Construction (CIAC)" - The sum of money and/or the value of property required as a prerequisite to service to the Property. (e) "DER" - The Florida Department of Environmental Regulation, or its successor agency. 1 construction Property. average daily connections. (f) "Development Phase' phase of the construction • ' - A subdivision or of utility facilities on (g) "SRC" - A factor used to convert a given flow (ADF) to the equivalent number of residential (h) "Facilities" - See Utility Facilities. (i) "GPD" - Gallons per day. 0) "Installation" - See Utility Facilities. (k) "Consumer's Point of Delivery" - Unless otherwise specified herein, the point where the water meter is connected to the Developer's or consumer's service lateral. The water meter will be set at the consumer's property line unless otherwise provided. (1) "Developer's Point of Delivery" - The point where the water service enters the Developer's Property or the point of connection of Developer's off -site installation to the City's System pursuant to Section B. (m) "Property" - The land described in Exhibit "A" and shown on the Survey in Exhibit "B" attached hereto. (n) "Service" or "Utility Service" - The readiness and ability of the City to furnish and maintain water service to the point of delivery. (o) "Service Rates" or "Rates" - The City's existing and future schedules of rates and charges for water service, including connection fees, meter set fees, and all other fees and charges which from time to time are in effect pursuant to ordinances, resolutions or policies adopted by City. The schedules of Service Rates shall be of general and uniform application within the City-wide water and sewer utility system. (p) "Water System Capacity," - The amount of water which can be pumped from the lake, treated, transmitted and distributed on an average daily basis, where such amount is reserved in gallons per day and includes fire flow. System capacity fees will be utilized for the acquisition, improvement, expansion and construction of facilities deemed necessary by the department to furnish water capacity to the property and to adequately fund capital equipment and improvements in and for the system. (q) "Utility Facilities" or "Facilities" or "Installations" - Utility facilities means and includes all equipment, fixtures, wells, pumps, lines, mains, manholes, lift - stations, pumping stations, laterals, service connections, and appurtenances together with all real property, easements and rights -of -way necessary to provide water service to the Property whether located on -site or off -site. The words "Utility Facilities," "Water Facilities," "Facilities," or "Installations" shall be interchangeable unless otherwise indicated by the context. 3. Capacity Allocation. The parties agree that the capacity needed to provide service to the Property is 1,500 gallons per day for potable water supply. Capacity allocation is subject to the Florida Department of Environmental Regulation (Section 403.021, Florida Statutes, and FAC 17-4.07 and 17-4.15) and approval of applicable permits for the property. Should the Florida Department of Environmental Regulations refuse to issue applicable permit(s) solely because capacity is not available, the Developer may request City to rescind the allocation of capacity. Developer agrees that the gallonage calculation to determine capacity is for the purpose of allocating capacity for the Property and not for purposes of any other calculations. 4. Agreement to Serve. Developer agrees to commence construction within 6 months from the date of acceptance by the city, and agrees to complete construction and obtain all necessary permits, certificate of occupancies and other .licensing requirements within 9 MONTHS Failure to meet this time frame will not obligate the city to refund any portion of fees paid, nor shall city pay any interest on the fees paid. The city reserves the right to recapture capacity allocations for failure of the Developer to meet the time frame conditions. Upon the completion of construction of water facilities by Developer, satisfactory inspections, the issuance of the final letter of acceptance by City, and subject to the terms of this Agreement, City agrees to permit connection of the water facilities installed by the Developer to the central facilities of City and to provide utility service in accordance with the terms and intent of this Agreement. Such connections shall at all times be in accordance with rules, regulations and orders of the applicable governmental authorities including the Department of Environmental Regulations and City. City agrees that once Developer or others have connected consumer installations to City's central facilities, City will continuously provide water service to the Property subject to continued compliance by Developer or consumer with all applicable City requirements for such service, excepting unavoidable disruption of service due to repairs, maintenance, etc. 5. Fees. In addition to the Contributions in Aid of construction (CIAC) where applicable, Developer hereby agrees to pay to City all applicable Fees in accordance with the Schedule from time to time in effect. Payment of the Fees will not excuse Developer from payment of any other charges uniformly made including meter fees. City shall not be obligated to refund any portion of Fees paid, nor shall City pay any interest on the Fees paid. Should the Florida Department of Environmental Regulation refuse to issue the applicable permit(s) solely because capacity is not available, refunds of the fees will be made by City within thirty days from such written notification from DER of its denial. Such requests to City for refunds must be accompanied by a written request from Developer that: the capacity allocation be rescinded. Developer shall be obligated to pay Fees in the amount in effect at the time Developer is required to pay the Fees, or any initial portion thereof. No user or consumer of water service shall be entitled to offset any bill rendered by City for such service against Fees paid. Developer shall not be entitled to offset Fees paid or payable against any claims of City. 6. Payment of Fees. Developer will be required to pay the fees at the time water capacity is allocated in accordance with Exhibit "C" attached hereto. Failure to pay the fees by will result in termination of this Agreement and recapture of capacity allocation. A monthly operating charge shall be assessed for each remaining unit which has not been transferred to a consumer after one year from the date water capacity was allocated or at the time of building permit issuance whichever occurs earlier. Rates and fees are subject to change from time to time by the city council, and the initial rates and fees charged shall not be construed as a contract over the life of the project. 7. On —site Installations. To induce City to provide service to the Property, Developer agrees to construct and to F 3 0 0 A*** transfer ownership and control to City, as a contribution-in-ai� of -construction, the on -site water facilities constructed by Developer or located on the Property. The term "on -site 4J! installations" means and includes all water distribution and supply mains, lines and pipes, and related facilities, from the point of entry of City facilities at Developer's property line to the Point of Deliver, excluding consumer's installations, adequate in size and design to serve each lot or unit within the Property or as otherwise required by City. Developer shall install at its sole expense, all of the aforesaid facilities within the Property in accordance with the plans, specifications and all other pertinent documents approved by the City and in accordance with Section 9, "Procedures for Construction of Installations" hereof. B. Off -site Installation. To induce City to provide service to the Property, Developer agrees to construct and to transfer ownership and control to City as a contribution -in -aid -of - construction all necessary off -site installations from Developer's Property to the City's existing facilities. The term "off -site installations" means and includes all water distribution and supply mains, lines and pipes and related facilities adequate in size and design to serve the Property or as otherwise required by City. Such off -site installations shall be in accordance with the master plans of the City as they relate to the water and sewer utility system. Developer shall install all of the off -site installations at its sole expense and in accordance with the plans, specifications and other pertinent documents approved by City except that in no event shall Developer be required to oversize lines to the benefit of other properties without prior agreement for reimbursement on behalf of such other properties. Developer shall construct the off -site installations in accordance with Section 9, "Procedures for Construction of Installations" hereof. 9. Procedures for Construction of Installations. Developer agrees that construction of all on -site and off -site installations as defined in Sections 7 and S respectively, shall be in accordance with the following requirements: (a) Permits. Developer shall submit applicable DER permit applications to City for signature prior to submission of permit application to DER. Developer shall make application to City for Underground Utility Permits and any other applicable permits such as Right -of -Way Use Permits or D.O.T. Permits upon receipt of an approved permit from DER. (b) Plans and Specifications. Developer will furnish City with three (3) sets of all plans and specifications (Plans) for the installation to be constructed prepared by a registered professional engineer. The plans shall be prepared in accordance with applicable City Ordinances and policies including the Land Development Code, Manual of Minimum Standards for Design, Construction and Maintenance for Water and Wastewater System for connection to City -owned utilities. Developer shall obtain approval of the Plans from all agencies having jurisdiction including the Department of Environmental Regulations and County, if applicable, and submit to City one (1) copy of any construction permits. No construction shall commence until the City and appropriate regulatory agencies have approved such Plans in writing and the City has received copies of the construction permits. If construction commences prior to all such approvals, City shall have no responsibility to accept any of the installations and City may elect to terminate this Agreement or withhold service until such time as Developer has obtained all required approvals. Should Developer wish to record the plat of a subdivision prior to construction of any installation, Developer shall post a performance bond or an irrevocable letter of credit which is 110% of the cost of construction of the installation. (c) Pre -construction Conference. After securing all permits and approvals of Plans by City and the other agencies, 4 Developer or the engineer of record shall set up a pre -construction conference with the engineer of record, utility contractor., the appropriate building officials and the City. (d) Notice to Cit Developer shall provide to City not less than forty-eight (48� hours written notice prior to commencement of construction, and as -built surveys shall be submitted seven (7) days prior to final inspection. Developer shall provide to City forty-eight (48) hours notice, which may be either written or verbal, prior to any inspections or tests (other than final inspection) being performed as described herein. Notices shall be deemed given upon actual receipt of same by City. (e) Inspections and Tests. During construction of any installation by Developer, City shall have the right to inspect such installation, including but not limited to the materials, equipment, piping and connections to determine compliance with the approved Plans. The engineer of record shall also inspect construction to insure compliance with approved Plans, permits and other applicable requirements. All standard tests and inspections for pressure, exfiltration, line and grade, and all other engineering tests and inspections shall be performed with the engineer of record and utility contractor present to determine that the systems have been installed in accordance with the approved Plans, permits and good engineering practices and are functioning satisfactorily for the purpose for which the installation was designed. It shall be the Developer's responsibility to insure that all construction and the installation fully meet approved Plans, permits and applicable requirements of law and, upon completion, that the installation functions satisfactorily for the purpose for which it was designed. (f) Completion. Upon completion of construction, Developer's engineer of record shall submit a signed certificate of completion certifying to City that the construction of the installation is complete, that the installation has been constructed in accordance with all permits, approved Plans, and applicable requirements of law, and as constructed, it will function for the purpose for which it was designed. If the certification is for a water distribution system, a copy of the bacteriological results and a sketch showing locations of all sample points shall be provided. (g) As -built and Other Plans. At least seven (7) days prior to final inspection, Developer or his engineer shall also provide City with one (1) set of ammonia mylars of the "as -built" surveys prepared by the engineer of record showing the location of all installations as constructed. Developer will provide City with two (2) sets of approved paving and drainage plans and three (3) copies of the recorded subdivision plat. Developer will provide proof satisfactory to City that the installation and all contractors, subcontractors, maL-erialmen and laborers have been paid in full together with the engineer's certificate of the total cost of the installation. 10. Water Meters. A water meter or meters necessary to serve the Property shall be installed by Developer at the Point of Delivery. City will designate the number, type, quality and size of said meter or meters. The water meter or meters and enclosures are to be installed by the Developer prior to final City inspection. The cost thereof and associated labor charges shall be paid by Developer prior to installation at the then current rates charged by City. All water meters and enclosures shall remain the property of City. The Developer shall also be responsible for the installation of a back flow prevention device to be installed on the consumer side of the meter. 11. Title to Installations Constructed by Developer. As a condition precedent to the right to connect the on -site installations and any off -site installations to City's Utility 5 • A111*4 / /4 System, Developer shall convey title to as much of tho installations, including real property, easements and rights -of -way as are required by City in accordance with the following: (a) Compliance. Developer shall be in compliance with this Agreement. (b) Time and Place of Conveyance. Unless otherwise agreed upon in writing, conveyance shall be made when the City is prepared to issue its letter of acceptance to Developer and commence delivery of service to the Property. Upon completion of the installations, Developer shall deliver the necessary instruments of conveyance, properly executed, in substantially the same form attached hereto as Exhibit "D" (Warranty Deed), Exhibit "E" (Bill of Sale), and Exhibit "P" (Easements), together with funds sufficient to pay all costs of conveyance and recording. Delivery shall be made to the City's Director of Public Utilities at the address shown herein for delivery of notices. Acceptance of the conveyance by the City shall not become final until the City Council duly accepts same. Upon a vote to accept conveyance by the City Council, the instruments of conveyance will be recorded in the public records of Okeechobee County. The City will issue its letter of acceptance to Developer and City's obligation to provide service in accordance with this Agreement shall commence. (c) Fire Hydrant. If Developer's property is located within unincorporated Okeechobee County; Developer will be required to obtain a resolution (Exhibit G) adopted by the Okeechobee Board of County Commissioners accepting the fire hydrants, and agreeing to pay the City an annual maintenance fee for each fire hydrant. (d) Assurance of Title. Developer shall at its expense deliver to City a title insurance policy or an opinion of title with respect to the Property confirming Developer's legal right to grant the deeds, easements and exclusive rights of service contained in this Agreement as a condition precedent to City's issuance of a letter of acceptance or delivery of service. (e) Conveyance. Developer shall convey all of its interest- in the installations to be conveyed to City be Warranty Deed, Bill of Sale, Easements, Endorsement, Assignments, Affidavits of No Liens and other good and sufficient instruments of transfer and conveyance, including necessary permits, as shall be effective to vest in City good and marketable title to the installations free and clear of all liens and encumbrances. Transfer of all manufacturers' and contractors' warranties, maintenance bonds and construction contracts shall be conveyed by unconditional assignment by Developer. Developer shall remain secondarily liable on such warranties and hereby agrees to indemnify and save harmless the City from any losses, damages, costs, claims, suits, debts or demands by reason of latent defects in the installations which could not have been reasonably discovered upon normal engineering inspection, .for a period of two (2) years from the date of acceptance by the City of said utility installations. (f) Maintenance Bond. Developer shall provide the appropriate maintenance bonds required by the Land Development Code and the Water and Sewer Guidelines in effect at the time of conveyance. (g) Manuals. Developer shall provide City with all operation, maintenance and parts manuals necessary for the operation and maintenance of the installations. 12. Easements. Developer hereby grants to City, subject to the terms of this Agreement, the exclusive right to construct, own, maintain and operate water and sewer facilities to serve the G Property; and the exclusive right to construct-, own, maintain and operate said facilities in, under, upon, and across the present and future streets, easements, reserved utility strips and utility sites, and any public place as provided and dedicated to public use in the record plats, or as provided for in agreements, dedications or grants made otherwise and independent of said record plats, and these restrictions duly noted on any conveyance of lots or units to subsequent purchasers. Developer hereby further agrees that the foregoing grants include the necessary right of ingress and egress to any part of the developer's property upon which City is constructing or operating utility facilities. The foregoing grants shall continue for as long as City requires such rights for the construction, ownership, maintenance, operation or expansion of the facilities. Developer, upon request of City, shall execute recordable easements acceptable to City to carry out the purposes of this Section. The parties agree that in the event Developer and City agree to install any of the facilities in lands within the Property lying outside the streets and easement areas described above, then Developer or the owner shall grant to City, the necessary easements for such "private property" installation. Subject to City's prior written consent, the use of easements granted by Developer to city shall not preclude the use by other utilities of these easements, such as cable television, telephone, electric, or gas utilities, provided each does not interfere with City's use thereof. City hereby agrees that all easement grants will be utilized in accordance with generally accepted practices of publicly owned water and sewer utilities with respect to the installation of all .its facilities in any of the easement areas. 