This division shall be known as the "City of Wilmington Firefighters' Pension Act of 1984," all the terms of which are referred to as the plan in this division. This plan shall be effective July 1, 1984.

(Code 1968, § 28A-100)

The predecessor to this plan is the firefighters' pension plan described in divisions 1 and 3 of this article, all the terms of which are hereinafter referred to as the prior plan. Members of the police department shall participate in this plan or in the prior plan, but not both, in accordance with section 39-244.

(Code 1968, § 28A-101)

The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Actuarial equivalent means the actuarial determination of the present value of a benefit, determined using the UP-84 mortality tables for participant mortality, the UP-84 mortality tables set back three years for beneficiary mortality, and assuming a rate of investment return of eight percent compounded annually.

Authorized leave of absence means a period of absence from employment authorized in accordance with the fire department personnel regulations. Such period of absence shall not cause a break in service, but such period shall not be credited toward the calculation of years of service. The fire department shall notify the board of trustees of any authorized leave of absence.

Base salary means base salary as established by ordinance or employment contract and excluding all other compensation such as, for example, overtime, acting-out-of-rank pay, or holiday pay; provided, that beginning in fiscal year 1994 the base salary for participants as applicable at the time of retirement shall include the amount of the annual lump sum payment for "allotted days" as such term is used in the collective bargaining agreement between the city and the firefighters for the fiscal year in which the person retires, if the applicable collective bargaining agreement for that fiscal year in which the person retires provides for such payment for "allotted days"; further provided that an amount equal to six percent pension contribution shall be deducted from such annual lump sum payment.

Board of trustees means the board of trustees of the firefighters' pension plan, as provided in section 39-251.

Break in service means voluntary termination of a participant's employment, followed by a period of 365 days or more during which such participant is not reemployed in the department. Involuntary termination of employment not due to any fault or neglect of the participant shall not cause a break in service.

Continuous period of service means a period of service during which a participant has not incurred a break in service.

Code means the Internal Revenue Code of 1954, as amended from time to time.

Final annualized base salary means the base salary of the participant as provided for the fiscal year in which the participant leaves the employ of the city.

Participant means a member of the fire department who is eligible to participate in this plan in accordance with section 39-244.

Plan means the provisions of the City of Wilmington Firefighters' Pension Act of 1984, being this division.

Prior plan means the provisions of the City of Wilmington Firefighters' Pension Plan, being divisions 1 and 3 of this article.

Retirement date means the date on which a participant retires under this plan and begins to receive retirement benefits:

(1)

Normal retirement date means the first day of the month coincident with or next follow ing the participant's termination of employment after the completion of 20 years of service.

(2)

Early retirement date means the first day of the month coincident with or next following a participant's termination of employment after the completion of 15 years of service.

Termination of employment means separation from employment, whether voluntary or involuntary, other than in connection with an authorized leave of absence.

Years of service means those years of service which will be credited under the plan only with respect to employment with the city as a member of the fire department in accordance with the rules of this subsection as provided below:

(1)

Prior to July 1, 1984, whole and partial years of service will be credited for service prior to July 1, 1984, in accordance with the terms of the prior plan.

(2)

After June 30, 1984, a participant will be credited with service based on the elapsed time method described in this subsection: One year of service is credited for each 365 days of employment. A day of employment is credited for each day of the period beginning on the date the participant commences employment, or recommences employment, and ending on the date the participant terminates employment. Where a participant's aggregate days of employment include a fractional period of less than 365 days, that fractional period shall be disregarded.

(Code 1968, § 28A-102; Ord. No. 94-033(sub 1), § 1, 6-30-94)

Cross reference— Definitions and rules of construction generally, § 1-2.

(a)

All members of the fire department of the city who are participants shall be eligible to participate in this plan or the prior plan, but not both, in accordance with the rules of this section.

(b)

Each member of the fire department whose employment with the city fire department commenced on or after July 1, 1978, shall become a participant in this plan, if he files with the board of trustees a written election to participate in this plan rather than in the prior plan. His entry date into the plan shall be the date he files such election. This election shall be effective only if made no later than June 30, 1985. Any such election shall be irrevocable. Any such member of the fire department who does not make a timely election shall continue to participate in the prior plan.

(c)

Each member of the fire department whose employment with the city fire department commences on or after July 1, 1984, shall become a participant in this plan on, and his entry date shall be, the date of his employment.

