[Adopted 2-25-2009 by Ord. No. 5591]
The following words and phrases as used in this Plan shall have
the meaning set forth in this article, unless a different meaning
is otherwise clearly required by the context:
As of any given date, the participant's benefit determined under § 94-33B, calculated on the basis of the participant's average monthly compensation determined as of such date and multiplied by a fraction, the numerator of which shall be the participant's completed years of credited service as of such determination date and the denominator of which shall be the projected number of years of credited service of the participant as if the participant continues in employment until attainment of normal retirement age. Notwithstanding anything contained herein to the contrary, in no event shall the fraction exceed 1.0.
In no event, however, shall the accrued benefit exceed the maximum limitation, determined as of the date of computation, provided under § 94-33H. All accrued benefits are subject to all applicable limitations, reductions, offsets and actuarial adjustments provided by the Plan prior to the actual payment thereof and no accrued benefits shall be paid unless the participant satisfies all requirements hereunder for entitlement to receive such benefit.
The total amount contributed by any participant to this Plan
or its predecessor by way of payroll deduction or otherwise.
The Municipal Pension Plan Funding Standard and Recovery
Act (enacted as Act 205 of 1984), as amended, 53 P.S. § 895.101
et seq.
Two forms of payment of equal actuarial present value on
a specified date. The factors to be used in determining actuarial
equivalents shall be 7% interest, and UP-1984 Mortality Table rates.
The person, partnership, association or corporation, which
at any given time is serving as actuary, provided that such actuary
must be an "approved actuary" as defined in the Act.
Any leave of absence granted in writing by the Employer for
reasons including, but not limited to, accident, sickness, pregnancy,
temporary disability, education, training, jury duty or such other
reasons as may necessitate authorized leave from active employment.
If the employee fails to return to active service within the time
period prescribed in the employer's leave policy, service will be
deemed to have ceased as of the date on which the authorized leave
of absence commenced. "Authorized leave of absence" shall include
a period of time for active service with the armed forces of the United
States of America provided that the participant shall return to employment
within the time prescribed by law following separation from such military
service during which the participant's reemployment rights are protected.
[Amended 8-8-2018 by Ord.
No. 5721]
The compensation of the participant averaged over the last
60 months of active employment, or over any five years of employment
prior to retirement, whichever provides the highest average. Average
monthly compensation shall exclude any amounts paid in a lump sum
for accumulated unused vacation days or sick time or for back-pay
damage awards or settlements other than to the extent that such amounts
are credited to periods of time when they would otherwise have accrued
or been earned such that no amounts are credited in a manner which
would result in duplication of remuneration for any particular period
of time.
[Amended 8-8-2018 by Ord.
No. 5721]
The person or legal entity designated by the participant
to receive any applicable benefits under the Plan payable upon the
occurrence of the death of the participant. In the event that a participant
does not designate a beneficiary or the beneficiary does not survive
the participant, the beneficiary shall be the surviving spouse, or
if there is no surviving spouse, the issue, per stirpes, or if there
is no surviving issue, the estate; but if no personal representative
has been appointed, to those persons who would be entitled to the
estate under the intestacy laws of the Commonwealth of Pennsylvania
if the participant had died intestate and a resident of Pennsylvania.
Any period of time after employment has commenced during
which an employee fails to maintain a continuous period of employment.
The person designated by the employer who has primary responsibility
for the execution of the administrative affairs of the Plan which
shall be the City Manager or individual designated by the City Manager.
The Internal Revenue Code of 1986, as amended.
The Commonwealth of Pennsylvania.
The total remuneration whether salary or hourly wages paid to
an employee by the employer for personal services rendered as an employee.
Compensation shall exclude extra or additional forms of remuneration
such as amounts paid as allowance or reimbursement for expenses and
payments made by the employer to this or any other employee welfare
or benefit plans on behalf of its employees (other than deductions
from an employee's remuneration which is reclassified as an employer
payment).
Compensation shall be limited on an annual basis for purposes
of this plan to the amount specified in accordance with Code Section
401(a)(17) for government plans, as adjusted under Code Section 415(d).
Any insurance or annuity contract issued by an insurance
company in accordance with the requirements of the Plan.
The City Council of the City of Altoona, Pennsylvania.
The first day of the month coincident with or next following
the date when a participant who has completed at least 10 years of
credited service terminates employment due to a total and permanent
disability.
Any person who is employed as a permanent full-time employee
by the employer, and who is not otherwise participating in a pension
plan or retirement program sponsored by the employer which recognizes
credit for the same period of service to the employer.
A union employee shall refer to an employee who is a member
of Local No. 123 of American Federation of State, County and Municipal
Employees (AFSME). Any other employee shall be referred to as a nonunion
employee.
The City of Altoona, Blair County, Pennsylvania, a political
subdivision of the commonwealth.
The period of time for which an employee is directly or indirectly
compensated or entitled to compensation by the employer for the performance
of duties as an employee. Employment may include, for the purpose
of determining years of credited service, an authorized leave of absence
to the extent it is specifically granted in writing by the City Manager
and permitted pursuant to applicable law.
Employment shall also include any period of qualified military
service as determined under the requirements of Chapter 43 of Title
38, United States Code, provided that the participant returns to employment
following such period of qualified military service, and the participant
makes payment to the Plan in an amount equal to the participant contributions
that would otherwise have been paid to the Plan during such period
of qualified military service. The amount of participant contributions
shall be based upon an estimate of the compensation that would have
been paid to the participant during such period of qualified military
service as determined by the average compensation paid to the participant
during the 12 months immediately preceding the period of qualified
military service. The amount of participant contributions so calculated
must be paid into the Plan before the end of the period that begins
on the date of reemployment and ends on the earlier of the date that
ends the period that has a duration of three times the period of qualified
military service, or the date that is five years after the date of
reemployment.
Any legal reserve life insurance company licensed to do business
in one or more states of the United States.
The minimum annual obligation of the municipality as determined
pursuant to the provisions of the Act.