13. Voluntary Annexation. Developer agrees that in the event Developer's property becomes contiguous to the city's boundary, as such term is defined in the laws of the State of Florida, then this agreement, together with the application for service and all exhibits, shall be considered as application for voluntary annexation of Developer's real property into the corporate limits of the City of Okeechobee. The terms of this agreement shall run with the land and subsequent purchasers of lots or units shall also be deemed to have applied for voluntary annexation as provided herein. 14. Mortgage Liens. Mortgagees, if any, holding prior liens on the Property shall be required to release such liens, subordinate their positions or join in any conveyance, grant or dedication of the easements or rights -of -way, or give to City assurance by way of a "non -disturbance agreement", that in the event of foreclosure, mortgagee would continue to recognize the ownership and easement rights of City, as long as City complies with the terms of this Agreement. All facilities, save and except consumer installations, shall be covered by easements or rights -of -way if not located within platted or dedicated roads or rights -of -way for utility purposes. It• shall be Developer's obligation to gain these assurances from the mortgagee and present same to the City. 15. City's Exclusive Right to Utility Facilities. Developer and City agree that all water facilities accepted by City in connection with providing service to the Property shall at all times remain in the sole and exclusive ownership of City. Any person or entity owning any part of the Property or any residence, building or unit constructed or located thereon, shall not have any right, title, claim or interest to such facilities for any purpose, E4*J 7 • including the furnishing of water services to others located within or beyond the limits of the Property. Subject- to City's written consent, Developer may utilize other water sources for the Properly for "non —domestic" uses such as for irrigation purposes. 16. Exclusive Right to Provide Service. Developer shall not engage in the business of providing water or sewer services to the Property. Developer hereby grants City the sole and exclusive right to provide water services to the Property and to the occupants thereon. 17. Service Rates. The rates to be charged by City to the Developer or to a consumer for water service on the Property shall be those rates charged by City to its other customers pursuant to service rates from time to time in effect as defined herein. City reserves the right to withhold or disconnect service at any time the service rates are not paid on a current basis within 25 days after the same are billed. Developer or consumer, as the case may be, hereby agrees to save and hold harmless City for any loss or damages resulting from the exercise of this right. The service to the Property shall. be subject to such other regulations from time to time imposed on City with respect to the operations of its water and sewer systems, and except as limited by such regulations, the amounts of utility deposits, billing practices and times, liability for damage to City's Property and rate changes shall be exclusively within the discretion and control of City. 18. Application for Service to Consumer Installations. Developer, or any owner or occupant oil the Property (consumer) shall not connect any consumer installation to the facilities of City until application has been made to City by the Developer or consumer and approval for such connection has been granted. Developer or consumer shall be responsible for connecting the consumer installation to the meter and/or lines of City at the point of delivery in accordance with the following requirements: (a) Application for the installation of water meters and backflow preventors shall be made twenty—four (24) hours in advance, not including Saturdays, Sundays and holidays. (b) All consumer installations may at City's sole option be inspected by City before backfilling and covering of any pipes. (c) Written notice to City requesting an inspection of a consumer installation may be given by the Developer, the consumer or his contractor, and the inspection will be made within twenty—four (24) hours, not including Saturdays, Sundays and holidays, provided the water meter and backflow preventor, if applicable, have been previously installed. (d) Developer or consumer may not backf.ill or cover the pipes without City's inspection and approval. (e) The cost of construction, operation, maintenance, repair or replacement of consumer installations shall be the responsibility of Developer or consumer and not the City. 19. `later Conservation. Developer agrees to employ water conservation measures J.n development of the Property. Subject to City review and approval to encourage water conservation, such measures shall include but not be limited to: (a) Installation of low flush toilets which uti:LLze 3.5 gallons or less of water per flushing cycle. 8 (b) Installation of shower heads which have flow restrictors, pulsating features, flow control devices or other features which result in water conservation; and do not allow a flow exceeding 3.0 gallons per minute at 60 psi. (c) No swimming pool filter backwash water, or any other swimming pool wastewater shall. be di.9char.ged to the san-itary sewer system. (d) Installation of spring-loaded/automatic shut-off water fixtures in all public rest•rooms, including lavatory fixtures. 20. Inspection. City may, at its option and without notice, inspect Developer's utility facilities at all times whether before or after completion of construction and acceptance of same by the City. City, by inspecting or not inspecting to any extent whatsoever, shall not assume responsibility for construction or installation of Developer's utility facilities and shall in no way be deemed to waive any rights available to City for defaults oil the part of Developer, or to consent to any defects, omissions or failures in the design, construction and installation of Developer's utility facilities. 21. Relocation of Utility Facilities. Any relocation of utility facilities required for Developer's convenience or necessity shall be done at Developer's expense provided such relocation can be accomplished without adverse impact on any other part of the facilities or other consumers. 22. Notices. Any payment or notice required or permitted hereunder shall be in writing and be deemed properly made (a) when hand delivered to the official hereinafter designated, or (b) upon actual receipt when deposited in the United States mail, postage prepaid, addressed as set forth herein, or at such other address as shall have been specified by written notice to the other party delivered in accordance herewith: City: Developer: Director of 55 S.E. 3rd Okeechobee, Public Avenue Florida HCA Realty, Inc. HCA Raulerson P.O. Box 1307 Utilities 34974 Okeechobee, Florida 34973 23. Cost and Attorneys' Fees. In the event City or Developer brings an action to enforce this Agreement by court proceedings or otherwise, then the prevailing party shall be entitled to recover from the other party all costs incurred, together with reasonable attorneys' fees. we 24. Interpretation. Developer and City agree tl<ia words, terms and conditions contained herein are to be read concert, each with the other, and that a provision contained and $' one heading may be considered to be equally applicable under another in the interpretation of this Agreement. 25. Assignment. This Agreement may not be assigned by Developer without the prior written consent of City, which shall not be unreasonably withheld provided Developer's successor or assign expressly assumes Developer's obligations hereunder by execution of this Agreement. Capacity allocated hereunder may not be sold or assigned to any other property whether or not owned by Developer. 26. Strict Compliance. Failure to Insist upon strict compliance of any of the terms, covenants, or conditions in this Agreement shall not be deemed a waiver thereof, nor shall any waiver of any right hereunder at any one time be deemed a waiver of such right at any other time. 27. Time of the Essence. Time is hereby made of the essence of this Agreement in all respects. 28. Entire Agreement and Incorporation by Reference. This Agreement constitutes the entire agreement of the parties and expressly supersedes all negotiations, previous agreements or representations whether verbal or written, and may not be amended In any way whatsoever except by a writing executed by both parties hereto in a manner equal in dignity to the execution of this Agreement; provided however, that documents for the implementation of this Agreement, including all. permits, engineering design :and construction contracts, plans and specifications for the utility facilities as and when approved and filed with City's Department of Public Utilities are incorporated herein by reference. 29. Bindinit Effect. This Agreement shall inure to the benefit of and be binding upon the heirs, successors, personal representatives and assigns of the parties hereto and shall constitute a covenant running with the Property. 30. Liability. I, for myself, the owner, the Developer and our successors and assigns agree to hold harmless and indemnify the City of Okeechobee, the City Council, its employees and agents from any and all claims, damages, causes of actions or other liabilities that arise out of or in relation to the Florida Department of Environmental Regulation denial of applicable permits to provide sewer service to the property. 31. Governing Law. This Agreement shall be governed by the laws of the State of Florida and the Ordinances, Resolutions and policies of City not prohibited thereby. The parties hereto stipulate that venue shall vest solely in Okeechobee County Florida, and that in no event sliall any dispute be submitted to binding arbitration. 32. Effective Date. This Agreement shall be effective upon proper execution by both parties hereto. 33. Counterparts. This Agreement may be executed in several counterparts each of which if properly executed by both parties shall be considered an original. 10 • • IN WIMM88 WHEREOF, the parties hereto haveaoaus i his Agreement with the named exhibits attached to be executed/ o the ',t,,day and year first above written. DEVELOPER WITHROSE0 s HCA REALTY, INC. By: DAVID J. `MAMM. JR. Title t VI PRESIDENT Attests AL) CITY CITY OF OKEECHOBEE ATTEBTt OKEEC80BEE, FLORIDA BY s City Cler Date: As authorized for execution by the City Council in their ,r 19 regular meeting. List of Exhibits to Utility Agreement for Water Service Between the City of Okeechobee, Florida and Exhibit Na[ne Section "A" Legal Description of Property . . . . . . . 2(m) "B" Survey of Property . . . . . . . . . . . . 2(m) "C" Schedule of Rates, Fees and Charges . . . . 6 "D" Warranty Deed . . . . . . . . . . . . . . . 11 (b ) "E" Bill of Sale . . . . . . . . . . . . . . . 1 1 (b ) "F" Easements . . . . . . . . . . . . . . . . . 11 (b) "G" Hydrant Resolution . . . . . . . . . . . . . 11(c) EXHIBIT A LEGAL DESCRIPTION: A parcel of land lying in Section 10, Township 37 South, Range 35 East, Okeechobee County, Florida. Being more particularly described as follows: Commence at the southwest corner of said Section 10, thence North along the West line of said Section 10, a distance of 1153.12 feet to the intersection with the South line of that parcel of land described in that particular quit claim deed recorded in Official Records Book (ORB) 309, page 447 of the public of Okeechobee County, Florida: Thence N 89-59-53 along said South line of parcel described in ORB 309, Pg. 447, a distance of 50.30 feet for the POINT OF Beginning of this description; Thence N 00-00-07 W, perpendicular to the preceding course, a distance of 150.00 feet to the intersection with the North Boundary line of said parcel described in ORB 309, pg. 447; Thence N 89-59-26 E. along said North boundary line, a distance of 377.77 feet to the northeast corner of said parcel described in ORB 309, pg. 447 as marked by a 3" round concrete monument; Thence S 00-00-44 E, a distance of 150.05 feet to the southeast corner of said parcel described in ORB 309, pg. 447 as marked by a 3" round concrete monument; Thence S 89-59-53 W along the aforesaid South line of ORB 310, pg. 299, a distance of 377.80 feet to the POINT OF BEGINNING. Containing 1.301 acres, more or less. • • EXHIBIT "C" Rates, Fees and Charges Developer agrees to pay the City of Okeechobee the following Fees to induce the City to reserve the following plant capacities for Developer's proposed connections within the "Property". Developer understands that plant capacities are only reserved upon payment of Charges by Developer to City. The fees set forth in the attached rate resolution are the fees in effect as of the date of this Agreement and are subject to changes in accordance with the terms thereof. Water Connection Fees Based on 2 - 1" Meters 2 - 1" Meter Connection Fees - $ 3,125.00 2 - System Capacity Fees - $ 3,125.00 2 - I" Backflow Preventers - $ 687.50 2 - Deposits - $ 1,562.50 Total $ 8,500.00 UTILITY AGREEMENT for SEVER SER VIC,S Section TABLE OF CONTENTS 1 preamble Title 2 Definitions• 3 Capacity A1locat . 4 ion, Agreement 5 to Serve Fees . 7 aYment of Fees. 0n-Site 8 Off- Installations, 9Procedures • , Site Installation. . • proroc eurea for Construction ' 10 Ponstruc ti on • Water Meters , °f Ins 11 tallations Title to Insta by Deve'llst llati°ns • . 12IOPeConstructed asements. . 13 Volulltary Anne 14 xation Mortgage Liens 15 Cityt s Exclusive usiye Right to Exclusive Right t© Y Facilities . 17 vide Service Rates, Service 18 Application 19 Installation$' for Service to Consumer• . 20 18h Strength Waste. Pretreatment 8 21 Water COn�•atioser8 22 n Effluent 23 Disposal.24 . Inspection$ -• 9 Relocation of Utility 25 Notices. Facilities g • 9 El p--&R.e 1 1 2 2 3 3 3 3 4 5 5 6 7 7 7 7 7 26 27 28 29 30 31 32 33 34 35 36 Cost and Attorneys' fees . . . . . . . . . . . 9 Interpretation . . . . . . . . . . . . . . . . 10 Assignment . . . . . . . . . . . . . . . . . . 10 Strict Compliance . . . . . . . . . . . . . . . 10 Liability . . . . . . . . . . . . . . . . . . . 10 Time of the Essence . . . . . . . . . . . 10 Entire Agreement Incorporation byReference . . . . . . . . . . . . . . . . 10 Binding Effect . . . . . . . . . . . . . 10 Governing Law . . . . . . . . . . . . . . 10 Effective Date . . . . . . . . . . . . . . . . 10 Counterparts . . . . . . . . . . . . . . . . . 10 ii UTILITY AGREEMENT for SEWER SERVICE THIS AGREEMENT is made and entered into this ,day of , 19 , by and between City of Okeechobee, a political subdivision of the State of Florida, hereinafter referred to as "City" and HCA Realty, Inc. (Developer's Name) HCA Raulerson ,hereinafter referred to as "Developer/Owner," a Corporation (Type of Organization) WHEREAS, Developer owns land located in Okeechobee County, Florida as described in Exhibit "A", and shown on the Survey in Exhibit "B", attached hereto (the "Property"), and Developer intend to develop the Property; and WHEREAS, Developer has requested that the City provide sewer service for the Property; and WHEREAS, the City is willing to provide sewer service to the Property and thereafter to operate the utility facilities so that the occupants of the improvements on the Property will receive sewer service from City in accordance with the provisions of this Agreement; NOW, THEREFORE, for and in consideration of the premises, the mutual undertakings and agreements herein contained and assumed, and the Sewer Agreement, Developer and City hereby covenant and agree as follows: 1. Preamble. The foregoing statements are true and correct. 2. Definitions. The following definitions of terms used in this Agreement shall apply unless the context indicates a different meaning: (a) "Application" - A request in writing on forms provided by City from Developer or a Consumer requesting pursuant to the Developer Agreement, specific sewer services. (b) "Connection Fees" - A fee or charge paid to the City Utility Department by a Developer/Applicant for the purpose of obtaining sewer service capacity. Connection fees will be utilized for the operation and maintenance of the sewer collection system and to pay for related services to the property. (c) "Consumer Installation" - All facilities ordinarily on the consumer's side of the point of delivery (e.g. curb stop, lateral connections.) (d) "Contribution -in -Aid -of -Construction (CIAC)" - The sum of money and/or the value of property required as a prerequisite to service to the Property. (e) "DER" - The Florida Department of Environmental Regulation, or its successor agency. 1 0 0 P /,(,e. (f) "Development Phase" - A subdivision or construction phase of the construction of utility facilities on Property. (g) "ERC" - A factor used to convert a given average daily flow (ADF) to the equivalent number of residential connections. (h) "Facilities" - See Utility Facilities. (i) "GPD" - Gallons per day. (j) "Installation" - See Utility Facilities. (k) "Consumer's Point of Delivery" - Unless otherwise specified herein, the point where the sewer service is connected to the consumers' service lateral, which shall be, where possible, at the consumers' property line. (1) "Developer's Point of Delivery" - The point where the sewer service enters the Developer's Property or the point of connection of Developer's off -site installation to the City's system pursuant to Section B. (m) "Property" - The land described in Exhibit "A" attached hereto. (n) "Service" or "Utility Service" - The readiness and ability of the City to furnish and maintain sewer service to the point of delivery. (o) "Service Rates" or "Rates" - The City's existing and future schedules of rates and charges for sewer service, including connection fees, meter set fees, and all other fees and charges which from time to time are in effect pursuant to ordinances, resolutions or policies adopted by City. The schedules of Service Rates shall be of general and uniform application within the City-wide water and sewer utl:L.Lty system. (p) "Utility Facilities" or "Facilities" or "Installations" - Utility facilities means and includes all equipment, fixtures, pumps, lines, mains, manholes, lift stations, pumping stations, laterals, service connections, and appurtenances together with all real property, easements and rights -of -way necessary to provide sewer service to the Property whether located on -site or off -site. The words "Utility Facilities," "Sewer Facilities," "Facilities," or "Installations" shall be interchangeable unless otherwise indicated by the context. 3. Capacity Allocation. The parties agree that the capacity needed to provide service to the Property is 2,300 gallons per day for sewage collection. Capacity allocation is subject to the Florida Department of Environmental Regulation (Section 403.021, Florida Statutes, and FAC 17-4.07 and 17-4.15) and approval of applicable permits for the property. Should the Florida Department of Environmental Regulations refuse to issue applicable permit(s) solely because capacity is not available, the Developer may request - City to rescind the allocation of capacity. Developer agrees that the gallonage calculation to determine capacity is for the purpose of allocating capacity for the Property and not for purposes of any other calculations. 4. Agreement to Serve. Developer agrees to commence u construction within 6 months frotthe date of acceptance by the city, and agrees to complete construction and obtain all necessary permits, certificate of occupancies and other licensing requirements within /f ^owr.