(d)

Each member of the fire department whose employment with the city fire department commenced on or before June 30, 1978, shall continue to participate in the prior plan, except as provided in subsection (e).

(e)

Any member of the fire department whose employment in the department was terminated prior to July 1, 1984, and who returns to the fire department after June 30, 1984, shall not continue to participate under the prior plan, but shall instead become a participant in this plan, with his past years of service credited.

(Code 1968, § 28A-103)

(a)

Normal retirement. A participant may retire at any time on or after his normal retirement date and receive a monthly pension for life at the annual rate of one-half of the amount of his final annualized base salary at the time of retirement, plus, if the service of such participant was performed during a continuous period of service, 2½ percent of such salary multiplied by the number of years of service in excess of 20 years, to a total maximum of 75 percent of such salary at the time of retirement.

(b)

Early retirement. A participant may retire at any time on or after his early retirement date and receive a monthly pension for life at the annual rate of 2½ percent of his final annualized base salary at the time of retirement, multiplied by his years of service, but such benefit shall be reduced by the factor of 0.4 percent times the number of full calendar months by which his actual retirement date precedes his normal retirement date.

(c)

Termination of employment prior to eligibility for benefits. A participant who terminates employment shall not be entitled to any benefit under this plan unless he has received credit for at least five years of service. If the participant has met this requirement (a terminated vested participant), he shall be entitled to a monthly pension for life at the annual rate of 2½ percent of his final annualized base salary, times years of service, times the vested percentage indicated in the table below depending upon the number of years of service:

However, any terminated vested participant under this plan shall not begin to receive a pension under this subsection until the 20th anniversary of his date of hire; provided, however, that at the option of the terminated vested participant, he may begin to receive his pension on or after the 15th anniversary of his date of hire, with the pension payments reduced in the same fashion as the early retirement provisions of subsection (b) of this section.

(d)

Demotion or dismissal of deputy chief or chief. Upon a demotion or termination without cause of any participant in this plan holding the rank of deputy chief or chief, immediately prior to such demotion or termination such participant may instead retire at the rank he held immediately prior to such demotion or termination, with his pension benefits calculated as if it were a normal retirement. If such deputy chief or chief has not been credited with at least 20 years of service in the department, such deputy chief or chief must first, prior to receiving his pension pursuant to this paragraph, contribute to the plan established in this division an amount equal to six percent of his current annualized base salary times the number of whole and partial years needed to reach 20 years of service from the date of such demotion or termination. Upon such contribution, such deputy chief or chief shall then receive his pension under this plan calculated using the rank he held immediately before the demotion or termination, as if it were a normal retirement.

If a deputy chief or chief of the department is demoted without cause and has not been credited with at least 20 years of service in the department at the time of the demotion, he shall also have the option to accept the demotion and continue to work at the lower rank. Upon achieving his 20th year of service, he may then retire and receive a pension calculated using the then-current salary of the rank he held immediately prior to such demotion, as if it were normal retirement, but this option will only be available if such deputy chief or chief retires upon achieving his 20th year of service.

(Code 1968, § 28A-104; Ord. No. 12-003, § 1, 2-16-12)

(a)

The surviving spouse of any member of the fire department subject to this plan who shall have lost his life in the performance of duty shall receive from this plan a lump sum equal to the firefighter's final annualized base salary at the time of his death; the surviving spouse shall also receive, commencing on the first day of the month following the firefighter's death, regular monthly payments at the annual rate of one-half of the firefighter's final annualized base salary at the time of his death, until the surviving spouse's death or remarriage. In addition, commencing one year after the firefighter's death each surviving child, under the age of 18, born or conceived before such death shall receive a lump sum equal to the actuarial equivalent of a benefit defined as $50.00 per month per child, with a maximum payment of $150.00 per family per month for such dependent children, to continue until the child or children receiving the benefits attains the age of 18.

(b)

The surviving spouse of any member of the fire department or retired member under this plan who shall have died after receiving credit for at least seven years of service under circumstances other than in the performance of duty shall receive a monthly pension equal to one-half of the amount of pension such firefighter would have been entitled to as a retired firefighter at the time of his death, until the surviving spouse's death or remarriage. This benefit shall be payable immediately; provided, however, that no surviving spouse shall be entitled to a pension under this plan who shall have married such member during his last illness; and provided further, that if any such surviving spouse shall receive any money under and by virtue of 19 Del. C. ch. 23 (§ 2301 et seq.) (the workers' compensation law), such money so received by her shall be deducted from the amount that she would be entitled to receive under this subsection.