The date upon which the participant has attained age 60 and
has completed 20 years of credited service.
The first day of the month coincident with or next following
the date when an employee attains normal retirement age.
A written document prepared in the form specified by the
plan administrator and delivered as follows: if such notice or election
is to be provided by the employer or plan administrator, it shall
be mailed in a properly addressed envelope, to the last known address
of the person entitled thereto, on or before the last day of the specified
notice or election period; or, if such notice or election is to be
provided to the employer or the plan administrator, it must be received
by the recipient on or before the last day of the specified notice
or election period.
Any employee who has commenced participation in this Plan in accordance with § 94-31, and has not for any reason ceased to participate hereunder.
The assets of the Plan, which shall be accounted for separately
from the assets of any other plans maintained by the employer and
which shall be administered under the supervision of the employer
in accordance with the terms of the Plan.
The board appointed pursuant to the provisions of applicable law to administer the Plan as more fully described herein under § 94-38.
The City of Altoona Nonuniformed Employees' Pension Plan.
The Pension Plan Board. In the event no such Pension Plan
Board is appointed, the plan administrator shall be the Council.
The twelve-month period beginning on January 1 and ending
on December 31.
January 1, 2018, the effective date of this amended and restated
Plan.
[Amended 8-8-2018 by Ord.
No. 5721]
A condition of physical or mental impairment due to which
a participant is permanently unable to perform any customary duties
of employment with the employer. The employer shall determine whether
a participant has incurred a total and permanent disability based
upon the results of an examination by three physicians approved by
the employer.
Refers to any consecutive twelve-month period during which
a participant is continuously employed in employment. Each year of
credited service shall be determined from the date on which participation
in the Plan shall commence and annual anniversaries thereof and/or
the date that reemployment of a participant shall commence and anniversaries
thereof, provided that the employee has authorized the payment of
employee contributions to the Plan. Years of credited service shall
be computed as the number of completed full years and months of participation.
A.
Eligibility for participation. Each employee shall participate in
the Plan as of the first day of employment, provided that all administrative
prerequisites such as authorizing the payment of employee contributions
via payroll deduction have been fulfilled. Each employee who was a
participant in the Plan on the day prior to the restatement date shall
continue to be a participant on and after the restatement date subject
to the terms and conditions of the Plan as set forth herein.
B.
Participation requirements. Each participant hereunder shall be required to make contributions to the Plan, as provided in § 94-32A hereof, and shall execute and complete any enrollment or application forms as required by the plan administrator.
C.
Reemployment. Each employee who had previously been employed by the employer and incurred a break in service shall, upon reemployment, have prior years of credited service recredited for all purposes under the Plan upon repayment to the Plan of any amount of accumulated contributions which had been distributed pursuant to § 94-37B within 30 days of the participant's reemployment date. In the case of an employee whose reemployment date occurs after December 31, 2004, and whose prior years of credited service occurred prior to December 31, 2004, such repayment shall include the amount of the employer deposit determined pursuant to § 94-33C.
D.
Change in status. A participant who remains in the service of the
employer but ceases to be an employee eligible for participation hereunder,
or ceases or fails to make any contributions which are required as
a condition of participation hereunder, shall have no further benefit
accruals occur until the individual again qualifies as a participant
hereunder eligible to resume such accrual of benefits.
E.
Leave of absence. During any leave of absence that is not an authorized
leave of absence, a participant shall be deemed an inactive participant
and shall not be given credit for years of credited service nor continue
to accrue any benefits hereunder. If the employee is not reemployed
by the expiration of such leave of absence, participation in the Plan
shall cease on the date on which such leave of absence commenced.
During any authorized leave of absence, a participant shall continue
to receive credit for years of credited service to the extent such
credit is specifically granted, in writing, by the plan administrator
and is permitted pursuant to applicable law, provided that all required
contributions are paid to the Plan.
F.
Recordkeeping. The employer shall furnish the administrator with
such information as will aid the administrator in the administration
of the Plan. Such information shall include all pertinent data on
employees for purposes of determining their eligibility to participate
in this Plan.
A.
Employee contributions.
[Amended 8-8-2018 by Ord.
No. 5721; 8-8-2022 by Ord. No. 5791]
(1)
As a condition of participation hereunder, each participant shall be required to have contributions deducted from the participant's compensation and contributed to the Plan at a rate of 5%. Effective January 1, 1990, the participant contributions required under Subsection A shall be picked up by the employer and shall be treated as employer contributions pursuant to Code § 414(h)(2). Effective August 13, 2022, the required employee contribution rate shall be increased to 6% for the funding of surviving spouse benefits.
B.
Employer contributions. The actuary, in accordance with the Act,
shall annually determine the minimum municipal obligation of the employer.
The employer shall pay into the Pension Fund, by annual appropriations
or otherwise, the contributions necessary to satisfy the minimum municipal
obligation. Notwithstanding the foregoing, nothing contained herein
shall preclude the employer from contributing an amount in excess
of the minimum municipal obligation.
C.
State aid. General municipal pension system state aid received by
the employer in accordance with the Act from the Commonwealth may
be deposited into the pension fund governed by this Plan and shall
be used to reduce the amount of the minimum municipal obligation of
the employer.
D.
Gifts. The Council is authorized to take by gift, grant, devise or
otherwise any money or property, real or personal, for the benefit
of the Plan and cause the same to be held as a part of the pension
fund. The care, management, investment and disposal of such amounts
shall be vested in the Council or its delegate, the plan administrator,
subject to the direction of the donor and not inconsistent with applicable
laws and the terms of the Plan.
E.
No reversion to the employer. At no time shall it be possible for the Plan assets to be used for, or diverted to, any purpose other than for the exclusive benefit of the participants and their beneficiaries, including payment of any reasonable Plan expenses. Notwithstanding the foregoing, any contributions made by the employer may be returned to the employer if the contribution was made due to a mistake of fact and the contribution is returned within one year of the discovery of the mistaken payment of the contribution or the Plan is terminated, as provided in § 94-40.