+s Failure to meet this 2 time frame will not obligate the city to refund any portion of fees paid, nor shall city pay any interest on the fees paid. The city reserves the right- to recapture capacity allocations for failure of the Developer to meet the time frame conditions. Upon the completion of construction of sewer facilities by Developer, satisfactory inspections, the issuance of the final letter of acceptance by City, and subject to the other terms of this Agreement, City agrees to permit connection of the sewer facilities installed by the Developer to the central. facilities of City and to provide utility service in accordance with the terms and intent of this Agreement-. Such connections shall at all times be in accordance with rules, regulations and orders of the applicable governmental authorities. City agrees that once Developer or others have connected consumer installations to City's central facilities, City will continuously provide sewer service to the Property subject to continued compliance by Developer or consumer with all applicable City requirements for such service, excepting unavoidable disruption of service due to repairs, maintenance, etc. 5. Fees. In addition to the Contributions in Aid of Construction (CIAC) where applicable, Developer hereby agrees to pay to City all applicable Fees in accordance with the schedule from time to time in effect. Payment of the Fees will not excuse Developer from payment of any other charges uniformly made including meter fees. City shall not be obligated to refund any portion of Fees paid, nor shall City pay any interest on the Fees paid. Should the Florida Department of: Environmental Regulation refuse to issue the applicable permit(s) solely because capacity is not available, refunds of the fees will be made by City within thirty (30) days from such written notification from DER of its denial. Such requests to City for refunds must be accompanied by a written request from Developer that the capacity allocation be rescinded. Developer shall be obligated to pay Fees in the amount in effect at the time Developer is required to pay the Fees, or any initial portion thereof. No user or consumer of sewer service shall be entitled to offset any bill rendered by City for such service against Fees paid. Developer shall. not be entitled to offset Fees paid or payable against any claims of City. 6. Payment of Fees. Developer will be required to pay the fees at the time sewer capacity is allocated in accordance with Exhibit "C" attached hereto. Failure to pay the fees by will result in termination of this Agreement and the recapture of capacity allocation. A monthly sewer service charge will be assessed for each remaining unit which has not been transferred to a consumer after one year from the date sewer capacity was allocated or at the time of building permit Issuance whichever occurs earlier. Rates and fees are subject to change from time to time by the city council, and the initial rates and fees charged shall not be construed as a contract over the life of the project. 7. On -site Installations. To induce City to provide service to the Property, Developer agrees to construct and to transfer ownership and control to City, as a contribution -in -aid - of -construction, the on -site sewer facilities constructed by Developer or located on the Property. The term "on -site installations" including lift or pumping stations, from the Developer's Point of Delivery to the Consumer's Point of. Delivery, exelnding consumer's installations, adequate in size and design to serve each lot or unit within the Property or as otherwise required by City. Developer shall install at Its sole expense, all of the aforesaid facilities within the Property in accordance with the plans, specifications and all other pertinent documents approved 3 F the City and in accordance with Section 9, "Procedures for Construction of Installations" hereof. 8. Off -site Installation,. To induce City to provide service to the Property, Developer agrees to construct and to transfer ownership and control to City as a contribution- in -aid -of - construction all necessary off -site installations from Developer's Property to the City's existing facilities. The term "off -site installations" means and includes all gravity sewer lines, lift or pumping stations, force mains and related facilities adequate in size and design to serve the Property or as otherwise required by City. Such off -site installations shall be in accordance with the master plans of the City as they relate to the City-wide water and sewer utility system. Developer shall install all of the off -site installations at its sole expense and in accordance with the plans, specifications and other pertinent documents approved by City except that in no event shall Developer be required to oversize lines to the benefit of other properties without prior agreement for reimbursement on behalf of such other properties. Developer shall construct the off -site installations in accordance with Section 9, "Procedures for Construction of Installations" hereof. 9. Procedures for Construction of Installations,. Developer agrees that construction of all on -site and off -site installations as defined in Sections 7 and 8 respectively, shall be in accordance with the following requirements: (a) Permits. Developer shall submit applicable DER permit applications to City for signature prior to submission of permit application to DER. Developer shall make application to City for Underground Utility Permits and any other applicable permits such as Right -of -Way Use Permits or D.O.T. Permits upon receipt of an approved permit from DER. (b) Plans and Specifications. Developer will furnish City with three (3) sets of all plans and specifications (Plans) for the installation to be constructed prepared by a registered professional engineer. The Plans shall be prepared in accordance with applicable City Ordinances and policies including the Land Development Code, Manual of Minimum Standards For Design, Construction and Maintenance for Water and Wastewater for connection to City -owned utilities. Developer shall obtain approval of the Plans from all agencies having jurisdiction including the Department of Environmental Regulations, Okeechobee County, and City, if applicable, and submit to City one (1) copy of any construction permits. No construction shall commence until the City and appropriate regulatory agencies have approved such Plans in writing and the City has received copies of the construction permits. If construction commences prior to all such approvals, City shall have no responsibility to accept any of the installations and City may elect to terminate this Agreement or withhold service until such time as Developer has obtained all required approvals. Should Developer wish to record the plat of a subdivision prior to construction of any installation, Developer shall post a performance bond or an irrevocable letter of credit which is 110% of the cost of construction of the installation. (c) Pre -construction Conference,. After securing all permits and approval of Plans by City and the other agencies, Developer or the engineer of record shall set up a pre -construction conference with the engineer of record, utility contractor, the appropriate building officials and the City. (d) Notice to Citv. Developer shall provide to City not less than forty-eight (46) hours written notice prior to commencement of construction, and as -built surveys shall be submitted seven (7) days prior to final inspection. Developer shall provide to City forty-eight (48) hours notice, which may be either written or verbal, prior to any inspections or tests (other 4 F than final inspection) being performed as described herein. Notices shall be deemed given upon actual receipt of same by City. (e) Inspections and Tests. During construction of any installation by Developer, City shall have the right to inspect such installation, including but not limited to the materials, equipment, piping and connections to determine compliance with the approved Plans. The engineer of record shall also inspect construction to insure compliance with approved Plans, permits and other applicable requirements. All standard tests and inspections for pressure, exfiltration, line and grade, and all other engineering tests and inspections shall be performed with the engineer of record and utility contractor present to determine that the systems have been installed in accordance with the approved Plans, permits and good engineering practices and are functioning satisfactorily for the purpose for which the installation was designed. It shall be the Developer's responsibility to insure that all construction and the installation fully meet approved Plans, permits and applicable requirements of law and, upon completion, that the installation functions satisfactorily for the purpose for which it was designed. (f) Completion. Upon completion of construction, Developer's engineer of record shall submit a signed certificate of completion certifying to City that the construction of the installation is complete, that the installation has been constructed in accordance with all permits, approved Plans, and applicable requirements of law, and as constructed, it will function for the purpose for which it was designed. (g) As Builts and Other Plans. At least seven (7) days prior to final inspection, Developer or his engineer shall also provide City with one (1) set of ammonia mylars of the "as - built" surveys prepared by the engineer of record showing the location of all installations as constructed. Developer will provide City with two (2) sets of approved paving and drainage plans and three (3) copies of the recorded subdivision plat. Developer will provide proof satisfactory to City that the installation and all contractors, subcontractors, materialmen and laborers have been paid in full together with the engineer's certificate of the total cost of the installation. 10. Water Meters. A water meter or meters necessary to serve the Property shall be installed by Developer at L•he Developer's Point of delivery. City will designate the number, type, quality and size of said meter or meters. The water meter or meters and enclosures are to be installed by the Developer prior to final City inspection. The cost thereof and associated labor charges shall be paid by Developer prior to installation at the then current rates charged by City. All water meters and enclosures shall remain the property of City. The Developer shall also be responsible for the installation of a back flow prevention device to be installed on the consumer side of the meter. 11. Title to Installations Constructed by Developer. As a condition precedent to the right to connect the on -site installations and any off -site installations to City's Utility System, Developer shall convey title to as much of those installations, including real property, easements and rights -of - way as are required by city in accordance with the following: (a) Compliance. Developer shall be in compliance with this Agreement. (b) Time and Place of Conveyance. Unless otherwise agreed upon in writing, conveyance shall be made when the City is prepared to issue its letter of acceptance to Developer and commence delivery of service to the Property. Upon completion of the installations, Developer shall deliver the necessary instruments of conveyance, properly executed, in substantially the 5 same form attached hereto as Exhibit "D" (Warranty Deed), Exhibit "E" (Bill of Sale), and Exhibit "F" (Easements), together with funds sufficient to pay all costs of conveyance and recording. Delivery shall be made to the City's Director of Public Utilities at the address shown herein for delivery of notices. Acceptance of the conveyance by the City shall not become final until the City Council duly accepts same. Upon a vote to accept conveyance by the City Council, the instruments of conveyance will be recorded in the public records of Okeechobee County. The City will issue its letter of acceptance to Developer and City's obligation to provide service in accordance with this Agreement shall. commence. (c) Assurance of Title. Developer shall at its expense deliver to City a title insurance policy or an opinion of title with respect to the Property confirming Developer's legal right to grant the deeds, easements and exclusive rights of service contained in this Agreement as a condition precedent to City's issuance of a letter of acceptance or delivery of service. (d) Conveyance. Developer shall convey all of its interest in the installations to be conveyed to City by Warranty Deed, Bill of Sale, Easements, Endorsement, Assignments, Affidavits of No Liens and other good and sufficient instruments of transfer and conveyance, including necessary permits, as shall be effective to vest in city good and marketable title to the installations free and clear of all liens and encumbrances. Transfer of all manufacturers' and contractors' warranties, maintenance bonds and construction contracts shall be conveyed by unconditional assignment by Developer. Developer shall remain secondarily liable on such warranties and hereby agrees to indemnify and save harmless the City from any losses, damages, costs, claims, suits, debts or demands by reason of latent defects in the Installations which could not have been reasonable discovered upon normal engineering Inspection, for a period of two (2) years from the date of acceptance by the City of said utility installations. (e) Maintenance Bond. Developer shall provide the appropriate maintenance bonds required by the Land Development code and the Water and Sewer Guidelines in effect at the time of conveyance. (f) Manuals. Developer shall provide City with all operation, maintenance and parts manuals necessary for the operation and maintenance of the installations. 12. Easements. Developer hereby grants to City, subject to the terms of this Agreement, the exclusive right to construct, own, maintain and operate water and sewer facilities to serve the Property; and the exclusive right to construct-, own, maintain and operate said facilities in, under, upon, and across the present and future streets, easements, reserved utility strips and utility sites, and any public place as provided and dedicated to public use in the record plats, or as provided for in agreements, dedications or grants made otherwise and independent of said record plats, and these restrictions duly noted on any conveyance of lots or units to subsequent purchasers. Developer hereby further agrees that the foregoing grants include the necessary right of ingress and egress to any part of the Developer's property upon which County is constructing or operating utility facilities. The foregoing grants shall continue for as long as County requires such rights for the construction, ownership, maintenance, operation or expansion of the facilities. Developer, upon request- of City, shall execute recordable easements acceptable to City to carry out the purposes of this paragraph. F 2 • • The parties agree that in the event Developer and city agree to install any of the facilities in lands within the Property lying outside the streets and easement areas described above, then Developer or the owner shall grant to City, the necessary easements for such "private property' installation. Subject to City's prior written consent, the use of easements granted by Developer to City shall not preclude the use by other utilities of these easements, such as cable television, telephone, electric, or gas utilities, provided each does not interfere with City's use thereof. City hereby agrees that all easement grants will be utilized in accordance with generally accepted practices of publicly owned water and sewer utilities with respect to the Installation of all its facilities in any of the easement areas. 13. Voluntary Annexation. Developer agrees that in the event Developer's property becomes contiguous to the City's boundary, as such term is defined in the laws of the State of Florida, then this agreement, together with the application for service and all exhibits, shall be considered as application for voluntary annexation of Developer's real property into the corporate limits of: the City of Okeechobee. The terms of this agreement shall run with the land and subsequent purchasers of lots or units shall also be deemed to have applied for voluntary annexation as provided herein. 14. Mortgatte Liens. Mortgagees, if any, holding prior liens on the Property shall be required to release such liens, subordinate their positions or join in any conveyance, grant or dedication of the easements or rights -of -way, or give to City assurance by way of a "non -disturbance agreement", that in the event of foreclosure, mortgagee would continue to recognize the ownership and easement rights of City, as long as City complies with the terms of this Agreement. All facilities, save and except consumer installations, shall be covered by easements or rights - of -way if not located within platted or dedicated roads or rights - of -way for utility purposes. It shall be Developer's obligation to gain these assurances from the mortgagee and present same to the City. 15. City's Exclusive Ristht to Utility Facilities. Developer and City agree that all sewer facilities accepted by City in connection with providing service to the Property shall at all times remain in the sole and exclusive ownership of City. Any person or entity owning any part of the Property or any residence, building or unit constructed or located thereon, shall not have any right, title, claim or interest to such facilities for any purpose, including the furnishing of sewer services to others located within or beyond the limits of the Property. 16. Exclusive Rittht to Provide Service. Developer, shall not engage in the business of providing water or sewer services to the Property. Developer hereby grants City the sole and exclusive right to provide sewer services to the Property and to the occupants thereon. 17. Service Rates. The rates to be charged by City to the Developer or to a consumer for sewer service on the Property shall be those rates charged by City to its other customers pursuant to service rates from time to time in effect as defined herein. City reserves the right to withhold or disconnect service at any time the service rates are not paid on a current basis within 25 days after the same are billed. Developer or consumer, as the case may be, hereby agrees to save and hold harmless City for any loss or damages resulting from the exercise of this right. 7 The service to the Property shall be subject to such other regulations from time to time imposed on City with respect to the operations of its water and sewer systems, and except as limited by such regulations, the amounts of utility deposits, billing practices and times, liability for damage to City's Property and rate changes shall be exclusively within the discretion and control of City. 18. Application for Service to Consumer Installations. Developer, or any owner or occupant on the Property (consumer) shall not connect any consumer installation to the facilities of City until application has been made to City by the Developer or consumer and approval for such connection has been granted. Developer or consumer shall be responsible for connecting the consumer installation to the meter and/or lines of City at the point of delivery in accordance with the following requirements: (a) Application for the installation of water meters and backf low preventors shall be made twenty-four ( 24 ) hours in advance, not including Saturdays, Sundays and holidays. (b) All consumer installations may at City's sole option be inspected by City before backfilling and covering of any pipes. (c) Written notice to City requesting an inspection of a consumer installation may be given by the Developer, the consumer or his contractor, and the inspection will be made within twenty-four (24) hours, not including Saturdays, Sundays and holidays, provided the water meter and backf low preventor, if applicable, have been previously installed. (d) Developer or consumer may not backf ill or cover the pipes without City's inspection and approval. (e) The cost of construction, operation, maintenance, repair or replacement of consumer installations shall be the responsibility of Developer or consumer and not the City. (f) Should any non -domestic wastes, grease or oils, including, but not limited to, floor or abnormal strength wax or paint, be delivered to the lines, or other prohibited substances as defined in the Code of Ordinances, Chapter 18, Section 18-64, the Developer or Consumer will be responsible for payment of the cost to correct or repair any resulting damage to the treatment process and/or facilities. 