(c)

The sole surviving dependent parent of any sworn firefighter subject to this plan who shall have lost his life in the performance of duty, or who shall have died after receiving credit for at least seven years of service performed during a continuous period of service under circumstances other than in the performance of duty, shall receive a lump sum equal to the actuarial equivalent of a benefit defined as a monthly pension for the parent's life equal to one-half of the amount of pension such firefighter would have been entitled to as a retired firefighter at the time of his death; provided, however, that if such dependent parent shall receive any money under and by virtue of 19 Del. C. ch. 23 (§ 2301 et seq.) (the workers' compensation law), such money so received by the parent, or to be received by the parent, calculated in the same fashion as the lump sum distributed pursuant to this subsection, shall be deducted from the amount that the parent would be entitled to receive under this subsection.

(d)

Upon the death of any surviving spouse who is receiving pension benefits under this plan, survived by a child or children of the deceased member under the age of 18 years, each such child shall receive a lump sum payment equal to the actuarial equivalent of the benefit he would have received if the spouse's pension had been divided per capita among the children under age 18 and paid to such children until the youngest child attained age 18. Such lump sum shall be paid to such child or children in lieu of the benefits paid to such child or children pursuant to subsection (a) of this section.

(e)

Payment of benefit to an unmarried participant. If a terminated vested participant is not married on his retirement date, his pension will be paid to him monthly in the form of a ten-year certain and life basis annuity. That is one-twelfth of his annual pension will be paid to him on the first day of each month beginning with his retirement date and continuing until and including the first day of the month in which he dies. If he dies before 120 monthly payments have been made to him, these monthly payments will continue to his designated beneficiary, or the beneficiary's estate, until a total of 120 monthly payments have been made to him and his beneficiary, or beneficiary's estate, combined.

(Code 1968, § 28A-105; Ord. No. 97-101, § 1, 1-8-98)

(a)

Whenever a member of the fire department subject to this plan shall have become permanently disabled or incapacitated so as not to be able to be employed in any capacity, from a job-connected injury, he shall be entitled to receive from this plan a monthly pension for life at the annual rate of 75 percent of the amount of his final annualized base salary at the time of retirement.

(b)

Whenever a member of the fire department subject to this plan shall have become totally or partially disabled or incapacitated due to job-connected injury, which permanently disables such firefighter to the extent that he is unable to perform regular active duty, but does not preclude other employment, the firefighter may be retired upon his own application or by the chief of fire pursuant to section 39-249. Such firefighter will then receive a monthly pension for life at the annual rate of 50 percent of his final annualized base salary, payable immediately. If a disabled former member receives a pension under this subsection and is employed elsewhere, this disability pension will be reduced by the amount of the other earnings and workers' compensation payments for loss of earning capacity to the extent that the participant's total earnings from the disability pension, workers' compensation, and/or other earnings exceed the base salary paid to then-current firefighters in the rank of the disabled participant at the time of his disability retirement. This reduction in pension payments will continue until the participant's 20th anniversary of his date of hire.

(c)

Whenever a member of the fire department subject to this plan who has received credit for at least seven years of service shall have become totally or partially disabled or incapacitated due to a non-job-connected injury, which permanently disables such firefighter to the extent that he is unable to perform regular active duty, the firefighter may be retired upon his own application or by the chief of fire pursuant to section 39-249. Such firefighter will then be entitled to a monthly pension for life at the annual rate of the product of 2½ percent of his final annualized based salary, times years of service, times the vested percentage as described in section 39-245(c). Pension payments made under this subsection shall not begin until the 20th anniversary of the participant's date of hire; provided, however, that the participant shall have the option to receive pension payments under this subsection on or after the 15th anniversary of his date of hire, with the pension payments under this subsection reduced in the same fashion as the early retirement provisions of section 39-245(b).

(d)

Whenever a member of the fire department subject to this plan, who has received credit for at least seven years of service, shall have become permanently disabled or incapacitated so as not to be able to be employed in any capacity, from a non-job-connected injury, he shall be entitled to a monthly pension for life calculated in the same fashion as subsection (c) of this section; provided, however, that such benefit shall be payable immediately and shall not be reduced by the early retirement provisions of section 39-245(b).

(e)

Any member of the fire department who has received credit for at least 20 years of service and who is eligible for retirement, and who continues to work for the department and who is subsequently disabled from a non-job-connected injury, is not eligible to receive a disability pension, notwithstanding any other provisions of this division to the contrary.