[Amended 8-8-2018 by Ord.
No. 5721]
A.
Normal retirement. Each participant shall be entitled to a normal
retirement benefit after retirement on or after attainment of normal
retirement age.
B.
Normal retirement benefit.
(1)
Each participant who shall become entitled to a benefit pursuant to Subsection A hereof shall receive a benefit commencing on the participant's normal retirement date and paid in the normal form as provided in § 94-36A hereof. The monthly amount of the normal retirement benefit shall be equal to 50% of the participant's average monthly compensation. Such amount shall be reduced by an amount equal to 40% of the primary insurance amount of social security paid or payable to the participant. Such reduction shall commence upon the attainment of the age at which full unreduced social security benefits are payable to the participant and determined as of the date employment terminated based only on the compensation for services rendered in employment and shall only be redetermined if a decrease in the social security primary insurance amount shall result in a corresponding decrease in the amount of the reduction determined herein.
(2)
No offset for social security shall apply to the retirement benefit
of employees who become participants on or after January 1, 2005.
C.
Elimination of social security reduction.
(1)
Each participant of the Plan as of December 31, 2004, who shall retire on or after December 31, 2004, shall be eligible to eliminate the social security primary insurance amount reduction applicable in the case of a benefit payable pursuant to Subsection B hereof.
(2)
The Employer, for each participant eligible for such elimination of Social Security reduction, made a deposit to the Fund in an amount equal to the difference between 5% of the participant's compensation from April 1, 1992, through December 15, 2004, and the actual employee contributions made by the participant during such period. The employer deposited such amount January 2005. Such deposit shall not be included in the amount of a participant's accumulated contributions for purposes of § 94-35B, C or 94-37B.
[Amended 8-8-2018 by Ord.
No. 5721]
D.
Late retirement. A participant may continue in employment beyond normal retirement age subject to the employer's rules and regulations regarding retirement age. If a participant who has met the requirements of Subsection A of this section continues in employment beyond normal retirement age, there shall be no retirement benefits paid until employment has ceased and the participant's retirement actually commences. The retirement benefit of the participant described in this subsection shall be calculated in accordance with Subsection B of this section on the basis of average monthly compensation and years of credited service as of the participant's actual retirement date.
E.
Application for benefit. A participant must complete and execute
an application for benefit on a form and in the manner prescribed
by the plan administrator and deliver the said application to the
plan administrator at least 30 days prior to the date on which benefit
payments are to commence. Notwithstanding anything contained herein
to the contrary, no retirement benefit payments or any other benefit
payments shall be due or payable on or before the first day of the
month coincident with or next following the date that is 30 days after
the date the plan administrator receives the application for benefit.
F.
Limitation of liability. Nothing contained herein shall obligate
the employer, the plan administrator, any fiduciary or any agent or
representative of any of the foregoing, to provide any retirement
or other benefit to any participant or beneficiary which cannot be
provided from the assets available in the pension fund, whether such
benefits are in pay status or otherwise payable under the terms of
the Plan. The Council retains the right to amend or terminate this
Plan consistent with applicable law at any time, with or without cause
and whether or not such action directly or indirectly results in the
suspension, reduction or termination of any benefit payable under
the Plan or in pay status, and without liability to any person for
any such action.
G.
Special provision for restated plans.
(1)
The benefit amount of any participant who may have retired prior
to the restatement date shall not be in any way altered by the provisions
of this Plan, except where otherwise expressly indicated herein, and
shall continue to be determined on the basis of the terms of the Plan
in effect on the day preceding the restatement date.[1]
[1]
Editor’s Note: Former Subsection G(2), regarding entitlement
of benefits from the Plan as of March 31, 1992, was repealed 8-8-2018
by Ord. No. 5721.
H.
Maximum benefit limitations. Notwithstanding any provision of this
Plan to the contrary, no benefit provided under this Plan attributable
to contributions of the employer shall exceed, as an annual amount,
the amount specified in Code Section 415(b)(1)(A) as adjusted pursuant
to Code Section 415(d), assuming the form of benefit shall be a straight
life annuity (with no ancillary benefits). The limitations described
in this subsection shall be governed by the following conditions and
definitions:
(1)
Benefits paid or payable in a form other than a straight life annuity
(with no ancillary benefits) or where the employee contributes to
the Plan or makes rollover contributions shall be adjusted on an actuarially
equivalent basis in accordance with applicable regulations to determine
the limitation contained herein;
(2)
In the case of a benefit which commences prior to the attainment
of age 62 by the participant, the limitation herein shall be adjusted
on an actuarially equivalent basis to the amount determined pursuant
to this section commencing at age 62; however, in the case of a qualified
participant (a participant with respect to whom a period of at least
15 years of service, including applicable military service, as a full-time
employee of a Police or Fire Department is taken into account in determining
the amount of benefit), the limitation contained herein shall not
apply;
(3)
In the case of a benefit which commences after attainment of age
65 by the participant, the limitation herein shall be adjusted on
an actuarially equivalent basis in accordance with applicable regulations
to the amount determined commencing at age 65;
(4)
Benefits paid to a participant which total less than $10,000 from all defined benefit plans maintained by the employer expressed as an annual benefit shall be deemed not to exceed the limitation of this section, provided that the employer has not at any time maintained a defined contribution plan in which the participant has participated; however, in the case of a participant who is not receiving a disability retirement benefit pursuant to § 94-34, with fewer than 10 years of participation the limitation expressed in this Subsection H(4) shall be reduced by 1/10 for each year of participation less than 10 but in no event shall this limitation be less than $1,000;
(5)
The limitations expressed herein shall be based upon plan years for
calculation purposes, shall be applied to all defined benefit plans
maintained by the employer as one defined benefit plan and to all
defined contribution plans maintained by the employer as one defined
contribution plan, and shall be applied and interpreted consistent
with Code Section 415 and regulations thereunder as applicable to
government plans in general and this Plan in particular; and
(7)
For mandatory employee contributions, the rules set forth in Treasury
Regulation 1.415(b)-1(b)(2)(iii) shall apply; and
[Added 8-8-2018 by Ord.