19. Hiah Strength Waste. The Developer agrees that waste or sewage to be treated by City from the Property will consist of domestic wastewater, and further agrees that it will not allow any abnormal strength sewage to flow to the Utility Facilities. Developer grants to City the right to sample sewage from the Property to verify Developer's compliance with this paragraph. Developer will pay the cost of sampling and laboratory testing. 20. Pretreatment. Developer agrees that City has certain obligations to protect the health, safety and welfare of the public and not to burden City's customers with extraordinary expenses attributable to Developer, his successors or assigns. Developer agrees that all sewage or wastewater from Property shall conform to City's standards prior to introduction into City's collection system and Developer further agrees that City may at City's sole option require pretreatment or special features such as grease traps to insure such conformity. Developer shall be responsible for all costs associated herewith. 8 21. Water Conservation. Developer agrees to employ water conservation measures in' development- of the Property. Subject to City review and approval to encourage water conservation, such measures shall include but not be limited to: (a) Installation of low flush toilets which utilize 3.5 gallons or less of water per flushing cycle. (b) Installation of shower heads which have flow restrictors, pulsating features, flow control devices or other features which result in water conservation; and do not allow a flow exceeding 3.0 gallons per minute at 60 psi. (c) No swimming pool filter backwash water, or any other swimming pool wastewater shall be discharged to the sanitary sewer system. (d) Installatlon of spring-loaded/automatic shut- off water fixtures in all public restrooms, including lavatory fixtures. 22. Effluent Disposal. it is possible that the City may not have sufficient effluent disposal capacity available for the disposal of sewage from the Property treated by it at its sewage treatment plant. The Developer agrees to provide City, at City's request and at no cost to City, the use of the Property, or other areas as designated within the Property, for effluent disposal. The Developer shall provide City with perpetual easements for the use of said Property for such purpose. 23. Inspection. City may, at its option and without notice, inspect Developer's utility facilities at all times whether before or after completion of construction and acceptance of same by the City. City, by inspecting or not inspecting to any extent whatsoever, shall not assume responsibility for construction or installation of developer's utility facilities and shall in no way be deemed to waive any rights available to City for defaults on the part of Developer, or to consent to any defects, omissions or failures in the design, construction and installation of Developer's utility facilities. 24. Relocation of Utility Facilities. Any relocation Of utility facilities required for Developer's convenience or necessity shall be done at Developer's expense provided such relocation can be accomplished without adverse impact on any other part of the facilities or other consumers. 25. Notices. Any payment or notice required or permitted hereunder shall be in writing and be deemed properly made (a) when hand delivered to the official hereinafter designated, or (b) upon actual receipt when deposited in the United States mail., postage prepaid, addressed as set forth herein, or at such other address as shall have been specified by written notice to the other party delivered in accordance herewith: City: Director of Public Utilities 55 S.E. 3.rd Avenue Okeechobee, Florida 34974 Developer: HCA Realty, Inc. HCA Raulerson P.O. Box 1307 Okeechobee, Florida 34973 7 26. Cost and Attorneys' Fees. In the event City or Developer brings an action to enforce this Agreement by court proceedings or otherwise, then the prevailing party shall be entitled to recover from the other party all costs incurred, together with reasonable attorneys' fees. 27. Interpretation. Developer and City agree that all words, terms and conditions contained herein are to be read in concert, each with the other, and that a provision contained under one heading may be considered to be equally applicable under another in the interpretation of. this Agreement.. 28. Assignment. This Agreement may not be assigned by Developer without the prior written consent of City, which shall not be unreasonably withheld provided Developer's successor or assign expressly assumes Developer's obligations hereunder by execution of this Agreement. Capacity allocated hereunder may not be sold or assigned to any other property whether or not owned by Developer. 29. Strict Compliance. Failure to insist upon strict compliance of any of the terms, covenants, or conditions in this Agreement shall not be deemed a waiver thereof, nor shall any waiver of any right hereunder at any one time be deemed a waiver of such right at any other time. 30. Liability. I, for myself, the owner, the Developer and our successors and assigns agree to hold harmless and indemnify the City of Okeechobee, the City Council, its employees and agents from any and all claims, damages, causes of actions or other liabilities that arise out of or in relation to the Florida Department of Environmental Regulation denial of applicable permits to provide sewer service to the property. 31. Time of the Essence. Time is hereby made of the essence of this Agreement in all respects. 32. Entire Agreement and Incorporation by Reference. This Agreement constitutes the entire agreement of the parties and expressly supersedes all negotiations, previous agreements or representations whether verbal or written, and may not be amended in any way whatsoever except by a writing executed by both parties hereto in a manner equal in dignity to the execution of this Agreement; provided however, that documents for the implementation of this Agreement, including all permits, engineering design and construction contracts, plans and specifications for the utility facilities as and when approved and filed with City's Department of Public Utilities are incorporated herein by reference. 33. Binding Effect. This Agreement shall inure to the benefit of and be binding upon the heirs, successors, personal representatives and assigns of the parties hereto and shall constitute a covenant running with the Property. 34. GoverninsL Law. This Agreement shall be governed by the laws of the State of Florida and the Ordinances, Resolutions and policies of City not prohibited thereby. The parties hereto stipulate that venue shall vest solely in Okeechobee County, Florida, and that in no event shall any dispute be submitted to binding arbitration. F 10 I k 4i 35. Effective Date. This Agreement shall be effective upon proper execution by both parties hereto. 36. Counteroarti. This Agreement may be executed in several counterparts each of which if properly executed by both parties shall be considered an original. im 1 amass i1HEREOF, the parties hereto have caused this Agreement with the named exhibits attached to be executed on the day and year first above written. %TITNB88D8s DEVELOP R FICA W, INC. BY: r DAVID J. MA10NE, JR. Title s VICE DENT Attests ,(SNAL) ATTEM CITY OF ORBBCROBBE e OREECHOBEE, FLORIDA City Clerk p Dater U As authorised for execution by the City Council in their , 19 r regular meeting. List of Exhibits to ,Utility Agreement for Sewer Service Between the City of Okeechobee, Florida and Exhibit Name Section "A" Legal Description of Property . . . . . . . Preamble "B" Survey of Property . . . . . . . . . . . . Preamble "C" Schedule of Rates, Fees and Charges . . . . 6 "D" Warranty Deed . . . . . . . . . . . . . . . 1 1 (b ) "E" Bill of Sale . . . . . . . . . . . . . . . 11 (b ) "F" Easements . . . . . . . . . . . . . . . . . 1 1 (b ) EXHIBIT A LEGAL DESCRIPTION: A parcel of land lying in Section 10, Township 37 South, Range 35 East, Okeechobee County, Florida. Being more particularly described as follows: Commence at the southwest corner of said Section 10, thence North along the West line of said Section 10, a distance of 1153.12 feet to the intersection with the South line of that parcel of land described in that particular quit claim deed recorded in Official Records Book (ORB) 309, page 447 of the public of Okeechobee County, Florida: Thence N 89-59-53 along said South line of parcel described in ORB 309, Pg. 447, a distance of 50.30 feet for the POINT OF Beginning of this description; Thence N 00-00-07 W, perpendicular to the preceding course, a distance of 150.00 feet to the intersection with tine North Boundary line of said parcel described in ORB 309, pg. 447; Thence N 89-59-26 E. along said North boundary line, a distance of 377.77 feet to tine northeast corner of said parcel described in ORB 309, pg. 447 as marked by a 3" round concrete monument; Thence S 00-0044 E, a distance of 150.05 feet to the southeast corner of said parcel described in ORB 309, pg. 447 as marked by a 3" round concrete monument; Thence S 89-59-53 W along the aforesaid South line of ORB 310, pg. 299, a distance of 377.80 feet to the POINT OF BEGINNING. Containing 1.301 acres, more or less. • • EXHIBIT "C" 41! Rates, Fees and Charges Developer agrees to pay the City of Okeechobee the following Fees to induce the City to reserve the following plant capacities for Developer's proposed connections within the "Property". Developer understands that plant capacities are only reserved upon payment of Charges by Developer to City. The fees set forth in the attached rate resolution are the fees in effect as of the date of this Agreement and are subject to changes in accordance with the terms thereof. Wastewater Connection Fees 4" Wastewater Connection Fee - $ 382.00 15 Wastewater System Capacity Fees - $ 8,606.25 Total $ 8,988.25 APR 16 '93 14:17 KNEW"WILLARD INC AAAAAAAAA • P . 2/9 Knepper&Willard, inc. evil . �r,�r�� 'rnc:•�r;::l F:nc r,t:Fr:: April 16, 1993 John J. Drago City Administrator City of Okeechobee 55 S.E. Third Avenue Okeechobee, FL 34974-2934 Re: 1992 Road Improvements, PW-04-00-08-92 K&W Proj. No. 7213•-91 Dear Mr. Drago: Enclosed is Application for Payment No. 4, submitted by Better Roads of Lake Placid, Inc. for the referenced project. We have reviewed this pay request and find that it fairly represents the work completed to date. Therefore, we recommend that payment be made to the contractor, in the amount of $35,026.20. If you have any questions, please contact us. Very truly yours, KNE R & WILLARD, INC. a4 Daniel S. Willard, P.E. cc: Chuck Elders 3030 N. Rockv Point Drive West Hillsborough (813) 281-0120 Suite 570 Pinellas (813) 821-3291 Tampa, Florida 33607-5905 FAX (813) 281-1156 APR 16 ' 93 14 17 k:NE R �W �LLA� L� n AAAAAAAA BETTER R4..6 LP POI mHF11W i+.e R0. 1 AMUCAnM yM &JAWT No. Four (k) To CITY 07 M:$jj. 7pjt �,A (OWN CosYtaat for 1942 3W D mVzmms OWNER'S Canuscs No. X-04-00008-43 „�._.., . I iiNEI S�� Psgiect 3rio. 7212-91 fm Work s 000rnpltshed thro O ft date of j ltit CONT3A=1Vs Shc+ad* of Wm Work CataplmW $ s 17 S A. UBMW. 1 XIST RCAk1 - - S ATTACUD P s + SGETOTAL A 61, 761.1. A. IMCOiST. fX13T. RD - .- ATTACM S _ _ SUBTOTAL B. 420561.04 C. MAD CDNST. • - 3 ATTACM P XS - - StMTOT.. C 156, 258.04 T09W $ S260, %SO.: (Qrf3. Caese=) GSA 140. J QQ No, 3 Acr=pwyi8; Boctu atity►: �mLLT..P(6 r TTAY GROSS AMOUNT OUR .................... S 260, 580. 3 LEU 0 RSTAjxAGE ................ $ Lb' uDd . u )6MOUTNT DtM "ILA MCE S 244 zz . 2 99 i :)' JIMOt W Lip --".US A CA'nON ..... S M , 07h. A CC}.JVrAAC1'OR'S CMificUidn. TM undmipkd CONTRt rOrMt certft that: (1) ad pteviosts pmwm jayments received from OR'IrtER on sceoun! urx acne ur.Cer :::s C::.;..r rdafflut Lv wwiubeen #tied to discttu36 in ttsli RII oblioons of CONTRAC T01t iarurrra in coaneatfon with Worn owmed by prior Applia� for Pltymont mas Wmd I through h vs; M two to au work, mf!:A ws ad sgwpami is oarporatad is said Work or tsttttsrwile tilted In or covered by this AppOesdan fbr Phynow witl pan to OWNER a time dpaymm fret sad deer of ail liens. CAm ssmuity istrmM and 4s>a ImfirAgrAs (each swb as am wvwW by Boad weeptable to OWNER indemntfWnR OWNER spinet any mob lien, dairit, s wiW inmerest or bramr); Led (3) all Work covered by UAis ApplicadaA for Paymstrt is in secordance with tlta Catttr= D=ummu and aor dttrcrive Ls that term is def nw in the Caettsyct Docu tm`7 m Dated �'` E �_, . 19'� CONMR , (Audm ized Sip mum) ; ��n.+••� .::.i,Q aoove AMOUNT DL:F- THIS APPLIGTION is reG sided n _ _ Le I •r 413 Jz 1.11.�..1 Aohm FOR PAYMENT NO. ntr Bf>ftt Reads of L & Plecid, Inc. am aEScl A RESURFACING EXISTING ROADS N.W. IWA Aft, from &.R. TO to Gib SL 6 Type 11f 56# Asph. Cone Leveling Course 10 1 1►4" Asph. C m Type S-1 Mod. Surface Cows* &'W. ImSZ kam so Avg. lo"Am. 4 Type rft50 AWx Cork- Leveliwo Course to 1 1t4' Asptt. Cam Type S-1 Mad. Surface Course Cls W. m Aft. boar a Parrs SL I* eft, SL I a 7 Type 1117511 AWL CA;im Levelhp Course 10 1 114* Aspht Cons Type S-1 Mod. Surface Cau,-rae L' N.W. cosh Am. b.fam fllhsurd 120k SL '-' 116 i UCAspih. Coec. Type S-1 Mod &WamCotvse CE S.E WIh St btlo m r 30 tk. and SM Av►. H 10 1 IW Adph. Corn. Type S•1 Mod Suilace Course 05 �CL � ILL Nk Dr. boo lwean 1M SL and 141h CL z10 1 1G4' Asph. Cont. Type S-1 Mod. surface Co~ S.W.12e! 8L br/nein 3rd Aw. surd 2nrf A1w T! 1Q 1 114' Asph. Cone. Type S-1 Mod. Surface Course PAGE SUBTOTAL nMM "A" TOTAL a a 1"2 ROAD IMPRONEAE;NTS CUT OF OKEEiCHOBEE, FLORIDA CCWrP = P111 VK= PEr4W Tm l ma TW*L TO RATE aeMAITrir um AAIOMlr OWW"mr AMOUW CIfGtNT" AVOW MUM ANDuti Pf11Gf i lie TH $ 42.70 i 4,M.20 63.21 2,699.07 •3 C, 4,626 SY 2.60 12,027.60 4, 5b9.0 11, 879.40 0 0 i, %9.0 11,879.40 44 Thl 4270 1.878.00 42.08 13,796.82 0 0 42.C8 107%.82 1,S79 SY 2" 4,515.91 13,792.0 5,L25.12 0 0 1,792.0 S,,. a12 157 IN 4z70 6,703,90 174.2 7,438.34 0 0 174.27 7,438-34 4.100 SY L60 10,001.40 4,159.0 101,891.40 0 0 41,189.0 I09891.40 Z914 Sy 2.60 7,576.40 2,894.0 71,524.40 0 C 2,894.0 7,524.40 Sig SY 264 2.129.40 833.0 2 ,165.80 0 0 833.0 2,1+65.80 304 Sir 2.80 10,09a.40 3,895.0 30,127.0 0 0 3,895.0 10,127.00 740 SY 2.60 1.924.00 813.0 2.1 3.80 0 10 813p 2 _ 111 3; BD t sm-w 61 7761.15 bl . Z62.L5 $ 62.690-01 , 61, 761.15 61.0761.15 zTK?N fiOR PAY�NT it4 Bsger Roads a# laloe PJatid: lnc. 1"2 ROAD WROVENEK1 B CRY OF OKBWWWE, FLORMA COKYRACT PREVX Mi PEMM im PE-mm TOTAL, TO DATE `L t?Es8CR1P':10N GUANn" tw AMOUNT OUANt1ITY AI/O MT t31lNWITY AIKUff QUAsn" AMOUNT PRm B RECONSTRUCTION OF EXISTING ROADS i S.W. SO Av& Itsonaoo wh and 156 SIB 2 Shoulder Gr. a Cow I Siee Realwaftm t Grmm a !Ands 2.we SY 1.00 2,806.00 2,SCf8_0 29,£+05.0 2,80i8.0 2,808.00 3 V. Smb tart S44prads Wisterial "R 401 5,350 SY 2.04 /6,1"a00 5,330.0 tO,914.00 S,38W) 10,914.00 4 6112• ShW DOW Mase" {L8 R 10d} 5,129 SY 3 4* 17,43s 60 41129.0 16 , 758. 60 4 ,929.0 16, 758. 60 a 1 1/4' Aq*. Cam. Type S-1 Swtace Course 4.918 SY 2.80 12.70.90 1 , fi56.0 2,195.20 41856.? 2,185.20 ` f F ammal of Exiattrg Pavement 4,114iS SY 0.45 2,186.20 12 SO* Preparation Earthwork & Grad ro 5,350 SY 1.00 s 3r000 5,350.0 5,350.0 5,MD.0 52,3 .00 , fcr S.W_ zed Ave. bet+aaan 10tlh sat 31kssl C 2 ShcuVw Gr. t Conp. I fte Rsaoaraion I Grass b MMM 243 SY 1.00 24100 243.0 243.0 243.0 243.00 2 3 t7' Stsblasd Subprade %laserM (LSR 401 379 SY 2.04 7nl* 379.0 773.16 379 0 773.16 Q 4 6117 SAsff gas* MAN" (LOR 100) "a SY 3AO 1,217.20 358.0 1,217. 20- 358.0 147.20 r� a 1 ?t4' AWL Cores. Type $a Soda* Coume 750 SY 2.96 2,246.64 759.0 2, 240.64 759.0 :,246.64 z 11 Regal of Existing Pavemem 145 SY 0415 LS25 1,45.0 65.25 145.0 65.25 w PAGE SUBTOTAL ; 56,02785 - 1i,8{3�?. 42, 561.06 H 3 ITEM "B" TOTAL S 56.027 ea 7-2, 751.4 5 19,80960 42, 561.06 06 w W T Y tT fri .D Q VAT*N FOR PAYKEWr NO 1992 ROAD BiIPROVE9 ft5 Bed Rands Lam Placid. h1r. CBY OF OKEECHOBEE, FLORIDA a• t3DiilMC'T Pf&,VW z P1:11tw im TOTAL TO DATE rEM DESCMPIM DUAtiN" UNIT ANQUlfi CAL*AWTM AtAWJW GUAWWff AMOUNT aumo 3Y AMOUNT PRICE C VIEW ROAD CONSTRUCTION H.W. 2" Ave. bst+neewMh WA 4* Sl. 1 Site Pr9pGcwWyRfAWCompact Stabfize Subgrade (LBR 4% 2.762 SY 456 1.601.96 21,607.65 11512.44 21,E1.65 1,512.44 • z shoulder Car. s corn,. J site Reawaftn i usa:s A wurch f,220 SY 1.00 1,220-00 1,220.0 11220.0 11220.0 1,220.00 5 812' Sbell Base Malerial (LOR 100) 2,700 SY 4.40 11."o.04 2,565.00 11,28640 0 2, �ti5.00 11, 286.00 D t 11rAsph. cam Type S-1 Sumacs Course 1 2,511 SY 320 8.355.20 2,620.00 8,384.00 2,620.c7C 8, 384.c1<) 1[Nt.3rd � #site?esw 3M and 41h 61. cl i S#e Pr SgtbW" Subgrrtde (L8R 40) 807 SY 0.76 613.32 779.30 592.27 779.3C 592.27 cl 2 Shoulder G. A Camp. t 5lle Ftesmrsion 1 Cues A lHblch 3" SY 1.10 19020 39C . 0 0.20 390.flC 460.20 CE cl 4 612- SNal1 Base Maf srial (LOR 1010) 771 SY St 2,750.18 774.50 2,772.71 774.5C 2,772.71 Cl Q a t 1/4' Asph. Car e. Type s-1 Sudace Course 925 SY 2.n 2.543.75 829.0 2 , 279. ; 5 829.0 2, 279.75 v H N.E 2nd Aw, betw000 and end 511E 9t 1 Sde etpom SUMbe Subgrule (LBR 40) 1900 SY oss 1.106" 1, 822. 80 1, 057_22 1,822.8C 1, 057.22 ? ShoulWr Or_ i Comp. I Site liveloratiOrt J Grass A Muttd: s118 SY 1.00 916A0 518. 0 918.0 918.0 918.0c. 3 0 a uz- S1tes Besse Ma lal AeA wo) 1,634 SY 3.40 6,23520 1, 740 _ 30 5,937.02 1, 740.3C 5 , 917 . Q2- � j 8 1 IW Asph Core. Type S-1 Suila w Course 1,7W SY 2.60 4.576M 1,807.00 4 , 698.20 1, 807.0c 4, 69$ . wo- w &W. V% SL h v mw, 7aE Ave. a►d Dad End v 1 Bps StowzoSubgradstLm4q 298 SY 7-26 5"10 248.0 -%0.48 24$.0 5b(3• 2 ss ShawWwr Gr. a Cane. ! She Resswaftni graa Muh* m SY 2.i8 54.04 2G3.4 544.04 203.0 544. 4 6 lir Shot Bsss L%dw a1(LBR 100) 230 SY 5.06 1.168.40 234.0 1,168 . 40 230.0 213.0 1, 168. 53- ^' 6 1 IW Asps. Conc. Type s-1 Surfam Course 213 SY 2.60 6a3.80 213.0 553.80 �' PACE SUBTOTAL S 45,007.37 .142-24 43,2L4.53. LL Q Vlr-Ti0A1 FOR PAYMM NO. c e+rtacxr: Ballet Rtaadis of Ulm PlmcM. b1c. cr, qw4r--- REM • W Of r1 s QUANUff N.E. 71h st. bslweaa 44h end 5W Aloe. 1 Shs Pr0PScaei *Aix/Camp= S1aNize Subgrwde JLRR 40) 885 SY 2 Shoulder Gr. S Comp. / She Reswadon / Grin,& mttc.1 484 SY Q 6 la* Shah Baas Meterlal (LBO 100) "S SY S 1 1/4' Asph. Conn Type S-1 Surface Course 1 mo SY N.E. 51h St. lbwss0 ft and 711h Am 1 Sirs P►eplScatllyAft Co.,Vwy SuWze SLgVmde (1BR 4)} 1,OM6 SY 2 SboUWW Gr. 6 Comp: /We Restoration! Grass S IWfth 594 SY 4 8 t17' SheA Base 1Wterial (LOR 100) = 1,040 SY 8 1 IW ASO. Corte Type S-1 8urlaos Course W4 SY &E 4% Axe. beinssn 46 eta 7m 8t 1 Ske' Slabtlize Snbgrode (LBR 40) 9" SY 2 ShwAdw Gr. A Csntp. I S" Realtxafian i Graces 8 hU ch 496 SY 4 6 /12' Sbe11 Om MaNdtJ 4LBi1 907 SY B t 114' Asph. Cane, Type S-t Surface Course 865 9Y S.E 76 Ave bets 2ad Ave. ead 00 U%w Rent 1 She PMStebNize Subprada ZLSR 401 3.293 SY 2 Shoulder Or. i Corrp. I Site Restoration / Grass a tblukh 1,601 SY 4 61/2' Shell Base material (LBR I M 3,155 SY B 1 1/4' Asph. Cori. Type S•1 Sutim* Course 3,00 5Y PAGE SUBTOTAL 0 8 PREYOW PE1rOD AI1iUU111? (MMGRTT A>11OM TM PIER= 1992 Rotes N'll CITY OF OKEECHME. FLOC TOUT. TO GATE OVA1 WFY Allotm flt1A MTY A1fOM 0 58 513-W 895.10 519.16 895 - _C 519.16 1.00 484.00 434.V! 4-84.00 484.0 484.00 3A3 2.873.M 855,30 2, 908.02 855.30 2,S08.02 2.60 2,210.00 827.0 2,150.20 827.00 2,150.20 e.w 629r98 1, 082.4E 627.79 1, fl82.40 627.79 1.00 j 534.Q0 `?4.0 534.0 534.0 534.00 3.40 3,536.a0 1, 033.8" 3, 5_4. 92 1,033.80 3,514.92 z60 2.S"40 985.00 2, 561.00 985.10 2,-%1 :10 O.SO So 948.fl0 549.84 946.00 549,L4 1.00 4M00 495.0 495.00 495.00 495.0 34a 3►aa3M 907.0 3,083. SC 907.0 3,083.80 2AD Z MAO 865.0 2,249.00 865.3 2,249.00 0.62 2,041.66 3,279.00 2,022.98 3,279.00 2,032.98 1.04 1,748.24 1,681.0 1,?48.24 1,681.Q 1,748.24 3.44 10,863-20 3,155.00 : 0, 853.20 3,155.0 30,853.2D 2.60 7.891.00 2,E89.0 7,511.40 2,889.0 7,511.4Q $ 42,276.32 . i , 049.91 10, In 2.64 41, 822.53 AV7 FOR PAYMENT NO. im ROAD M E $ saw Roads of Lrlita PMCK me- CWT OF OKEECHOWN, FLOMM rn °D CONTRACT PREMOU'S mXOiD TM FE11W 70TAL TO DA7M a: %Z - rnsm sesco "m QtlAliAfY V I uw AMOUNT comalmy ANOtm a11ANWV /Ii mw OtJAImw - AMO M[i' PRIG MLW. bW SL beft"n itlb msd 1161bro. 1 S#Q Pro Suwaft MR 401 1.a" SY 0.38 619," 1, 136. 10 658.94 1,136.10 658. 