(Code 1968, § 28A-106)

Notwithstanding the provisions of this division or of any general or special law to the contrary, any condition or impairment of health caused by tuberculosis, heart disease, terminal cancer, or emphysema, resulting in total or partial disability of any member of the fire department of the city who successfully passed the physical examination on entry into such service, which examination failed to reveal any evidence of such condition, shall be presumed to have suffered or incurred such ailments in the line of duty, unless the contrary be shown by competent evidence. Any disability as specified in this section which removes the member of the fire department from active service shall entitle the member to the benefits of this division regardless of the period of service at the time the disability occurs.

(Code 1968, § 28A-107)

No member of the fire department subject to this plan shall be retired until he has been duly notified by the chief of fire of his intention to so retire him, and until he has had a fair opportunity of being heard in opposition thereto; provided, that any member of the fire department subject to this plan deeming himself entitled to the benefits of this division may make written application to the chief of fire for that purpose. No member of the fire department shall be placed upon such retired list unless he shall have first undergone an examination as to his physical condition to be made by a board of physicians, consisting of the city medical provider, the family physician of such firefighter, and a third reputable physician of the city to be selected by the other members of such board. Such board shall report in writing to the chief of fire the results of such physical examination, together with a statement as to how far, in the opinion of such board, the firefighter examined is incapacitated from performing regular active duty in the fire department. Upon the receipt of such report of the board of physicians, the chief of fire may retire such firefighter in accordance with the provisions of this division.

(Code 1968, § 28A-108; Ord. No. 21-033 , § 2, 6-17-21)

The chief of fire may at any time require any firefighter receiving a disability pension under this plan who has not passed the 20th anniversary of his date of hire to be reexamined by the city medical provider or some other competent physician authorized by the chief of fire to act in the premises, and if on such reexamination, such firefighter is reported capable of performing regular duty, he may be required by the chief of fire to return to regular duty in the same rank and grade in which he was serving at the time of his retirement.

(Code 1968, § 28A-109; Ord. No. 21-033 , § 2, 6-17-21)

(a)

The board of trustees of the firefighters' pension plan shall consist of the chief of fire, the city treasurer, the director of finance, the human resources director, the chairman of the finance committee of the city council, the chairman of the public safety committee of the city council, and five active or retired members of the fire department of the city who are enrolled in the firefighters' pension plan, such five members to be elected every four years by vote of the active and retired members of the fire department of the city who are enrolled in the firefighters' pension plan. Any active or retired member of the fire department of the city who is enrolled in the firefighters' pension plan and who would like to serve on the board of trustees shall submit his or her name in writing to the chief of fire during a timeframe designated by the chief prior to the elections in order to be placed on the ballot. Any seat on the board of trustees up for election will first be filled by an active member enrolled in the firefighters' pension plan seeking a seat in accordance with the number of votes received. If an insufficient number of active members enrolled in the firefighters' pension plan seek a seat, the remaining seat(s) will then be filled by a retired member enrolled in the firefighters' pension plan in accordance with the number of votes received. Those members of the board of trustees elected as of January 1, 2002, shall serve until December 31, 2006. The first general election shall occur in January 2006 and every four years thereafter.

The chief of fire shall be the president of the board of trustees of the firefighters' pension plan. The board of trustees of the firefighters' pension plan shall appoint a secretary from among their own number. The secretary shall execute a bond for the faithful performance of his duties with respect to the firefighters' pension plan in such sum and form with such surety as will be satisfactory to the board of trustees. The cost of such bond shall be defrayed from the proceeds of the plan.

(b)

This plan shall be administered by the board of trustees which may make rules and regulations not inconsistent with this plan for the purposes of carrying out its administrative duties. It shall give appropriate advance notice to participants and beneficiaries of action required in connection with optional benefits under this plan. It may hire consultants to assist with any of its administrative duties. The board of trustees shall have the sole authority to interpret the plan and to determine all questions of eligibility, rights, and benefits under this plan. In all such actions it shall act in accordance with uniformly applied rules and practices and its determinations shall be binding on all persons affected thereby.

(c)

The board of trustees shall be responsible for developing a funding policy for the investment of plan assets and it shall be responsible for the management and investment of the plan assets. It may hire consultants or investment advisors to assist in this regard. It may delegate the authority to manage and invest plan assets to any investment manager which acknowledges that it is a fiduciary with respect to this plan.