No. 5721]
(8)
Effective for distributions with annuity starting dates beginning
on or after December 31, 2008, notwithstanding any other Plan provisions
to the contrary, the applicable mortality table used solely for purposes
of adjusting any benefit or limitation under 415(b)(2)(B), (C), or
(D) of the Internal Revenue Code as set forth in the applicable maximum
benefit limitations section of the Plan is the applicable mortality
table under Code Section 417(e)(3)(B) and effective as of January
1, 2008, for purposes of Code Section 415(b)(1)(A), the "applicable
mortality table" and "applicable interest rate" are found in Rev.
Rul. 2007-67.
[Added 8-8-2018 by Ord.
No. 5721]
(9)
Incorporation of Code Section 415 by reference. Notwithstanding anything contained in Subsection H to the contrary, the limitations, adjustments, and other requirements prescribed in Subsection H shall at all times comply with the provisions of Code Section 415 and the Regulations thereunder (as such apply to governmental plans), the terms of which are specifically incorporated herein by reference.
[Added 8-8-2018 by Ord.
No. 5721]
A.
Disability retirement. A participant who has completed at least 10
years of credited service and who incurs a total and permanent disability
before attaining normal retirement age shall be entitled to a disability
retirement benefit determined as of the disability retirement date.
B.
Disability retirement benefit. A participant who shall be entitled to a disability retirement benefit under Subsection A of this section shall receive a benefit equal to 50% of the average monthly compensation with no offset for social security.
C.
Payment of disability benefit. Payment of a disability retirement benefit shall be made in the normal form under § 94-36A commencing on the participant's disability retirement date and ending on the earlier of the date of death of the participant or the date that the participant's total and permanent disability shall cease. If the participant's total and permanent disability shall cease prior to the attainment of the participant's normal retirement age, the participant shall be deemed to have terminated employment as of the disability retirement date for purposes of this Plan unless the participant shall resume active employment within three months following the date on which such total and permanent disability ceased. A participant who fails to resume active employment after total and permanent disability ceases shall not be entitled to a distribution of accumulated contributions pursuant to § 94-37B to the extent that the total amount of disability retirement benefits paid exceeds the value of the participant's accumulated contributions as of the disability retirement date, and shall not be entitled to any other benefits under the Plan as a result of the accumulation of any years of credited service as of the disability retirement date.
D.
Verification of disability. The plan administrator shall determine
whether a participant shall have incurred a total and permanent disability.
Proof of total and permanent disability shall consist of the sworn
statement of three practicing physicians designated by the plan administrator
that the participant has incurred a total and permanent disability.
If the plan administrator shall determine that a participant who is
totally and permanently disabled has recovered sufficiently to resume
active employment or if a participant refuses to undergo a medical
examination as directed by the plan administrator (such a medical
examination may not be required more frequently than once in any given
twelve-month period), the payment of disability retirement benefits
shall cease.
E.
Cessation of disability. A participant who is receiving payment of
disability retirement benefits under this Plan must notify the plan
administrator of any change in condition which may cause the participant's
entitlement to receipt of such benefits to cease. If a participant
fails to provide immediate notice to the plan administrator of any
such change in status and thereby continues to receive payment of
benefits hereunder to which the participant is not entitled, the plan
administrator may take whatever action is necessary and permitted
under applicable law to recover any amount of improper payments, including
offsetting such amounts against any future payment of retirement or
other benefits under the Plan or legal action. The plan administrator
may also recover the costs of any such action.
A.
Death of participant. Upon the occurrence of the death of a participant,
there shall be benefits payable in accord with the following subsections
of this section.
B.
Survivor benefit. If a participant shall die after commencement of retirement benefit payments under § 94-33, 94-34 or 94-37C hereunder and whose benefit is being paid pursuant to the normal form under § 94-36, or if a participant is killed in service, a survivor benefit shall be paid to the surviving spouse of the participant, if any, pursuant to Subsection C below, in an amount equal to 50% of the benefit the participant was receiving or was eligible to receive as of the date of death.
[Amended 8-8-2022 by Ord. No. 5791]
C.
Payment of survivor benefit. The survivor benefit commences as of
the first day of the month immediately following the date of death
of the participant. The survivor benefit shall be paid monthly to
the spouse of the participant, if any, until the death or remarriage
of the spouse. Upon the death or remarriage of the spouse, the survivor
benefit shall cease and no further benefits shall be payable.
[Amended 8-8-2022 by Ord. No. 5791]
D.
Death of participant without survivor benefit entitlement. If a participant shall die before commencement of benefits under the Plan and without eligibility for payment of a survivor benefit under Subsection B, the beneficiary shall be eligible to receive a distribution in an amount equal to the accumulated contributions of the participant as of the date of death of the participant. If a participant shall die after commencement of retirement benefit payments and whose benefit is being paid pursuant to the optional form under § 94-36, the designated beneficiary shall be paid benefits, if surviving, in accordance with § 94-36B. Notwithstanding the preceding, if a participant shall die after commencement of retirement benefit payments, without eligibility for payment of a survivor benefit or a survivor annuity under § 94-36B, and whose total benefit payments at the time of death are less than the participant's accumulated contributions, the beneficiary shall be eligible to receive a distribution in an amount equal to the accumulated contributions less total benefits paid to the participant as of the date of death.
[Added 8-8-2022 by Ord. No. 5791]
E.
Veterans'
survivor benefits. Notwithstanding any other provision of the Plan
to the contrary, in the case of the death of a participant who dies
on or after January 1, 2007, while performing qualified military service
[as defined in Code § 414(u)], the survivors of the participant
are entitled to any additional benefits under the Plan (if any) had
the participant resumed and then terminated employment on account
of death.
[Added 8-8-2022 by Ord. No. 5791]
A.
Normal form. The normal form for payment of retirement benefits shall
be an annuity for the life of the participant paid in monthly installments.