94 2 Shoulder Or. & Camp. t She Rssooratian t Grass a Mich 463 SY 1.00 4U.00 4e . C 495.00 485.0 485.00 4 6 ltr Shan Base MaWdat (LDR 200j 1.029 SY 14D 3.496.60 1, 08FR. IC 3 , 689. 34 11085.10 3,689.34 9 1 tI4' Asph. Corc. Typo S-1 Surface Comae I've SY 280 2,797." 1, 095.003 2,847.00 11095.00 2, 847.Od S W. 2a0 S. brtrwan 181h and ilth Am 1 SIIs Prea'Sc *j#MWC.ornpact Stabrlme SubWade (LOR 43) 1,442 SY C49 947.96 1,462.0 647.96 1,462.0 847.96 2 Shoulder or. a Corny. / site Restoration/ Grass s MnAch 7w SY i.OG 7"X90 735. 0 ^55.00 755.0 755.00 cl 4 61 rr SBolr Bess Matartal (Lon hall) 1.402 SY 140 4,7i680 1,402.0 4,166.8G � 1,4Cr2.0 4,7b5,80 2 8 1 1i4' Aaph. Cork. Type S-1 Surfaoo Course 1.34>i SY I" 3-4ft69 1, 341.C) 3,486.6C 1,341.0 3,496.60 cl S.W. ulb St bNwoon ft and 7m Ave. `T 1 Sft mpeet Stabftfj Subpbe {Len 4% 1.50 SY 0.58 807." 1, 548.0 e97.84 1,548.0 897.84 2 Sborider Or- a Comm ! Sf1e Romwabon / Grow ak Wjwh 025 SY 1.00 8Zi 0C 825.0 62 5.00 825.0 825. OD 4 6 in SbrA Bop iMaterp) (LBR 100) 1,404 SY 3.40 5 07afe 1, 494.! , 5, C79.6O 1,40-4.0 5, 079.60 a:9 1 WAsph. Cons'Typo 8.1 Surface Couraa 1.424 SY 240 3.702.40 1,424.0 3,702.40 1,424.0 3,702.40 J 3o2i FLW. 3rd et.1M trlaM �1 allO 1A A1rR x I Site StsbAzo suberaoe ILDH act) 1,814 SY *AS 1,Oe6A2 1, 852_r_. 1, C74.16 11852.0 1,074.16 2 Shoulder ©r. 4t compx i Site Restoration t Grass s Nwitch 90 SY 1.00 S46AP 946.0 946.00 946.0 946.00 4 61rrSIte6 SatoMa6eulal "R 100) Leos SY 3.40 6.130.20 4 1, 80-C 6,130.20 1,803.0 6,130.20 a 1 114' AWh. Corm. Type S- f Swface courts 13d1 SY 2.60 4,500.60 1, 731 _C 4,5)0.60 1, 731. 0 4 , 500.60 as PAGE SUBTOTAL �----- $ 40.40.56 3?, 661.44 3,011.00 40, 692.44 m m u, 4 a:. a. L f T" FOR PAVV EW Wo. c attar Bettor Roads Of LAD EMM VW. - ammw I am PMCE PREYSE Pinm I 7Ns *Ei600 1992 ROAD I11PA07iEMEKTS CRY1f W () Fl.ORM t ILW. Alb SL between go" tft Ave. SRs PnpMCWiSyi&4WC*ffVM t Stablte Subpta4a {LBA 40� 1.880 SY 0.50 I,M.40 1, 842. 2C 1,068. 42 1, 842-10 1,068.42 2 ShwAdw Gr. 6 Cow r SRO Rommiaoon r grow A moodk on SY 1.00 938.00 93E . 0 938.0 938.00 4 61J7'St�11us" QAe "(LBR1 1.610 sY 3.40 6,154.00 1,759.60 5r982-64 ( 4 11759.60 1.756.0 5,982.64 4,846.56 cl 6 1 IW Asph. Conc. Type S•1 Surwe Course 1,74t SY 2.76 4,8f15.i6 1,756. C 4 846_56 a NW.IIrAve.blweeAV&a�7081. 951. f!(� 638. b 351.30 618.67 <1 1 sloe Pr Stab bG Swbgv s CLSR 401 yi0 SY O.f� 64y:3S y93. Cl 52, _ 5! 493.0 527.51 2 SkwW r Gar. R CoMp. r Site Rea aWat Grass 6 Mulch 413 SY 1,07 527st 912 � 3,166.72 912.60 3,166.72 _ 4 s wr Shell Ba" Mate W (MR 10% yes Sv 3.47 3.&U24 . sr..a 411 .'?5 2,i1E 877.ti z,411.75 8 1 IM, Mph. Conc. IVIM S-1 Surface Canna 517 SY 2.76 2.M.75 J J xw MeL between 16er wW 11th Am o.30 661.02 1. 48Cti.8 858. fib 1, 48C.8 858.8619 � t SMs Prs SUM" JJLW 4C1 $A- SY s 2 :. a ? 1'7 . t�7 717.0 717.00 w 2 ShmAder Gy. a Comp. l She Reataialbn I Grass a 717 SY 1.00 717.00 4,807.34 � 1,d14,i�J 94 4.8(2?.9�4 a _. " am �.�,,, I AM SY 3-40 4.9" 4!1 1,474.10 t w 7C 0. 14 alm " T a o ifr wm Domw mmw- %s,aa.. ,wj -- - 'type 1,413 SY 2778 $74.5G 3.615.14 1, 435.0 r , t lw Awh. Conn. S-1 SWIM* Carrie 2, 13r 5.1 29,818.57 tv PAGE WSTOTAL : 3t3,4Q3 95 27,636.0c . {TEM "C" TOTAL S 158,W.40 137 , I4G. 7 19, iCs _ ?'y' 156, 253.09 co 4/13/93 CITY OF OKEECHOBEE 55 S.E. THIRD AVENUE OKEECHOBEE, FL. 34972-2932 ATTN: JOHN DRAGO Dear John: • Collection and Research services Commercial cal • Retail I L Z c-7 Thank you for taking the time to see me the other day. I'm looking forward to helping you and the City of Okeechobee with your needs. As you requested, I have enclosed a proposal for your review and approval. CRS will place in collection any outstanding debts owed the City. We work on a percentage fee only, no collection, no fee. We will charge you a rate of 30 % on all accounts with a good address and a 40 % fee on accounts we have to skip trace. A monthly report will be supplied to you, with the status of all outstanding accounts. All monies collected by CRS will be paid on or before the loth of every month less any commission owed to CRS. If you have any questions, please feel free to contact my office. Sincerely, Maurice Conway CRS Collection and Research Services P.O. Box 2714 • Okeechobee, Florida 34973-2714 • (813) 357-2233 � o+cEFc CITY OF OKEECHOBEE, ORIO"' MEMORANDUM TO: Mayor and Council DATE: April 16, 1993 THRU: SUBJECT: Exhibit 8 THRU: d FROM: John J. Drago, City Administrator My secretary and l have attempted on 3 different occasions to contact Mr. Norman regarding his presentation for Bion Technologies. We have yet to hear from Mr. Norman if he is ready to make his presentation. If we do receive word, his materials will be copied and we will get them to you. Knepper&Willard, inc. Engineers April 12, 1993 Mr. John Drago City Administrator City of Okeechobee 55 S.E. Third Avenue Okeechobee, FL 34974-2932 RE: Professional Engineering Services Agricultural Use Plan Application for Residuals Application to Existing WWTP Site R & W Project No. 7206.91 Dear Mr. Drago: Based upon your recent request, we have developed an estimated work scope and associated cost for assisting the City in preparing and submitting the above -referenced agricultural use plan to the S.E. District of FDER to relocate residuals application to the existing WWTP site from the Hamrick property. These services shall be performed in accordance with the provisions of the Continuing Professional Services Contract, dated 3/5/93. The compensation for this work shall be on the basis of the hourly rate schedule therein (Exhibit "A") with a not to exceed price of $9,810 as listed in Attachment No. 1, which outlines the anticipated services to be performed. Any variance above this amount will require your prior authorization. Invoices for work accomplished, including reimbursable expenses, will be submitted and payable monthly. It is recognized that time is of the essence for this work and we will diligently prosecute the services to be performed and submit the necessary work products as quickly as possible after your execution of this agreement. The intent is to complete the application form and supporting documents within 60 days, not including time for completion of FDER review. Further it is understood that you will provide us all records regarding sludge (residuals) generation and disposal, including past permits and/or completed application forms, reports, technical analyses, operating data, monitoring well data, current and/or proposed changes to the type of hay crop(s) grown on the site, fertilizer application rates used by the current hay farmer and other pertinent information available to the City relating to this permitting work, and guarantee access to the records and facilities as may be necessary to perform these engineering services. Hillsborough (813) 281-0120 3030 North Rocky Point Drive West Pinellas (813) 821-3291 Suite 570 Pasco (813) 846-0846 Tampa, FL 33607-5905 FAX (813) 281-1156 Mr. John Dra o April 12, 1993 Page 2 This letter proposal, along with Attachment No. 1 consisting of two (2) pages, if acceptable to you, will serve as an agreement between us upon your approval by executing the date of acceptance and your signature in the spaces provided. Please return one (1) executed copy to us for our records, which also will serve as our notice to proceed with the work. This proposal will be open for acceptance for a period of 60 days from the date of its submittal, unless changed by us in writing. We appreciate this opportunity to be of further service to the City, and look forward to working with you and your staff on this project. Should you have any questions, need further information, or would like to discuss this proposal in further detail, please feel free to call us. Very truly yours, KNEPPER & WILLARD, INC. Ter Knep , P.E., DEE Exec ve Vice President TWK/kwt Enclosure cc: Daniel S. Willard, P.E., Project Manager Accepted this day of , 1993 CITY OF OKEECHOBEE, FLORIDA By. Typed Name & Title ATTACHMENT NO. 1 CITY OF OKEECHOBEE AGRICULTURAL USE PLAN APPLICATION FOR RELOCATING RESIDUALS APPLICATION TO THE EXISTING WASTEWATER TREATMENT PLANT SITE ESTIMATED MANPOWER/FEE BUDGET 1. Review past and present permit requirements/correspondence regarding sludge (residuals) application, and visit WWTP/City Hall to review operating records, files regarding responses to any non-compliance with permit conditions and discuss agricultural use plan information with operational staff and the current hay farmer. Principal Engineer 12 hrs. @ $85/hr. Subtotal $ 1,020 2. Obtain from the City's records necessary WWTP flow and sludge production records, treated effluent and sludge analyses results, monitor well analyses results, and City/hay farmer irrigation and crop cultivation practices. Using this information, recent hydrogeologic information obtained for the WWTP site during Phase II and available SCS and/or IFAS information on nutrient and irrigation requirements for hay crop production, perform the calculations to support the agricultural use plan. Principal Engineer 8 hrs. @ $85/hr. Senior Engineer 16 hrs. @ $60/hr. Engineer 16 hrs. @ $45/hr. Sr. Engineering Tech. 8 hrs. @ $45/hr. Engineering Tech. 16 hrs. @ $35/hr. Secretarial/Clerical 4 hrs. @ $25/hr. Subtotal $ 3,380 3. Prepare the associated agricultural use plan application form with supporting information referenced in FDER rules, Chapter 17-640, for subsequent submittal to FDER, S.E. District in West Palm Beach, Florida. Principal Engineer 8 hrs. @ $85/hr. Senior Engineer 4 hrs. @ $60/hr. Engineer 16 hrs. @ $45/hr. Sr. Engineering Tech. 4 hrs. @ $45/hr. Engineering Tech. 8 hrs. @ $35/hr. Secretarial/Clerical 4 hrs. @ $25/hr. Subtotal $ 2,200 Page 1 of 2 LE: 4. Submit to and review draft application form and supporting information with City staff. Incorporate comments received into the final application form and prepare proper number of copies of submittals for execution and transmission to FDER by the City. Principal Engineer 8 hrs. @ $85/hr. Engineering Tech. 4 hrs. @ $35/hr. Secretarial/Clerical 4 hrs. @ $25/hr. Subtotal $ 920 5. Follow up and respond to questions raised by FDER during its review and review/comment on FDER draft permit conditions sent to the City before issuance or effective date of the final agricultural use plan accepted by FDER. Principal Engineer 4 hrs. @ $85/hr. Senior Engineer 16 hrs. @ $60/hr. Secretarial/Clerical 4 hrs. @ $25/hr. Subtotal $ 1,400 6. Miscellaneous expenses (reproduction, mileage, etc.) @ 10% ± $ 890 TOTAL Page 2 of 2 $ 9.810 ORDINANCE NO. 659 AN ORDINANCE OF THE CITY OF OKEECHOBEE, FLORIDA, WHICH REPEALS /O SECTIONS 2-15 THROUGH 2-43 OF THE CODE OF ORDINANCES, AND WHICH ENA AMENDED CODE SECTIONS 2-15 THROUGH 2-43, WHICH ADOPTS STATE STATUTE AND WHICH REVISES THE CODE ENFORCEMENT PROCEDURES FOR THE CITY OF OKEECHOBEE, FLORIDA, AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Code of Ordinances at Sections 2-15 through 2-43 for the City of Okeechobee tracks the Florida State Statute for Municipal Code Enforcement procedures, Chapter 162, Florida Statutes, which State Statute is amended from time to .time; and WHEREAS, the State Statute has been amended since the enactment of Section 2-15 et.seq. of the Code of Ordinances for the City of Okeechobee, meaning the present code is out of date and compliance with the State Statute, and WHEREAS, the State Statute will likely to continue to be amended from time to time, which would require like amendments to the City Code; it is THEREFORE by majority vote approved and enacted a repeal of the existing Sections 2-15 through 2-43, and a revision of said Sections of the Code of Ordinances for the City of Okeechobee, Florida which will remain flexible to accommodate the various amendments to the State Statute, and which shall read as follows: Sec. 2-1& Declaration of Legislative Intent. It is the intent of this Ordinance to promote, protect, and improve the health, safety and welfare of the citizens of the City of Okeechobee, Florida by authorizing the creation of administrative boards with authority to impose administrative fines and other noncriminal penalties to provide an equitable, expeditious, effective, and inexpensive method of enforcing any codes and ordinances in force in the City of Okeechobee where a pending or repeated violation continues to exist. Sec.2-16. Definitions. As used in this part, the terms: (1) "local governing body" means the City Council of the City of Okeechobee, Florida. (2) "Code Inspector" means any authorized agent or employee of the City of Okeechobee who is appointed, and serves at the terms set by, and at the pleasure of, the City Council, and whose duty it is to assure code compliance, cause code violation notices to be initiated, and to present code violations before the Code Enforcement Board. (3) "Local governing body attorney" means the legal counselor for the City of Okeechobee. (4) "Enforcement Board" means a seven -member board comprised of persons who are permanent residents within the City of Okeechobee who are appointed by the City Council as provided by State Law, to hear and determine code enforcement violations brought before it. (5) "Repeat violation" means a violation of a provision of a City Ordinance or Code by a person whom the Code Enforcement Board has previously found to have violated the same provision of the ordinance or code within five years prior to the violation. Sec. 2-17. Adoption of State Statute. It is herein adopted Chapter 162, Florida Statutes, Parts I & 11, "Local Government Code Enforcement Boards Act", in its entirety, as presently written or as hereafter amended by the State Legislature, as substantive authority for, and to proscribe procedures for, the establishment, organization, and operations of the local Code Enforcement Board for the City of Okeechobee, Florida. Sec. 2-18. Administrative Procedures. All code enforcement operations for the City of Okeechobee, Florida shall be administratively handled through the City Department of General Services, who shall provide the appropriate forms; take • • P complaints; process complaints; direct the Code Enforcement Officer in his/her inves a int complaints, schedule Code Board Meetings; provide a tape recorded record of such meeting , re and record official acts and orders of the board; prepare and file any liens as directed by the board; and to generally be responsible for all operation and record keeping for the Code Enforcement Board. The Code Board may from time to time forward on to the City Council as an agenda item, or for general consideration, any matter, request, suggestion or concern the board may vote upon at a regular or special meeting that it determines should be addressed by the City Council. Sec. 2-19. Administrative Staff Fees. Any first-time violators of any City Ordinance or Code are required to correct the alleged violation upon receipt of a first notice of violation from the City of Okeechobee. If such violation is not corrected, and a second notice must be sent, then the City shall assess and collect from the violator an administrative fee of $25.00 for processing the complaint, plus any additional expense incurred in long distance phone charges; certified mail expense, recording charge, or any such other reasonable administrative expense incurred in processing the complaint, which excludes the salary of the Code Enforcement Officer or City employees, regardless of whether the violator should come into compliance with the cited ordinance or code prior to the public hearing on the violation. For those persons who qualify as repeat violators by State Law, upon the initiation and processing by the City of any complaint for being in violation of a City Ordinance or Code, the City shall assess and collect from the violator an administrative fee of $25.00 for processing the complaint, plus any additional expense incurred in long distance phone charges; certified mail expense, recording charge, or any such other reasonable administrative expense incurred in processing the complaint, which excludes the salary of the Code Enforcement Officer or City employees, regardless of whether the violator should come into compliance with the cited ordinance or code prior to the public hearing on the violation. Sec. 2-20. Effect of no Violation. In the event any alleged violator should appear or contest the violation through the Code Enforcement Officer, or before the Code Enforcement Board, and the board finds as a matter of fact and law from the evidence presented by the Code Enforcement Officer, or other witnesses, that there was no violation of any City Ordinance or Code by the alleged violator, then no administrative charge or expense as provided herein shall be assessed to the alleged violator. Sec. 2-21 through 2-43 Reserved. This ordinance shall be set for final public hearing the day of 1993, and shall take effect immediately upon its adoption. 1993. Introduced for first reading and set for final public hearing this 20th day of &Lr MAYOR JAMES E. KIRK ATTEST. BONNIE S. THOMAS, CMC, CiTY CLERK Passed and adopted on second reading and final public hearing this day of , 1993. MAYOR JAMES E. KIRK ATTEST: BONNIE S. THOMAS, CMC, CITY CLERK i • OKEECHOBEE BEACH WATER ASSOCjb NC. OB 8840 Highway78 West WA Okeechobee, Florida 34974-9787 (813) 763 - 3793 Fax (813) 467- 4335 Serving Customers in Okeechobee And Glades County April 7, 1993 ` TO: The Membership of OKEECHOBEE BEACH WATER ASSOCIATION, INC. Dear Fellow Members: As you know the Board of Directors has decided to build a 1.5 million gallons per day water treatment plant rather than enter into another bulk sale contract with the City of Okeechobee. It is the best way to control the cost of water in the future. Without our own water treatment plant, our membership will be at the mercy of the City of Okeechobee on future water rates once our existing contract with the City expires. Another concern the Board has is that the City can use the power of eminent domain to condemn our system and take it away from us. Chapter 180, Florida Statutes, gives the City the option of condemning our system. Your Board of Directors believes that the City will do everything it can to stop our efforts to build a new plant. Your Board of Directors, after careful thought and deliberation, has concluded that the best way to protect our system from being taken over by the City is to enter into a utility franchise agreement with the Countv of Okeechobee. Such a franchise agreement will enable Okeechobee Beach Water Association, Inc., ("OBWA") to take the lead in providing not only quality water, but also eventually sewer service in the south end of Okeechobee County. By working hand -in -hand with the County, the City will not be able to condemn our system and take it away. The County is willing to give us the protection of a franchise if we are willing to help solve a future problem the County is facing. The South Florida Water Management District is pushing the County to develop a sewer system along Rim Canal. At this point. the County wants OBWA to handle water and sewer service on the south end of the County. However, if in the future the County gets into the utility business by itself, or if it forms a utility authority, the County will want to acquire our system through a voluntary purchase arrangement, rather than condemning our system and taking it away from us. That is why the County is insisting on a purchase clause in the franchise agreement. Hopefully, our system will never be taken over by either the County or the City. However, if we are taken over, your Board of Directors feels a purchase arrangement with the County would be less detrimental to our membership than being condemned by the City of Okeechobee. At least the County does not have a tremendous utility debt to spread around like the-cit..y has. The franchise agreement will also provide a basis for Okeechobee County to develop an inter -local agreement with Glades County to provide sewer service to Buckhead Ridge. SEE BACK 0 • April 7, 1993 Page Two At the special meeting the membership also needs to approve an amendment to our Articles of Incorporation filed back in 1965. Article II contains a clause which allows us to sell excess water. In order to get a consumptive use permit from the South Florida Water Management District, we have to obtain certification that we are exempt from regulation by the Public Service Commission ("PSC"). We cannot get the certification unless we delete the clause in the Articles of Incorporation allowing us to sell excess water. The PSC wants us to sell water only to our members. Enclosed is a notice of a special meeting of the membership to. seek your approval for OBWA to enter into this franchise agreement and to amend our Articles of Incorporation. It will be an extremely important meeting for our membership. Please attend so we can provide you with further information and hopefully obtain your approval. The proposed franchise agreement is quite lengthy (40 pages). If you would like to review a copy before the meeting, please contact the OBWA office. Sincerely, LELAND PEARCE, Chairman ERNA GABRIEL, Director (Unavailable for review and signature) MITCHELL HOWELL, Director i TOM BARNES, Director rd 1��& JU(K COKER, Director i • OKEECHOBEE BEACH WATER ASSOCIATIO11 C. OB* T 8840 Highway 78 West w/� Okeechobee, Florida 34974-9787 !