(d)

The board of trustees shall submit to the city council, not later than five months after the close of the plan's fiscal year, a financial report for that year audited by an independent certified public accountant. For purposes of this report, the fiscal year of this plan shall begin on July 1 of each year, and end on June 30 of the following year.

(e)

All moneys collected in payment of fines imposed by the chief of fire upon members of the fire department subject to this plan, all moneys deducted or withheld from the pay of members of the fire department subject to this plan by reason of absence from duty from any cause, all moneys donated to this plan, and all rewards and testimonials paid to the members of the fire department subject to this plan shall be credited to this plan. In addition, the base salary of each member of the fire department of the city who shall participate in the benefits of this plan shall be reduced by six percent and the amount of such reduction shall be paid to the board of trustees by the city in lieu of contributions by such members of the fire department. No such member of the fire department shall have the option of receiving the contributed amounts directly instead of having them paid by the city to the trustees, i.e., these amounts shall be picked up by the city pursuant to section 414(h)(2) of the code.

The city will also make contributions to the board of trustees to fund this plan in accordance with actuarial determinations made not less frequently than once every three years. The actuarial assumptions to be used by the actuary shall be determined from time to time by the board of trustees with the advice of an actuary. The city's contributions over and above those made in this subsection shall be designed to amortize any unfunded liability over a period not to exceed 40 years. In any event the city's contribution in any one year shall not be less than the full current costs, plus the interest on any unfunded liability, less any funds coming into this plan under this subsection. The board of trustees' annual financial report to the city council, filed pursuant to subsection (d) of this section, shall include a recommendation with respect to the contribution required to meet the funding requirements under this plan.

(f)

All plan assets shall be held by the board of trustees as trustee in trust for the exclusive benefit of plan participants and their beneficiaries. No plan funds may revert to the city prior to the satisfaction of all plan liabilities. Forfeitures under the plan shall not be used to increase any participant's benefits but rather shall be applied to reduce the costs of funding the plan.

(Code 1968, § 28A-110; Ord. No. 02-043, § 1, 5-2-02; Ord. No. 17-051, § 2, 12-14-17 )

Cross reference— Boards, commissions and similar entities, § 2-56 et seq.

(a)

This plan may be amended from time to time by the city council only upon the joint recommendation of the mayor and International Association of Firefighters, Local 1590 or its successor; however, no such amendment shall impair any participant's rights to the plan prior to the amendment. Upon termination, partial termination, or complete cessation of contributions, all affected participants shall become 100 percent vested in their benefits accrued to date to the extent then funded.

(b)

This plan may not be consolidated with or merged with another plan unless the benefits provided for participants immediately after such merger, consolidation, or transfer, in the event such successor plan should then terminate, will be at least equal to the benefits to which participants would have been entitled if this plan had terminated immediately before such merger or consolidation.

(c)

If the plan is terminated, to the extent plan benefits are not already guaranteed by an insurance company, the assets of the plan will be allocated to pay all plan administration expenses and then will be allocated to provide benefits as follows:

(1)

First, for each retired or disabled participant, for each survivor beneficiary eligible to receive a benefit, and for each participant eligible to retire, an amount will be allocated to provide his pension benefit;

(2)

Second, for each other participant who received credit for five years of service and is therefore at least partially vested, an amount will be allocated to provide his accrued vested benefit;

(3)

Third, for each participant an amount will be allocated to provide his accrued benefit which is not vested; and

(4)

Fourth, any excess will be refunded to the city.

(d)

No assets will be allocated to a lower order of priority unless all higher orders of priority have been fully satisfied. If assets are insufficient to fully satisfy any one order of priority, allocation will be made pro rata within that order of priority. In the event the U.S. Secretary of the Treasury determines that the plan assets must be allocated in some different manner in order to satisfy the nondiscrimination requirements of code section 401(a)(4), the assets shall be so allocated.

(Code 1968, § 28A-111)

Whenever a member of the fire department subject to this plan shall transfer to and be a member of the police department, all pension and retirement benefits and rights accrued to such member under this plan shall be transferred to the pension fund for members of the police department described in division 4 of this article.

(Code 1968, § 28A-112)

(a)

Competence of recipient. If an individual entitled to any payment under the plan is a minor or is, in the opinion of the board of trustees, mentally or physically incapable of managing his financial affairs, the board of trustees may direct that payment be made to the person or institution providing for that individual's care and maintenance. Any such payment shall completely discharge the plan's liability for the amount paid.