B.
Optional form.
(1)
Each participant who was first employed as an employee in employment prior to April 1, 1992, may elect to receive payment in the form of a joint and survivor annuity in lieu of payment in the normal form under Subsection A of this section. The joint and survivor annuity shall be a reduced amount which is the actuarial equivalent of the normal form and shall be a monthly annuity for the life of the participant until the death of the participant and thereafter shall be paid to the beneficiary, if then surviving, in an amount equal to 50% of the amount paid to the participant (prior to any reduction for social security benefits) and payable for the life of the beneficiary. If the beneficiary dies prior to the death of the participant, there shall be no payments due after the death of the participant shall occur.
(2)
A participant who is eligible to elect the joint and survivor annuity
described above may select this optional form as early as, but no
earlier than, the date of retirement by notifying the Pension Board
in writing of such election.
C.
Commencement of benefits. A participant may make an election to commence receiving distribution of retirement benefits as of the participant's normal retirement date or other such date as provided for and elected by the participant pursuant to § 94-37C, whichever is applicable, or may defer such payments to a date not later than the required date for commencement of benefits determined under Subsection D of this section.
D.
Required distributions.
(1)
Distribution prior to death.
(a)
Notwithstanding any other provision of this Plan, the entire
benefit of any participant who becomes entitled to benefits prior
to death, other than a refund of accumulated contributions, shall
be distributed either:
[1]
Not later than the required beginning date, or
[2]
Over a period beginning not later than the required beginning
date and extending over the life of such participant or over the lives
of such participant and a designated beneficiary (or over a period
not extending beyond the life expectancy of such participant, or the
joint life expectancies of such participant and a designated beneficiary).
(b)
If a participant who is entitled to benefits under this Plan dies prior to the date when the entire interest has been distributed after distribution of benefits has begun in accordance with Subsection D(1)(a)[2] above, the remaining portion of such benefit shall be distributed at least as rapidly as under the method of distribution being used under Subsection D(1)(a)[2] as of the date of death.
(2)
If a participant who is entitled to benefits under this Plan dies
before distribution of the benefit has begun, the entire interest
of such employee shall be distributed within five years of the death
of such employee, unless the following sentence is applicable. If
any portion of the employee's interest is payable to (or for the benefit
of) a designated beneficiary, such portion shall be distributed over
the life of such designated beneficiary (or over a period not extending
beyond the life expectancy of such beneficiary), and such distributions
begin not later than one year after the date of the employee's death
or such later date as provided by regulations issued by the Secretary
of the Treasury, then for purposes of the five-year rule set forth
in the preceding sentence, the benefit payable to the beneficiary
shall be treated as distributed on the date on which such distributions
begin. Provided, however, that notwithstanding the preceding sentence,
if the designated beneficiary is the surviving spouse of the participant,
then the date on which distributions are required to begin shall not
be earlier than the date upon which the employee would have attained
age 72 and, further provided, if the surviving spouse dies before
the distributions to such spouse begin, this subsection shall be applied
as if the surviving spouse were the employee.
[Amended 8-8-2022 by Ord. No. 5791]
(3)
For purposes of this section, the following definitions and procedures
shall apply:
(a)
DESIGNATED BENEFICIARY
REQUIRED BEGINNING DATE
Definitions. As used in this section, the following terms shall
have the meanings indicated:
Any individual designated by the employee under this Plan
according to its rules.
April 1 of the calendar year following the later of the calendar
year in which the employee attains age 72, or the calendar year in
which the employee retires.
[Amended 8-8-2022 by Ord. No. 5791]
(b)
Any amount paid to a child shall be treated as if it had been
paid to the surviving spouse if such amount will become payable to
the surviving spouse upon such child's reaching majority (or other
designated event permitted under regulations issued by the Secretary
of the Treasury).
(c)
For purposes of this section, the life expectancy of an employee
and/or the employee's spouse (other than in the case of a life annuity)
may be redetermined but not more frequently than annually.
(d)
General rules. The requirements of this section will take precedence
over any inconsistent provisions of the Plan. All distributions required
under this section will be determined and made in accordance with
Section 401(a)(9) of the Internal Revenue Code and the Treasury regulations
thereunder, and the employer's good faith interpretation of such Code
and Regulations.
[Added 8-8-2018 by Ord.
No. 5721]
E.
Direct rollovers.
[Amended 8-8-2018 by Ord.
No. 5721]
(1)
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 plan administrator,
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)
This Subsection E(2) shall apply to distributions made on or after January 1, 2006. Notwithstanding any provisions of the Plan to the contrary that would otherwise limit a distributee's election under this section, if a distribution in excess of $1,000 is made and the distributee does not make an election under Subsection (a)[1] and does not elect to receive the distribution directly,
the plan administrator shall make such transfer to an individual retirement
plan of a designated trustee or issuer pursuant to authority and duties
of the plan administrator section of the Plan. The plan administrator
shall notify the distributee in writing, within a reasonable period
of time and as otherwise prescribed by law, that the distribution
may be transferred to another individual retirement plan.
[1]
Editor's Note: So in original.
(3)
DIRECT ROLLOVER
DISTRIBUTEE
ELIGIBLE RETIREMENT PLAN
ELIGIBLE ROLLOVER DISTRIBUTION
(a)
(b)
For purposes of this section, the following definitions shall apply:
A payment by the Plan to the eligible retirement plan specified
by the distributee or the plan administrator, if the distributee does
not make an election.
Includes a participant or former participant. In addition,
the participant's or former participant's surviving spouse and the
participant's or former participant's spouse or former spouse who
is the alternate payee under a qualified domestic relations order,
as defined in Code section 414(p) are distributees with regard to
the interest of the spouse or former spouse.
A qualified trust described in Code section 401(a), an individual
retirement account described in Code section 408(a), an individual
retirement annuity described in Code section 408(b), an annuity plan
described in Code section 403(a), an annuity contract described in
Code section 403(b), an eligible plan under section 457(b) of the
Code which is maintained by a state, political subdivision of a state,
or any agency or instrumentality of a state or political subdivision
of a state and which agrees to separately account for amounts transferred
into such plan from this plan.