� (813) 763 - 3793 Fax (813) 467- 4335 Serving Customers in Okeechobee And Glades County NOTICE OF SPECIAL MEETING OF THE MEMBERSHIP OF OKEECHOBEE BEACH WATER ASSOCIATION. INC., TO: ALL MEMBERS OF OKEECHOBEE BEACH WATER ASSOCIATION, INC. DATE OF MEETING: April 26, 1993 TIME: 7:00 P.M. PLACE: BUCKHEAD RIDGE COMMUNITY CENTER Highway 78 West PURPOSE: 1) To obtain membership approval for the Board of Directors to enter into a franchise agreement with Okeechobee County. The proposed franchise agreement contains a provision allowing the County to purchase all of the assets owned by Okeechobee Beach Water Association, Inc., at some time uz the future. 2) To amend Article II of the Articles of Incorporation to delete the language authorizing the Association to sell water to persons other than members. THIS WILL BE AN EXTREMELY IMPORTANT MEETING FOR YOU TO ATTEND AND LEARN MORE ABOUT OUR PLANS TO BUILD A WATER PLANT AND EVENTUALLY PROVIDE SEWER SERVICE TO OUR MEMBERS. .01 ,," i ORDINANCE NO. 93- C� AN ORDINANCE GRANTING A NON-EXCLUSIVE FRANCHISE TO OKEECHOBEE BEACH WATER ASSOCIATION, INC., ITS SUCCESSORS AND ASSIGNS, TO OPERATE AND MAINTAIN WATER AND SEWER SYSTEMS IN A PORTION OF THE UNINCORPORATED AREA OF OKEECHOBEE COUNTY; IMPOSING PROVISIONS AND CONDITIONS RELATING THERETO, PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS, OKEECHOBEE COUNTY, FLORIDA: ARTICLE I INTRODUCTION SECTION 1.01. DEFINITIONS. As used in this Ordinance, the following words and terms shall have the following meanings, unless the context clearly otherwise requires: "Association" means the Okeechobee Beach Water Association, Inc., a Florida corporation, its successors and assigns. r."County" means Okeechobee County, Florida. "Franchise Agreement" means the agreement between the County and the Association as provided in this Ordinance and accepted by the Association pursuant to its terms, as amended by the parties. i "MGD" is an abbreviation for "million gallons per day." "Service Area" means the lands described in Appendix B attached hereto. "Sewer system" means and includes any plant, system, facility, or property and additions, extensions and improvements thereto at any future time constructed or acquired as part thereof, useful or necessary or having the present capacity for future use in connection with the collection, treatment, purification, or disposal of sewage of any nature or originating from any source, including industrial wastes resulting from any processes of industry, manufacture, trade or business or from the development of any natural resources; reclaimed water treatment transmission and distribution facilities; and without limiting the generality of the foregoing definition shall embrace treatment plants, pumping stations, lift stations, valves, force mains, intercepting sewers, laterals, pressure lines, mains, and all necessary appurtenances and equipment, all sewer mains and laterals for the reception and collection of sewage from premises connected therewith, and shall include all real and personal property and any interest therein, rights, easements, and franchises of any nature whatsoever relating to any such system and necessary or convenient for the operation thereof. "System" shall mean any water system or sewer system, r including any reclaimed or irrigation water system, now owned and operated or hereafter owned and operated by the Association, unless the context otherwise requires. "System development charges" means fees and charges imposed to acquire, construct, equip or expand the capacity of the system facilities in excess of that reasonably determined by the Association to be necessary to provide service to current users of the system for the purpose of paying or reimbursing the equitable share of the capital ,cost relating to such acquisition, 2 (F) The granting of the nonexclusive franchise described herein promotes the decisive, cost efficient and environmentally sound provision of water and sewer utility services to the Service Area. (G) The County is desirous of having available to its citizens, visitors and landowners within the Service Area, in return for valuable consideration, certain water and wastewater facilities of sufficient size and capacity to serve the citizens, visitors and landowners within the Service Area at reasonable rates, and constructed in such a manner so that at such time as the County desires to purchase or otherwise acquire said facilities, that prospective purchasers of revenue bonds of the County to be used to obtain the funds to make such purchase or acquisition can be assured that the facilities are adequate and satisfactory and will produce -,revenues capable of retiring said revenue bonds. (H) The Association has indicated to the County that it is willing and desirous to undertake the installation and operation of 1.5 MGD water treatment plant and appurtenant facilities to serve the Service Area under a franchise from County. (I) The Association currently controls and operates a .1 MGD water treatment facility and owns and operates an extensive water distribution system serving over 3,200 accounts in the Service Area. (J) The Association is,a not for profit corporate entity owned and operated solely by its members for their benefit and was I 5 • • ''.. I P/I *. -- A�* created in 1964 with the acquiescence of the city of Okeechobee and the County to ptovide water service to the Service Area. (K) The Association has, since 1965, entered into a series of long term agreements with the City of Okeechobee wherein the City of Okeechobee recognized and defined the Association's service area and has been selling bulk water to the Association for the Association's use in providing -water service to the Service Area. The current bulk commodity agreement was entered into in 1985, terminates on October 1, 1994 and limits the amount of water to be supplied to the Association to .75 MGD. (L) As early as June of 1991, after extensive negotiations commencing as early as 1986 between the Association and the City to increase the daily bulk water supply to tYe Association beyond .75 MGD, were unfruitful, the Association notified the City that it would devglop its own treatment facilities and would no longer seek to purchase bulk water from the City after the current bulk commodity agreement expires on October 1, 1994. (M) The Association has diligently proceeded to test, acquire and design a potable water well field, acquire a water treatment plant site, design a 1.5 MGD water treatment plant, seek and obtain necessary approvals from the County, the Central Florida Regional Planning Council, the Florida Department of Environmental Regulation and the South Florida Water Management District. •` (N) The provision of central sewer service to a parcel of property by the same utility that provides central water service promotes water conservation, efficiency of service and is the most cost effective alternative to provide wastewater services to the Service Area. (0) The Association has indicated to the County that it is willing to seek transition agreements with the operators of - existing package water and sewage treatment plants and on -site disposal facilities within the Service Area, develop a plan in conjunction with the County to provide a central sewer system to all water customers served by the Association and, under certain circumstances, implement such'plan. (P) The provision of such central sewer system by the Association in the Service Area- is in the overall best interest of the health, welfare and safety of the citizens, visitors and landowners of the County. I 7 • F�Le ARTICLE II WATER AND SEWER SYSTEH FRANCHISE SECTION 2.01. GRANT OF AUTHORITY. (A) There is hereby granted to the Association, its successors and assigns, the non-exclusive right, privilege or franchise, to construct, maintain and operate in, under, upon, over and across the present and future streets, alleys, bridges, easements, rights -of -way and other places owned by the County and its successors, water lines, pipes, wellfields, pumps, water treatment facilities and any and all other appurtenances necessary thereto for the purpose of operating a water system and supplying water within the Service Area to the County,{its successors, and the inhabitants thereof, and persons and corporations within and beyond the limits of the Service Area. (B) There is hereby granted to the Association, its successors and assigns, the non-exclusive right, privilege or franchise, to construct, maintain and operate in, under, upon, over and across the present and future streets, alleys, bridges, easements, rights -of -way and other places owned by the County and its successors, wastewater collection and distribution lines, pumping stations, lift stations, forcemains, manholes, wastewater treatment facilities, reuse water facilities and any and all other appurtenances necessary thereto for the purpose of operating a sewer system and supplying sewer service or reuse water within the Service Area to the County, its successors, and the inhabitants thereof, and persons and corporations within and beyond the limits of the Service Area. SECTION 2:02. WATER SYSTEM USERS. All occupants and landowners within the Service Area are hereby granted the privilege and right to receive from the Association the water services described herein, subject to the terms and conditions described herein; provided, however, that any request for Association water services that requires the extension of water mains, shall be subject to prior approval of the County. Said approval shall not be unreasonably withheld. SECTION 2.03. SEWER SYSTEM USERS. All occupants and landowners within the Service Area are hereby granted the privilege and right to receive from the Association the wastewater services described herein, subject to the terms and conditions described herein; provided, however, that any request for Association wastewater services that require the extension of sewer or reuse water mains or the reconfiguration, installation or location of treatment facilities, shall be subject to prior approval of the County. Said approval shall not be unreasonably withheld. SECTION 2.04. TERM OF FRANCHISE; ORDINANCE CONSTITUTES i FRANCHISE AGREEMENT. This Ordinance shall take effect and be in force from and after the final passage hereof, as required by law, and upon filing an acceptance by the Association with the County, in the form attached as Appendix A, within 7 days after the adoption of this Ordinance. Such franchise shall continue in force and eff ect for a term of, 30 years, beginning with the date of such acceptance. This Ordinance, upon acceptance by the Association as provided herein, shall be construed as and constitute the Franchise Agreement - SECTION 2.05. FRANCHISE CONSIDERATION. (A) To compensate the County for the cost of administration, supervision and inspection rendered for the effective performance of this Franchise Agreement and as fair and reasonable rental for the use by the Association of the streets, alleys, bridges, easements, rights -of -way and other places owned by the County, the Association shall pay an annual fee to the County. Any amounts not paid when due shall earn interest at the same rate provided in Section 55.03, Florida Statutes. Within 60 days after the first anniversary date of this grant and within ;60 days after each succeeding anniversary date thereafter, the Association, its successors and assigns, shall pay to the County and its successors and assigns, an amount equal to six percent (6%-) of the Association's gross revenues from the sale of water and -the i provision of wastewater services to its customers within the geographic limits of Okeechobee County for the annual period proceeding the applicable anniversary date. i (B) Nothing herein shall be construed to be a limitation on the assessment and collection of valid taxes, special assessments, licenses, fees, charges or other impositions by the County or other ' public or governmental body on or from the Association in excess of such six percent (6%) amount. 10 • • F (C) The County shall hold all monies collected under this section in a separate fund and only expend those funds, in the manner and amounts solely determined by the County, to develop or assist the Association in further developing water or sewer systems, or both, in the Service Area. SECTION 2.06. ASSIGNMENT. Before the Association shall sell, transfer or assign its facilities and operations under this franchise, written notice of at least 90 days shall be given by the Association to the County. The County shall have the right and option after receiving said notice and within said 90 day period, to elect to purchase or otherwise acquire the water system and sewer system of the Association operated under this franchise, upon the terms and conditions available to the County under Section 2.07 hereof. Said purchase by the County shall be consummated within 180 days of said notice, unless a different period of time shall be agreed upon by both parties. If this option is not exercised by the County and the perspective purchaser acquires the facilities and operations of the Association, such purchaser shall agree to be bound by the terms and conditions contained in this Franchise Agreement and shall provide the County sufficient evidence to establish its capacity to do so before said sale to the purchaser may be consummated. SECTION 2.07. RIGHT TO PURCHASE ASSOCIATION FACILITIES. (A) The County hereby reserves the right to terminate the franchise granted herein and purchase or otherwise acquire the water and sewer system ,of the Association operated under this Franchise Agreement and such right of purchase is a condition precedent to the taking effect of this grant to the Association. The Association shall be deemed to have given and granted such right of purchase or acquisition by its acceptance of this franchise, which shall be signified by filing an acceptance by the Association with the County, in the form attached as Appendix A, within 7 days of the adoption date of this Ordinance. (B) In the event the County exercises its right to purchase or otherwise acquire all or any part of the water system or sewer system of the Association, the purchase price shall be mutually agreed upon by the Association and the County, but in no event shall the County be required to pay more than the amount of any outstanding indebtedness owed by the Association for revenue bonds or other obligations issued by the Association to finance the facilities or operations of its systems, if any, plus $100 additional consideration. (C) In consideration of the Association's agreement to limit r the amount payable by the County to acquire the Association' s water or sewer systems in accordance with subsection (B) above, the County or its successor in interest shall take title subject to a covenant running with the land and systems so acquired which requires the grantee, unless otherwise agreed to by the Association, (1) to operate any water or sewer system acquired from or formerly operated by the City of Okeechobee on a self- liquidating basis, i.e., to impose rates and charges for the services provided by sudh systems that are sufficient to pay the 12 debt service, operating and maintenance expenses and all other costs properly allocable to such systems and (2) to segregate any system acquired from the Association from any system acquired from or formerly operated by the City of Okeechobee. Additionally, any future contract by which the County or its successor in interest agrees to transfer title to the Association's water and sewer system shall include a covenant, requiring the transferee to operate any water or sewer system acquired from the City of Okeechobee on a self-liquidating and segregated basis, as aforesaid, specifying that the Association shall be a third -party beneficiary of such covenant. This subsection (C) shall not be construed to prohibit any physical interconnection between the Association's water or . sewer system and any water or sewer system acquired from the City ' of Okeechobee to enhance either system's reliability for health and safety purposes on a temporary basis- (D) Upon notice given to the Association under this section that the County will exercise its right to purchase or otherwise acquire the water system or sewer system Association's facilities or operations, the Association shall suspend all activities associated with debt financing unless otherwise agreed to by the County, execute a warranty deed and bill of sale for all such facilities and property, together with all documentation necessary to effect a transfer of all property and contract rights to the ' County, its successors or assigns, give possession and control of such systems to the County within 90 days and otherwise fully cooperate in the orderly transfer of assets and operations to the 13 County. upon receiving documents of title and the possession and control of the, equipment, facilities and operations of the Association, the County shall then become responsible for all care, maintenance and operation of such property. (E) Nothing in this section shall limit the county's ability to exercise its powers of eminent domain to otherwise acquire the systems of the Association. However, in the event the County does acquire the systems of the Association by eminent domain, the covenants in this Section shall be deemed unenforceable and severed from this Franchise Agreement. SECTION 2.08. CONSTRUCTION TIMETABLE. (A) The Association has represented to the County that it has i tested, acquired and designed a potable waterlwell field, acquired a water treatment plant site, and is designing a 1.5 MGD water treatment plant to serve the Service Area. The Association shall continue to seek and obtain necessary approvals, permits and i financing and construct a water treatment plant to serve the potable water needs of the Service Area when its current commodity agreement with the City of Okeechobee expires in October of 1994. (B) No later than within one year after the Association's ' water treatment plant is substantially complete, the Association shall develop and submit a plan to the County to provide central wastewater services to all water customers served by the Association. The County and the Association shall actively participate in the development of the plan. To the extent of the funds actually paid to 'the County under section 2.05 or to the extent the South Florida Water Management District provides funding for such activity to the County, the County shall reimburse the Association or otherwise bear all costs of both the Association and the County in developing such plan. In any event, the Association shall have no obligation to implement the plan. The implementation of such a plan by the Association shall be subject to assistance from the local, state and federal governments in providing funding and developing an affordable infrastructure delivery program. (C) The County has entered into a cooperative funding agreement with the South Florida Water Management District. The potential for negative environmental effects as a result of the proliferation of package treatment plants and septic systems within close proximity to Lake Okeechobee was the driV ing force behind the cooperative funding agreement and appropriations thereunder are dependent upon future budget approvals. The County shall, subject to the terms and intent of such cooperative agreement as amended, assist the Association in fulfilling the Association's obligations under the Franchise Agreement relative to planning and developing central water and sewer systems in the Service Area. SECTION 2.09. TERMINATION. Failure of the Association to comply substantially with any material provisions of this Franchise f Agreement shall be grounds for termination of this grant, but no such termination shall take effect until expiration of 180 days from the date of receipt by the Association of written notice of such material non-compliance and the failure of the Association to cure such material non-compliance during such 180 day period to the satisfaction of the County. The County may in its discretion grant additional time to the Association for compliance as required by the circumstances of the case. SECTION 2.10. BREACH. The Association recognizes that the failure on the part of the Association to comply with the terms of this Franchise Agreement is likely to cause irreparable damage to the County, and damages at law will be an inadequate remedy. Therefore, the Association agrees that in the event of a breach or threatened breach of any of the terms of this Franchise Agreement by the Association, the County shall be entitled to an injunction restraining such breach or to a decree of specific performance, or both, without showing or providing any actual damage, together with recovery of reasonable attorneys fees and costs incurred in obtaining said equitable relief until such time as a final and binding determination is made by the court. The foregoing equitable remedy shall be in addition to, and not in lieu of, all other remedies or rights which the County may otherwise have by r virtue of any breach of this Franchise Agreement by the Association. The County shall be entitled to seek injunctive relief without the posting of any bond or security to obtain the entry of temporary and permanent injunctions and an order of r specific performance enforcing the provisions of this Franchise Agreement. 