(b)

Frequency of payments; lump sum payments. If any benefit under this plan is payable at a monthly rate smaller than $100.00, the board of trustees may direct that payment be made less frequently for an equitably adjusted amount. If the actuarial equivalent of any benefit is smaller than $5,000.00, the board of pensions may pay that actuarial equivalent in a single lump sum.

(Code 1968, § 28A-113)

(a)

General rule. Notwithstanding any provision of this plan to the contrary, in no event shall the pension payable to a participant in any one calendar year in the form of a single life annuity commencing on his normal retirement date exceed the lesser of:

(1)

Ninety thousand dollars, adjusted for increases in the cost of living, including post-retirement increases, in accordance with regulations issued by the secretary of the treasury under code section 415; and

(2)

One hundred percent of the participant's average compensation for the three consecutive calendar years during which he received his greatest aggregate compensation from the city.

(b)

Adjustment depending on form of payment. If the form of payment of the pension is other than a single life annuity or a qualified joint and survivor annuity, as described in code section 401(a)(11), the value of such other form of payment shall not exceed the actuarial equivalent of the maximum annual pension payable under this section.

(c)

Adjustment if payments begin before age 62. If a benefit becomes payable before age 62, the determination as to whether the limitation set forth in subsection (a)(1) of this section has been satisfied shall be made, in accordance with regulations prescribed by the secretary of the treasury, by adjusting such benefit so that it is equivalent to such a benefit beginning at age 62. The reduction under this subsection shall not reduce the limitation of subsection (a)(1) below:

(1)

If the benefit begins at or after age 55, $75,000.00; or

(2)

If the benefit begins before age 55, the amount which is the equivalent of the $75,000.00 limitation for age 55.

(d)

Adjustments to $90,000.00 limitation where benefit begins after age 65. If the retirement income benefit under the plan begins after age 65, the determination as to whether the $90,000.00 limitation set forth in subsection (a)(1) of this section has been satisfied shall be made, in accordance with regulations prescribed by the secretary of the treasury, by adjusting such benefit so that it is equivalent to such a benefit beginning at age 65.

(e)

Limitation for certain assumptions. For the purpose of adjusting any benefit under subsection (b), (c), or (d) of this section, no cost-of-living adjustments shall be taken into account before the year for which such adjustment first takes effect.

(f)

Limitation for less than ten years of service. If the participant has fewer than ten years of service at retirement, the applicable limitation shall be multiplied by a fraction, the numerator of which is the number of years, or part thereof, of service with the employer and the denominator of which is ten.

(g)

Total annual benefit not in excess of $10,000.00. Notwithstanding the preceding provisions of this section, the benefits payable with respect to a participant shall be deemed not to exceed the limitation of this section if the pension payable with respect to such participant does not exceed $10,000.00 for the plan year or for any prior plan year.

(h)

Aggregation with defined contribution plan. In any case where a participant is also participating in a defined contribution plan maintained by the city, the sum of the defined benefit plan fraction and the defined contribution plan fraction for any year may not exceed 1.0. For purpose of this section, the terms "defined benefit plan fraction" and "defined contribution plan fraction" shall have the meanings set forth in code section 415(e).

(i)

Interpretation. The provisions of this section shall be interpreted consistently with the provisions of code section 415.

(j)

How deficiency paid. If a participant's pension should be limited because of the limitations of this section or of section 39-256, the deficiency will be paid to the participant or his beneficiaries from the city's current revenues.

(Code 1968, § 28A-114)

(a)

This section shall apply to each participant, an affected participant, who is one of 25 highest paid participants on any commencement date and whose anticipated pension, commencing at normal retirement date, will be in excess of $1,500.00 annually. Commencement date means the effective date of each amendment to the plan which increases benefits. If the full current cost of the plan is not met or if the plan is terminated at any time prior to ten years after a commencement date, then the amount of the city's contributions, and earnings thereon, that may be applied for the benefit of an affected participant shall not exceed the larger of:

(1)

Twenty thousand dollars; and

(2)

Twenty percent of the first $50,000.00 of the average annual compensation of the affected participant, during the last five years of employment, multiplied by the number of years since applicable commencement date.

(b)

The restrictions of this section shall be interpreted and applied in accordance with treasury regulations section 1.401-4(c).

(Code 1968, § 28A-115)