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 10 years or more;
any distribution to the extent such distribution is required under
Code section 401(a)(9); and the portion of any distribution that is
not includable in gross income (determined without regard to the exclusion
for net unrealized appreciation with respect to employer securities).
For purposes of the direct rollover provisions in this section
of the Plan, a portion of a distribution shall not fail to be an eligible
rollover distribution merely because the portion consists of after-tax
employee contributions that are not includable in gross income. However,
such portion may be paid only to an individual retirement account
or annuity described in Section 408(a) or (b) of the Code, or to a
qualified defined contribution plan described in Section 401(a) or
403(a) of the Code [effective for distributions on or after January
1, 2007, any qualified trust or Code Section 403(b) plan] that agrees
to separately account for amounts so transferred, including separately
accounting for the portion of such distribution which is includable
in gross income and the portion of such distribution which is not
so includable.
F.
Small amounts. If the plan administrator determines that the amount
of a participant's accrued benefit is so small as to make pension
payments in the normal form administratively impractical, the plan
administrator may cause such payments to be made at such other periodic
intervals as are administratively practical, but no less frequently
than annually, to the extent permitted under applicable law.
G.
Nonduplication of benefit. To avoid any duplication of benefits,
a participant who is receiving a retirement benefit under this Plan
and who shall resume employment shall have benefit payments suspended
until the first day of the month coincident with or next following
the date such employment shall cease. Upon resumption of benefit payments,
such participant shall receive the greater of the amount of the suspended
benefit or the amount of benefit based upon average monthly compensation
and years of credited service as of the date that such period of resumed
employment shall cease.
H.
Personal right of participant. The right to receive any benefits
under this Plan is a personal right of the participant and shall expire
upon the death of the participant. No heir, legatee, devisee, beneficiary,
assignee or other person claiming by or through a participant shall
have any interest in any benefits hereunder unless clearly and expressly
so provided by the terms of this Plan. A participant's election, failure
to make an election or revocation of an election hereunder shall be
final and binding on all persons.
I.
Assignment. The pension benefit payments prescribed herein shall
not be subject to attachment, execution, levy, garnishment or other
legal process and shall be payable only to the participant or designated
beneficiary and shall not be subject to assignment or transfer unless
the subject of a domestic relations order, mandated by a court of
competent jurisdiction, that clearly provides for proper distribution
of a portion of the pension benefit payments to an alternate payee
(former spouse of the participant) and does not require any benefit
to be paid in excess of the available earned and accrued under the
Plan.
A.
Rights of terminated employees. A participant who shall cease to
be an employee except as otherwise hereinbefore provided shall have
all interest and rights under this Plan limited to those contained
in the following subsections of this section.
B.
Distribution of accumulated contributions. A participant whose employment
with the employer shall terminate for any reason other than death
or total and permanent disability prior to attainment of normal retirement
age shall be entitled to receive a distribution of accumulated contributions.
Upon receipt of such accumulated contributions, said participant and
beneficiary shall not be entitled to any further payments from the
Plan.
C.
Deferred retirement benefit.
(1)
A participant who shall have completed 20 years of credited service and who shall be dismissed, voluntarily retired, or otherwise deprived of active employment, other than due to death or total and permanent disability, prior to attainment of normal retirement age shall be entitled to elect to receive a deferred retirement benefit in lieu of a distribution of accumulated contributions under Subsection B of this section. If such an election is made, the participant must continue to pay contributions into the pension fund on a monthly basis equal to the monthly amount paid during the last full month of employment with such contributions to continue until the participant attains 60 years of age. Such deferred retirement benefit shall be equal to the benefit determined pursuant to § 94-33B hereof and shall commence after application pursuant to § 94-33B, upon attainment of age 60.
(2)
A participant who shall have completed at least 12 years of credited service and whose employment with the employer shall terminate for any reason other than death or total and permanent disability prior to attainment of normal retirement age shall be entitled to elect to receive a deferred retirement benefit in lieu of a distribution of accumulated contributions under Subsection B of this section. Such a deferred retirement benefit shall be in an amount equal to the accrued benefit determined as of the participant's date of termination of employment, and shall commence on or after the date which would have been the participant's normal retirement date and after application for the benefit has been made under § 94-33E hereof.
A.
Plan administrator. The Pension Plan Board shall be the plan administrator
and shall have the power and authority to do all acts and to execute,
acknowledge and deliver all instruments necessary to implement and
effectuate the purpose of this Plan. The plan administrator may delegate
authority to act on its behalf to any persons it deems appropriate.
If a plan administrator is not appointed, the Council shall be the
plan administrator.
B.
Pension Plan Board.
(1)
The Pension Plan Board shall consist of the Mayor, Director of Finance,
the City Controller and two employees chosen by employees who are
contributing to the pension fund. The Mayor may designate an appropriate
official of the City to serve instead of the Mayor with all of the
power, rights and responsibilities granted to the Mayor hereunder.
The two participants chosen hereunder shall include one union employee
and one nonunion employee. Each member of the Pension Plan Board shall
serve in that capacity until the earliest of death, resignation or
removal. Each member, but not including the Mayor, Director of Finance,
or City Controller, of the Pension Plan Board may resign by giving
written notice to the Council and other members of the Pension Plan
Board 30 days prior to the date of resignation. Any vacancy on the
Pension Plan Board shall be filled in accord with the provisions governing
initial appointment as a member of the Pension Plan Board.