4.F 1 16 ARTICLE III OPERATIONS SECTION 3.01. USE OF RIGHT-OF-WAYS. (A) In performing the work and providing the water system and sewer system services provided by this franchise, the Association shall, at its expense and without reimbursement from the County, locate or relocate its system facilities so as to interfere as little as possible with traffic, over said -streets, alleys, bridges, easements, rights -of -way and public places owned by the County and shall provide reasonable access to abutting public and private property. All system facilities shall be located or relocated under the County's supervision and with the County's approval; however, the County shall not unreasonably interfere with the proper -,operation of the water and sewer system of, the Association. ' (B) Any portion of a street or other public way or facility disturbed by the Association's excavations or operations shall within a reasonable time and as early as practicable after disturbance, be restored by the Association at its expense in as good or better condition as it was and immediately prior to the disturbance. SECTION 3.02. CONSTRUCTION OR INSTALLATION OF FACILITIES. The construction, maintenance and operation of water system and sewer system facilities, both as to those portions located within the Service Area and those portions located beyond the Service - - 17 Area, shall be subject to the prior approval of the County of the plans and specifications for all such construction shall first be approved by the County before construction is commenced. The County, through its employees, officers or agents shall have the right to inspect the system facilities of the Association at any reasonable time. SECTION 3.03. SYSTEM MAINTENANCE. (A) The Association shall maintain in good condition and operate its water and sewer systems so as to render efficient service to the County and its inhabitants, and the Association shall comply with the rules and regulations as are, or may be, described under the terms of this Franchise Agreement, and those set forth by the State and federal governments for the operation of water and sewer systems. (B) Whenever it is necessary to shut off or interrupt service for the purpose of making repairs, adjustments or installations, the Association shall do so at times and under circumstances as will cause the least amount of inconvenience to its customers. (C) All water service shall be supplied through meters which shall accurately measure the amount of water supplied to all customers. The Association shall at any time requested by a customer, make a test of the accuracy of any water meter. The Association may impose a reasonable charge for such an accuracy test. (D) The Association shall install and maintain at its own expense all necessary fittings, pipes and appliances, including all meters and meter boxes to delivery water to its customers. All said fittings, pipes, appliances, meters and meter boxes shall remain the property of the Association and shall at all times be accessible to it or under its control. (E) No plumber, owner or other unauthorized person shall install or disconnect or remove a meter provided under this franchise without the consent of the Association. SECTION 3.04. TRANSITION AND SERVICE AGREEMENTS. (A) The Association shall identify all owners and operators of package water and wastewater treatment plants, and on -site disposal facilities within the Service Area and seek transition agreements, in form acceptable to both the County and the Association, which provide for the transitioA of these package or on -site treatment facilities to service by water system and sewer system facilities provided by the Association. (B) The Association shall revise its water service agreement procedures to require all landowners who have developed or are seeking to develop their lands in a manner that requires or will require the development of a central sewer collection system to covenant in writing (1) to dedicate all wastewater collection facilities and easements to the Association, in conformance with procedures adopted by the Association, or otherwise hold such facilities and easements in trust for the benefit and use of the users thereof, and (2) that, when and if the Association or its successors or assigns provides wastewater treatment services, the landowners shall abandon the use of any private or investor owned 19 treatment facilities at the landowners' expense and become a customer of the Association's sewer system. SECTION 3.05. CONTRIBUTIONS TO BENEFIT USERS. In the event of the condemnation an investor owned water or sewer utility by the County or the Association, or in the event of the condemnation by the County of a system owned or operated by the Association, all contributions in aid of construction, including those defined in Section 367.021(3), Florida Statutes, received by such utility subsequent to the effective date of this Ordinance shall be deemed held by the utility solely for the use and benefit of its customers and such assets and contributions shall not constitute an investment or equity or property interest of the utility in the condemned assets in any evaluation method presented in such condemnation proceedings. Such prospective consideration of the investment reality of contributions in aid of construction in condemnation proceedings is in the public interest to insure that the rate payer does not pay for the utility system twice, once through their contributions and a second time through rates to support the acquiring utilities' investment when a condemnation award includes such contributions. SECTION 3.06. RATES, FEES AND CHARGES. i (A) The Association shall from time to time, by resolution, adopt a schedule of rates, fees or other charges for the use of the water system and sewer system of the Association to be paid by the owner, tenant or occupant of each parcel of land which may be connected or provided with service by such system. The initial ' 20 schedule of rates, fees and other charges, shall be those already in effect within the boundaries of the Service Area as of the effective date•of this Franchise Agreement. The Association may thereafter revise the schedule of rates, fees and charges from time to time. However, such rates, fees and charges shall be adopted and revised so as to provide monies, which, with other funds available for such purposes, shall be sufficient at all times to pay the expenses of operating and maintaining its systems, including reserves for such systems and the principal and interest on any revenue bonds or other obligations as the same shall become due and the reserves therefore, and provide a reasonable margin of safety over and above the total amount of such payments, to comply fully with any covenants contained in any resolution authorizing the issuance of bonds or other obligations of the Association or assumed by the Association. (B) Such rates, fees and charges shall•be just and equitable andtuniform for the users in the same class and may be based upon or computed upon any factor or combination of factors affecting the use of the services or facilities furnished, as may be determined by the Association from time to time. No rates, fees or charges shall be fixed, adopted or revised under the foregoing provisions until a public hearing in which all the users of the system affected thereby, or owners, tenants or occupants served or to be ' served thereby, and all other interested persons shall have an opportunity to be heard concerning the proposed rates, fees or charges. Notice of such public hearing setting forth the proposed schedule or schedule of rates, fees or charges, shall be sent to the County and shall also be given by one publication in a newspaper circulating in Okeechobee County at least 20 days before the date fixed in such notice for the public hearing, which may be adjourned from time to time. After such hearing, the proposed schedule or schedules, either as initially adopted or as modified or amended, may be finally adopted. (C) The rates, fees or charges adopted for any class of users or properties served shall be extended to cover any additional users of properties thereafter served which shall fall within the same class, without the necessity of any further hearing or notice. (D) Except as expressly provided by law, no free water or sewer services shall be rendered by the Association and no discrimination shall exist in the fees, rates and charges for the users of the,same class. SECTION 3.07. SYSTEM DEVELOPMENT CHARGES. (A) The Association may levy and collect system development I charges for the water system and the sewer system, or both, for capital improvements and debt service on such capital improvements as thereafter specified. (B) Within the Service Area, under the following conditions,. the Association may levy and collect system development charges for the water system and the sewer system, or both, for capital improvements and debt service on such capital improvements as hereinafter specified, within the Service Area, under all of the following conditions: 22 • • 4( 4P* (1) Whenever a property owner or his •authorized representative connects an existing structure to a system or portion thereof owned or operated by the Association; (2) Whenever a property owner or his authorized representative applies for a building permit to alter an existing structure previously connected to a water system or sewer system owned or operated by the Association, where such alteration increases the potential demand on the Association's systems; and (3) Whenever a property owner or his authorized representative applies for a building permit to construct a structure or alter a structure on property which according to a plan adopted by the Association or the, county is scheduled in the future to be connected to a system owned or operated by the Association even though the property owner or his representative may receive interim water or interim sewer service from a source other than the Association. (C) If the structure on the property for which a system development charge has been paid is not authorized to connect to the Association's systems within 10 years of the date of such payment, the property owner holding legal title at the end of the 10-year period shall be eligible for a refund of the system development charge without interest. The Association shall notify ,,• the property owner of his eligibility for a refund by mailing notice and an application for refund to the property owner. such notice shall be sent by,certified or registered mail with return 23 receipt requested to the then owner of record as shown on the most recent ad valorem tax roll. Any property owner eligible for a refund shall file written application with the Association for a refund within 90 days of the date of mailing of the notice by the Association or such property owner shall be deemed to have waived any right to a refund, and the Association shall be entitled to retain and apply the system development charge for capital water and sewer improvements. Failure to construct the structure for which a system development charge has been paid shall not constitute grounds for a refund, nor shall delay or failure to receive the mailed notice of eligibility for a refund toll the 90- day time limit within which an application for refund must be filed. f (D) All system development charges imposed for the water system shall be segregated from all other funds held by.the Association and placed in a special fund. Except as otherwise provided by the resolution authorizing the issuance of bonds or other obligations of the Association, monies from this fund shall not be transferred or used for any purpose other than capital improvements for raw water supplies, water treatment facilities, water transmission mains, storage facilities, pumping facilities, ' distribution lines, and related facilities required to provide new connections by new customers and for payment of debt service on public obligations issued to finance any such capital improvements. Capital improvements which are designed to benefit existing 24 kb customers of the Association shall not be paid for with monies from this fund. (E) All -..system development charges imposed for the sewer system shall be segregated from all other funds held by the Association and placed into a special fund. Except as otherwise provided by the resolution authorizing the issuance of bonds or other obligations of the Association, monies from this fund shall not be transferred or used for any purpose other than capital improvements for sewage treatment and disposal facilities, sewage transmission facilities, reclaimed water treatment facilities, reclaimed water distribution facilities and related facilities required to provide new connections by new customers and for payment of debt service on public obligations issued to finance any such capital improvements. Capital improvements which are designed to benefit existing customers of the Association shall not be,paid for with monies from this fund. r. (F) All system development charges shall be reviewed at least every three years by the Association to determine that the charges are equitable and proportionate to the current estimate of costs for providing the capital improvements for which the charges are imposed. The Association may change or revise the schedule of system development charges upon compliance with the notice and hearing requirements set forth for the adoption of rates, fees and other charges. (G) The Association, in its discretion, may permit the owners of existing structures which connect to the Association's system F to pay system development charges on an installment basis with interest over a period not to exceed 10 years. In the event that system development charges shall not be paid as and when due, any unpaid balance thereof and all interest accruing thereon may also be a lien on any parcel of property affected thereby. In the event that any such system development charge shall not be paid as and when due and shall be delinquent for 30 days or more, the Association may file a notice of lis pendens and the unpaid balance thereof and all interest accrued thereon at the legal rate, together with attorney's fees and costs, may be recovered by the Association in a civil action, and any such lien and accrued interest may be foreclosed or otherwise enforced by the Association by action or suit in equity as for the foreclosure of a mortgage on real property. (11) System development charges may be pledged to the payment of bonds or other obligations of the Association, provided that the Association has agreed in the resolution authorizing such bonds or other obligations that it maintain net revenues, together with special assessment proceeds and other revenues derived by the Association, exclusive of system development charges, equal to at least 100 percent of the debt service on such bonds or obligations. i SECTION 3.08. REPORTING REQUIREMENT, BOOKS AND RECORDS. (A) The County or its designee shall have the right to review all records maintained by the Association on five days' written notice. 26 (B) An annual audit of the Association's books and records shall be prepared by an independent Florida certified public accounting firm in accordance with generally accepted accounting principles and shall be delivered to the County, at the Association's expense, within 120 days of the twelve month period ending the Association's fiscal year. Said audit shall include, but not be limited to the following elements: (1) balance sheet; (2) statement of revenue and expenses segregated by type of services (water and wastewater); and areas served (Okeechobee County or Glades County); (3) statement of cash flows; and (4) notes to financial statements.] The Association shall establish and maintain at its own expense during the term of this franchise, a bookkeeping, accounting and recordkeeping system to facilitate the preparation of said audit and ,shall preserve for at least six years from the date from their preparation, full, complete, and accurate books, records, and accounts that have been consistently applied in accordance with generally accepted accounting principles. SECTION 3.09. COMPLAINTS. (A) All service complaints shall be directed to the Association. The County shall notify the Association of any complaint communicated to the County. All complaints received by the Association shall be immediately recorded in the complaint log maintained by the Association. Complaints shall be resolved within - - 27 24 hours after being received by the Association. When a complaint is received after 12:00 noon on a Friday or the day preceding a holiday, it sha11 be resolved by the Association no later than the next tegular working day. (B) The Association shall supply the County on a periodic basis, no less.often than monthly, a typed statement of all oral or written complaints (including copies of written complaints received) on a complaint form or other written format approved by the County, from any source and whether or not received and forwarded to the Association by the County. Such statement shall be in a format indicating the date and hour of inquiry or complaint received, the nature of the complaint received and a full ' explanation of the disposition of the compla nt. The Association shall establish procedures acceptable to the County to ensure that all customers are notified as to complaint procedures, rules, and regulations, rates and fees charged or imposed by the Association. The,.. County may from time to time contact customers directly regarding the quality of service and the disposition of complaints. SECTION 3.10. PERFORMANCE MONITORING. (A) In order to fully implement the provisions of this Franchise Agreement, a panel for the review of the quality of services provided shall be created to consist of three members, one member representing the Association, one member representing the County, and a third independent member chosen by the previously named two members. It shall be the function of this committee to review, report and make- recommendations to the County and the 28 Association, not less often than annually, regarding the quality of services provided for herein. For the purpose of this function, "service" shall be defined as the performance of the duties, tasks and obligations of the Association enumerated in this Franchise Agreement performance of such other duties, tasks and obligations as are generally and reasonably regarded as incident to the safe and satisfactory discharge of. responsibilities in the water or wastewater utility industry. SECTION 3.11. MANDATORY' USE OF ASSOCIATION FACILITIES AND SERVICES. All lands, buildings, premises, persons, firms and corporations or other users within the Service Area, shall use the water and sewer facilities of the Associationj or any other service provider authorized by the County, when end where ever such services and facilities become available; and for such purposes, the Association shall be entitled to seek injunctive relief, either mandatory or prohibitory, to enforce the use of Association facilities or services. SECTION 3.12. PLANNING REQUIREMENTS. 