(2)
The Pension Plan Board may organize itself in any manner deemed appropriate
to effectuate its purposes hereunder, provided that:
(a)
It shall act by a majority of its members at the time in office
either by vote at a meeting or in writing without a meeting;
(b)
It shall appoint a Chairman, a Secretary who may, but need not
be a Pension Plan Board member, and such other agents as it may deem
advisable;
(c)
It may authorize any one or more of its members to execute any
document or documents, including any application, request, certificate,
notice, consent, waiver or direction and shall notify the Council,
in writing, of each such member so authorized; however, if no such
member is so authorized, the Chairman shall be deemed to be so authorized;
(d)
It shall meet at least one time in each plan year; and
(e)
It shall maintain and keep such records as are necessary for
the efficient operation of the Plan and preservation of the pension
fund or as may be required by any applicable law, regulation or ruling,
and shall provide for the preparation and filing of such forms, reports
or documents as may be required to be filed with any governmental
agency or department and with the participants and/or other persons
entitled to benefits under the Plan.
C.
Authority and duties of the plan administrator.
(1)
The plan administrator shall have full power and authority to do
whatever shall, in its judgment, be reasonably necessary for the proper
administration and operation of the Plan. The interpretation or construction
placed upon any term or provision of the Plan by the plan administrator
or any action of the plan administrator taken in good faith shall
be final and conclusive upon all parties hereto, whether employees,
participants or other persons concerned. By way of specification and
not limitation and except as specifically limited hereafter, the plan
administrator is authorized:
(a)
To construe this Plan;
(b)
To determine all questions affecting the eligibility of any
employee to participate herein;
(c)
To compute the amount and source of any benefit payable hereunder
to any participant or beneficiary;
(d)
To authorize any and all disbursements;
(e)
To prescribe any procedure to be followed by any participant
and/or other person in filing any application or election;
(f)
To prepare and distribute, in such manner as may be required
by law or as the plan administrator deems appropriate, information
explaining the Plan;
(g)
To require from the employer or any participant such information
as shall be necessary for the proper administration of the Plan;
(h)
To appoint and retain any individual to assist in the administration
of the Plan, including such legal, clerical, accounting, actuarial
and investment services as may be required by any applicable law or
laws; and
[Amended 8-8-2018 by Ord.
No. 5721]
(2)
The plan administrator in its capacity as plan administrator shall
have no power to add to, subtract from or modify the terms of the
Plan or change or add to any benefits provided by the Plan, or to
waive or fail to apply any requirements of eligibility for benefits
under the Plan. Further, the plan administrator shall have no power
to adopt, amend, or terminate the Plan, or to determine or require
any contributions to the Plan, said powers being exclusively reserved
to the Council in its capacity as the governing body of the employer.
D.
Plan administration expense. All reasonable expenses incident to
the functioning of the plan administrator, including, but not limited
to, fees of accountants, counsel, actuaries and other specialists
and other costs of administering the Plan, may be paid from the pension
fund upon approval by the Council to the extent permitted under applicable
law and not otherwise paid by the employer.
E.
Hold harmless. No member of the Council nor the plan administrator
nor any other person involved in the administration of the Plan shall
be liable to any person on account of any act or failure to act which
is taken or omitted to be taken in good faith in performing their
respective duties under the terms of this Plan. To the extent permitted
by law, the employer shall, and hereby does agree to, indemnify and
hold harmless the plan administrator and each successor and each of
any such individual's heirs, executors and administrators, and the
plan administrator's delegates and appointees (other than any person,
bank, firm or corporation which is independent of the employer and
which renders services to the Plan for a fee) from any and all liability
and expenses, including counsel fees, reasonably incurred in any action,
suit or proceeding to which he/she is or may be made a party by reason
of being or having been the plan administrator or a delegate or appointee
of the plan administrator except in matters involving criminal liability,
intentional or willful misconduct. If the employer purchases insurance
to cover claims of a nature described above, then there shall be no
right of indemnification except to the extent of any deductible amount
under the insurance coverage or to the extent of the amount the claims
exceed the insured amount.
F.
Approval of benefits. The plan administrator shall review and approve
or deny any application for retirement benefits within 30 days following
receipt thereof or within such longer time as may be necessary under
the circumstances. Any denial of an application for retirement benefits
shall be in writing and shall specify the reason for such denial.
G.
Appeal procedure. Any person whose application for retirement benefits
is denied, who questions the amount of benefit paid, who believes
a benefit should have commenced which did not so commence or who has
some other claim arising under the Plan ("claimant"), shall first
seek a resolution of such claim under the procedure hereinafter set
forth.
(1)
Any claimant shall file a notice of the claim with the plan administrator
which shall fully describe the nature of the claim. The plan administrator
shall review the claim and make an initial determination approving
or denying the claim.
(2)
If the claim is denied in whole or in part, the plan administrator
shall, within 90 days (or such other period as may be established
by applicable law) from the time the application is received, mail
notice of such denial to the claimant. Such ninety-day period may
be extended by the plan administrator if special circumstances so
require for up to 90 additional days by the plan administrator's delivering
notice of such extension to the claimant within the first ninety-day
period. Any notice hereunder shall be written in a manner calculated
to be understood by the claimant and, if a notice of denial, shall
set forth:
(3)
Upon receipt of notice denying the claim, the claimant shall have
the right to request a full and fair review by the Council of the
initial determination. Such request for review must be made by notice
to the Council within 60 days of receipt of such notice of denial.
During such review, the claimant or a duly authorized representative
shall have the right to review any pertinent documents and to submit
any issues or comments in writing. The Council shall, within 60 days
after receipt of the notice requesting such review, (or in special
circumstances, such as where the Council in its sole discretion holds
a hearing, within 120 days of receipt of such notice), submit its
decision in writing to the person or persons whose claim has been
denied. The decision shall be final, conclusive and binding on all
parties, shall be written in a manner calculated to be understood
by the claimant and shall contain specific references to the pertinent
Plan provisions on which the decision is based.
(4)
Any notice of a claim questioning the amount of a benefit in pay
status shall be filed within 90 days following the date of the first
payment which would be adjusted if the claim is granted unless the
plan administrator allows a later filing for good cause shown.
(5)
A claimant who does not submit a notice of a claim or a notice requesting
a review of a denial of a claim within the time limitations specified
above shall be deemed to have waived such claim or right to review.