1. (A) Within three years after the effective date of the Franchise Agreement, the Association shall adopt a master plan which identifies current customers, projects and future customers; profiles customers (residential, commercial, industrial); reviews and generally inventories all existing infrastructure and treatment facilities within the Service Area; identifies a capital improvement program for the Association; reviews all current permits and compares exiting regulations to projected regulations; 29 • Pb /I identifies and evaluates potential acquisitions or service 46�� expansions; evaluates Association staffing; provides for detailed mapping of system facilities; provides for hydraulic analysis of system facilities, both existing and proposed; evaluates present and future sources of raw water and the treatment requirements for those sources in terms of capacity, reliability and economy; provides for an analysis of all, available wastewater alternatives, including surface water discharge, wetlands discharge, percolation facilities, spray irrigation and deep well injection; identifies reclaimed water storage alternatives and wetweather back-up alternatives; and identifies current and potential high volume users of reclaimed water. Thereafter, the Association shall review, and if necessary amend the master pl�n periodically, but not less often than every three years. (B) Treatment facility construction or expansion or Jine extension policies adopted by the Association shall be in furtherance of land development regulations adopted by the County. (C) The construction or expansion of any portion of the Association's systems, or major alterations which affect the quantity or quality of the level of service of the Association's systems, which is undertaken or initiated by the Association shall be consistent with the applicable local government comprehensive plan of the County adopted pursuant to Chapter 163, Part II, Florida Statutes; provided, however, that this obligation shall not be construed to allow a local government comprehensive plan to require the Association'to construct, expand, or perform a major - - - 30 alteration of any public facility which would result in the impairment of covenants and agreements relating to bonds or other obligations, issued or assumed by the Association. (D) When the County has issued a development order which approves the construction of public facilities or has issued a development order pursuant to Chapter 380, the County shall not use the requirements of this section to limit or modify the rights of the Association to approve, construct, modify, operate, or maintain public facilities authorized by the development order. (E) The Association shall take no action which is inconsistent with applicable comprehensive plans, land development ordinances, or regulations adopted by the County. SECTION 3.13. COMPLIANCE WITH OTHER LAWS, ORDINANCES AND REGULATIONS. (A) This franchise does not and shall not be construed to relieve the Association from any obligation to address any permit, condition, term, approval or restriction and shall not relieve the Association or its successors, of the obligation to comply with any law, ordinance, rule or regulation governing said permitting requirements, conditions, approvals or restrictions. (B) All extensions of water and sewer system facilities and service shall be subject to the approval of the County and said approval will not be granted if such grant would be inconsistent with the County's comprehensive land use plan or zoning ordinance. (C) Nothing in this ordinance shall be construed as a surrender by the County,of its right or power to pass ordinances 31 regulating the use of sidewalks, alleys, rights way and easements. The Ass(iciati -1 shall abide by all such/ ordinances relative to i' act.ivitips. (D) This Franchi Agreemei: not and shall not be construed :►:: a devel pr it agreement pursuant to the Florida Local Government Developm• greem(nt Act, Sr,ctions 163.3220-163.3243, Florida Statutes. i 32 ARTICLE IV GENERAL SECTION 4.01. INDEMNIFICATION. The County shall in no way be liable or responsible for any accident or damage that may occur in the construction, operation and maintenance by the Association of the water or sewer systems hereunder, and the acceptance of this Ordinance shall be deemed the agreement on the part of the Association to defend, fully protect, indemnify and hold harmless the County from and against each and every claim, demand or cause of action in any and all liability, costs, expense (including but limited to reasonable attorneys' fees, costs and expenses incurred - in the defense of the County, even if incident to,appellate, post judgment or bankruptcy proceedings), damage or loss in connection therewith which may be made or asserted by the Association, the Association's employees or agents, or any third parties (including but, not limited to the County) on account of personal injury, death, damage or property damage caused by, or arising out of in any way incidental to or in connection with its performance hereunder. At the election of the County, the Association shall contest or defend the County against any such claims of liability against the County. The County shall in any event, have the right, through counsel of its choice, to control the defense or response to any such claim to the extent it could affect the County financially, this indemnification shall also include any claim or liability arising from or in any way related to actual or 33 .• 14. threatened damage to the environment, including agency cost by investigation, personal injury or death, or damaged property. Only those matters ',which are determined by a final, nonappealable judgment to be the result of the negligence of the County shall be excluded from the Contractor's duty to indemnify the County, but only to the extent of the negligence of the County. For the purpose of this section, the Aerm "County" shall be deemed to include the County Board of Commissioners and its agents, employees and affiliates. For purposes of this indemnification, "claims" shall mean and include all obligations, actual and consequential damages and costs reasonably incurred in the defense of any claim against the County, including, but not limited to reasonable accountants', attorneys' and expert witness` fees and costs of investigation and proof of facts, court costs, other litigation expenses, and travel and living expenses. The County shall have the right to defend such claim against it in any such manner as the County deems appropriate or desirable in its sole discretion. The indemnity shall continue in full force and effect subsequent to and not withstanding the expiration or termination of the franchise granted herein. SECTION 4.02. CHANGE OF LAW. Changes in law in the future, i including, but not limited, legislative, judicial or administrative changes, which mandate certain actions or programs for local governments or water and sewer utility providers may require changes or modifications in some of the terms or conditions or obligations under the franchise granted herein. Noticing contained 34 • in this Franchise Agreement shall require any party to ak, act or function contrary to law. SECTION 4.03. AMENDMENTS AND WAIVERS. No amendment, supplement, modification or waiver of the Franchise Agreement granted herein shall be binding unless executed in writing by the County and the Association. No waiver of any of the provisions of this Ordinance shall be deemed or constitute a waiver of other provisions of this Ordinance, whether or not similar, unless otherwise expressly provided: Each such amendment, supplement, modification or waiver of this Ordinance shall be filed with the Clerk of the Circuit Court of Okeechobee County. SECTION 4.04. SEVERABILITY. The provisions of this Ordinance are severable. If any section, subsection,; sentence, clause or '• I provision is held invalid by any court of competent jurisdiction, the remaining provisions of this Ordinance shall not be affected thereby; except that if the County finds the invalidated portion to be an essential part of this franchise the County may declare r this franchise terminated. SECTION 4.05. ALTERNATIVE METHOD. This Ordinance shall be deemed to provide an additional and alternative method for the doing of the things authorized hereby and shall be regarded as supplemental and additional to powers conferred by other laws, and shall not be regarded as in derogation of any powers now existing or which may hereafter come into existence. This Ordinance, being necessary for the welfare of the inhabitants of the County, shall be liberally construed to effect the purposes hereof. 35 SECTION 4.06. EFFECTIVE DATE. This Ordinance shall not take effect unless the Association files an acceptance with the Clerk of the Board of County Commissioners, in the form attached as Appendix A, within seven (7) days of enactment by the Board and, in such an event, a certified copy of this Ordinance shall be filed with the Department of State by the Clerk of the Board of County Commissioners within ten (10) days of enactment by the Board and shall take effect upon receipt of official acknowledgement of filing as provided in Section-125.66(2), Florida Statutes. DULY ENACTED, by the Okeechobee County Commissioners this _ day of April, 1993. BOARD OF;COUNTY COMMISSIONERS OREECHgBEE COUNTY, FLORIDA (SEAL) Lim ATTEST: Clerk 36 Chairman I m LJ APPENDIX A FORK OF ACCEPTANCE I This Acceptance is made and entered into this day of , 1993, by the Okeechobee Beach Water Association, Inc., a Florida corporation (hereinafter the "Association"), after complying with the requirements of Section 617.1202, Florida Statutes, and is hereby delivered to the Board of County Commissioners of Okeechobee County, Florida, as the governing body of Okeechobee County (hereinafter the "County"). WHEREAS, this Acceptance shall be an appendix to the ordinance granting a franchise to the Association and its successors and assigns to operate and maintain water and sewer systems within a portion, of the unincorporated area of Okeechobee County (hereinafter the "Ordinance"). W I T N E S S E T iii That the Association for and in consideration of the sum of ' ten dollars ($10) and other valuable consideration paid by the County, receipt of which is hereby acknowledged, hereby conveys, grants, bargains and sells unto the County, its successors and assigns, the right to acquire the systems, facilities and operations of the Association on the terms andiconditions contained in the Ordinance. Said ordinance (adopted as Okeechobee County Ordinance No. 93-_) is incorporated herein by reference. Further; that the Association by its execution of phis Acceptance hereby agrees, for itself and its successors and assigns, to accept all of the rights and privileges granted by the Ordinance and be bound by all the obligations thereunder as a non- excl`Usive franchisee of the County. This Acceptance shall become effective upon enactment of the Ordinance by the County and shall run with the land and property of the Association, its successors and assigns. IN WITNESS WHEREOF, the Association has caused these presents to executed the date and year first above written. i OKEECHOBEE BEACH ASSOCIATION WATER, INC., a Florida corporation By. Witness President Witness A-1 STATE OF FLORIDA COUNTY OF OKEECHOBEE The foregoing Acceptance was acknowledged before me by , who is personally known to me, as President of the Okeechobee Beach Water Association, Inc., a Florida corporation, on behalf of the corporation. WITNESS my hand and Official Seal this day of , 1993. Signature of Notary Public Name of Notary Public typed, printed or stamped My Commission Expires: • I I hereby certify that this Acceptance was duly filed with the Clerk to the Board of County Commissioners of Okeechobee County, Florida, pursuant to the terms of Okeechobee County ordinance No. 93- , on this day of , 1993. (SEAL) ATTEST: Clerk A-2 rh SERVI CE AREA, Bcgintuing at the Township line between T37S and T38S oil the Martin County line proceed west along the north section line of sections 1, 2 and 3 in 1-38S to the West corner of Section 3 thence north along the east section line of section 33, T37S to the northeast corner of section 33 thence west along the north section line of section 33 and 32 to the half section line of section 32, 29 thence north on the half section line of section 29 to the east west section line between sections 29 and 20 thence west along this section line along the north side of sections 29, 30 T37S, R36E and section 25 and section 26, T37S, R35E to the west section line of section 26 then south along the west section line of section 26 to its southwest corner thence west along the north section line of section 34 to the northwest corner of section 34 thence south along the west section line of section 34 to the north 1/4 section line, thence west on the north 1/4 section line to the half section line of section 33 thence south on the half section line to the east west 1/2 section line to the north south section line between sections 33 and 32 thence south to the south west corner of section 33 thence west along the south section line of section 32 to the southwest corner of section 32 thence south to the east west half section line of section 5, T38S, R35E thence west to the Township Range line between R35E and R34E thence south to the north 1/4 section line of section 1 thence west on the south section line of section 1 to the Hoover Dyke Road, thence southeast along the Hoover Dyke Road to Lake Okeechobee, thence northeast and south along Lake Okeechobee shore line to the Martin County line, thence north along the Martin County line to the point of beginning. 1 LESS AND EXCEPT those lands Iving 100 feet on each side of U.S. I-liohway 441 from the Okeechobee City limits south to the intersection of State Road 78 and those parcels along U.S. Highway 441 being served by the City of Okeechobee as of the effective date of this Ordinance. ALSO LESS AND EXCEPT the following subdivisions: Ousley Estates, recorded in Plat Book 5, Pages 36 and 37, and Palm Village Ranch, recorded in Plat Book 6, pages 34 and 35, Public Records of Okeechobee County, Florida: /4. SERVICE AREA Beginning at the Township line between T37S and T38S on the Martin County line proceed west along the north section line of sections 1, 2 and 3 in T38S to the West corner of Section 3 thence north along the east section line of section 33, T37S to the northeast corner of section 33 thence west along the north section line of section 33 and 32 to the half section line of section 32, 29 thence north on the half section line of section 29 to the east west section line between sections 29 and 20 thence west along this section line along the north side of sections 29, 30 737S, R36E and section 25 and section 26, 737S, R35E to the west section line of section 26 then south along the west section line of section 26 to its southwest corner thence west along the north section line of section 34 to the northwest corner of section 34 thence south along the west section line of section 34 to the north 1/4 section line, thence west on the north 1/4 section line to the half section line of section 33 thence south on the half section line to the east west 1/2 section line to the north south section line between sections 33 and 32 thence south to the south west corner of section 33 thence west along the south section line of section 32 to the southwest corner of section 32 thence south to the east west half section line of section 5, 1-38S, R35E thence west to the Township Range line between R35E and R34E thence south to the north 1/4 section line of section 1 thence west on the south section line of section 1 to the Hoover Dyke Road, thence southeast along the Hoover Dyke Road to Lake Okeechobee, thence northeast and south along Lake Okeechobee shore line to the Martin County line, thence north along the Martin County line to the point of beginning. I LESS AND EXCEPT those lands lying 100 feet on each side of U.S. I-liolnvay 441 from the Okeechobee City limits south to the intersection of State Road 78 and those parcels along U.S. Highway 441 being served by the City of Okeechobee as of the effective date of this Ordinance. ALSO LESS AND EXCEPT the following subdivisions: Ousley Estates, recorded in Plat Book 5, Pages 36 and 37, and Palm Village Ranch, recorded in Plat Book 6, pages 34 and 35, Public Records of Okeechobee Countv, Florida. 04/19/93 13:39 3 763 1031 CASSELS & DjVLL z00:t PUN D. CASSELS, Jli RJANN NICCALL LAW OFFICE OF CASSELS & MCCALL 40ONW SECOND STREET • POST OFFICE BOX 968 • OKEECHOBEE FLORIDA 34972 • TELEPHONE 813.763.3131 • FAX 783.1C April 19, 1993 Michael W. Morrell, Esquire Attorney at Law 310 West College Avenue Tallahassee, FL 32301-1406 Re: Report on Case Status Our File No. 7202 DOAH Case No. 92-4909 Dear Mike: As our telephone conversations sometimes tend to get sidetracked, permit me to reiterate several points: 1. _ Okeechobee County has in the past, and continues to advocate new creation of a utility authority. Ia fact, it was the County's suggestion initially to have an appraisal performed. 2. That the newspaper article of Matt Perez which attributed to me a comment that the utility authority was a dead issue, was a misquote. As stated above, it is my client's position that an appropriate utility authority will best serve the needs of all residents of Okeechobee County. I would not have made a statement contrary to my client's position. 3. The two million dollar number submitted by the Finance Director was discussed at a meeting between the Chairman of the County Commission and the Mayor the previous Friday. Both the Mayor and the Chairman agreed that each government would provide the other with a figure for discussion. The County has yet to receive a number from the City. 4. As I indicated previously, I continue to feel that we made substantial progress toward settlement and would like to think that the remaining issues can be resolved. Toward that end, I would rather spend the next thirty (30) days settling as opposed to preparing for an administrative hearing. -3351 EXHIBIT "If" & 13 763 1031 hffichael W. page °rreli, Esquire I April 19 1993 status Teelephone co Jiff Part for nference draFe jn 1i� erspec Iv y preview bur date, t Indic to settin u of th ng that conference, to forward it this Matter Or an recent the recent conference, It You that I had drafte Would not be the j'�g a��r1'�g Se direct re events and acco�n'g1y11 r that , rafted d houl quest din k e propose ful, please advise the Other hanou d cur, kindall ly execute hlrty a3a"doned� naa With kindes Sincerely, t regards, I mnjediatel , should t am Y so that I You feel thatthe 10 titreportas Prior InJght file a unilateral an her d go-r tion - report. N JDC/tsnD. C`9SSELS, Jl�. .3351