(6)
Nothing contained herein is intended to abridge any right of a claimant to appeal any final decision hereunder to a court of competent jurisdiction under 2 Pa.C.S.A. § 752. No decision hereunder is a final decision from which such an appeal may be taken until the entire appeal procedure of Subsection G of this section has been exhausted.
A.
Operation of the pension fund.
(1)
The Council of the City of Altoona is hereby authorized to hold and
supervise the investment of the assets of the pension fund, subject
to the provisions of the laws of the Commonwealth of Pennsylvania
and of this Plan and any amendment thereto. The Council hereby delegates
responsibility for holding and supervising the investment of the assets
of the pension fund to the plan administrator.
(2)
The pension fund shall be used to pay benefits as provided in the
Plan and, to the extent not paid directly by the employer, to pay
the expenses of administering the Plan pursuant to authorization by
the employer.
(3)
The employer intends the Plan to be permanent and for the exclusive
benefit of its employees. It expects to make the contributions to
the pension fund required under the Plan. The employer shall not be
liable in any manner for any insufficiency in the pension fund; benefits
are payable only from the pension fund, and only to the extent that
there are monies available therein.
(4)
The pension fund will consist of all funds held by the employer under
the Plan, including contributions made pursuant to the provisions
hereof and the investments, reinvestments and proceeds thereof. The
pension fund shall be held, managed, and administered pursuant to
the terms of the Plan. Except as otherwise expressly provided in the
Plan, the employer has exclusive authority and discretion to manage
and control the pension fund assets. The plan administrator, on behalf
of the employer may, however, appoint a trustee, custodian and/or
investment manager however, appoint a trustee, custodian and/or investment
manager.
B.
Powers and duties of employer. With respect to the pension fund,
the employer shall be responsible for the following and shall hereby
specifically delegate the following powers, rights and duties, in
addition to those vested in it elsewhere in the Plan or by law, to
the plan administrator.
(1)
To retain in cash so much of the pension fund as it deems advisable
and to deposit any cash so retained in any bank or similar financial
institution (including any such institution which may be appointed
to serve as trustee hereunder), without liability for interest thereon.
(2)
To invest and reinvest the principal and income of the fund and keep
said fund invested, without distinction between principal and income,
in securities which are at the time legal investments for fiduciaries
under the Pennsylvania Fiduciaries Investment Act, or as the same
may be subsequently modified or amended.
(3)
To sell property held in the fund at either public or private sale
for cash or on credit at such times as it may deem appropriate; to
exchange such property; to grant options for the purchase or exchange
thereof.
(4)
To consent to and participate in any plan of reorganization, consolidation,
merger, extension or other similar plan affecting property held in
the fund; to consent to any contract, lease, mortgage, purchase, sale
or other action by any corporation pursuant to any such plan.
(5)
To exercise all conversion and subscription rights pertaining to
property held in the fund.
(6)
To exercise all voting rights with respect to property held in the
fund and in connection therewith to grant proxies, discretionary or
otherwise.
(7)
To place money at any time in a deposit bank deemed to be appropriate
for the purposes of this Plan no matter where situated, including
in those cases where a bank has been appointed to serve as trustee
hereunder, the savings department of its own commercial bank.
(8)
In addition to the foregoing powers, the employer shall also have
all of the powers, rights, and privileges conferred upon trustees
by the Pennsylvania Fiduciaries Investment Act, or as the same may
be subsequently modified or amended, and the power to do all acts,
take all proceedings and execute all rights and privileges, although
not specifically mentioned herein, as the employer may deem necessary
to administer the pension fund.
(9)
To maintain and invest the assets of this Plan on a collective and
commingled basis with the assets of other pension plans maintained
by the employer, provided that the assets of each respective plan
shall be accounted for and administered separately.
(10)
To invest the assets of the pension fund in any collective commingled
trust fund maintained by a bank or trust company, including any bank
or trust company which may act as a trustee hereunder. In this connection,
the commingling of the assets of this Plan with assets of other eligible,
participating plans through such a medium is hereby specifically authorized.
Any assets of the Plan which may be so added to such collective trusts
shall be subject to all of the provisions of the applicable declaration
of trust, as amended from time to time, which declaration, if required
by its terms or by applicable law, is hereby adopted as part of the
Plan, to the extent of the participation in such collective or commingled
trust fund by the Plan.
(11)
To make any payment or distribution required or advisable to
carry out the provisions of the Plan, provided that if a trustee is
appointed by the employer, such trustee shall make such distribution
only at the direction of the employer.
(12)
To compromise, contest, arbitrate, enforce or abandon claims
and demands with respect to the Plan.
(13)
To retain any funds or property subject to any dispute without
liability for the payment of interest thereon, and to decline to make
payment or delivery thereof until final adjudication is made by a
court of competent jurisdiction.
(14)
To pay, and to deduct from and charge against the pension fund,
any taxes which may be imposed thereon, whether with respect to the
income, property or transfer thereof, or upon or with respect to the
interest of any person therein, which the fund is required to pay;
to contest, in its discretion, the validity or amount of any tax,
assessment, claim or demand which may be levied or made against or
in respect of the pension fund, the income, property or transfer thereof,
or in any matter or thing connected therewith.
(15)
To appoint any persons or firms (including but not limited to,
accountants, investment advisors, counsel, actuaries, physicians,
appraisers, consultants, professional plan administrators and other
specialists), or otherwise act to secure specialized advice or assistance,
as it deems necessary or desirable in connection with the management
of the fund; to the extent not prohibited by applicable law, the employer
shall be entitled to rely conclusively upon and shall be fully protected
in any action or omission taken by it in good faith reliance upon,
the advice or opinion of such persons or firms, provided such persons
or firms were prudently chosen by the employer, taking into account
the interests of the participants and beneficiaries and with due regard
to the ability of the persons or firms to perform their assigned functions.
(16)
To retain the services of one or more persons or firms for the
management of (including the power to acquire and dispose of) all
or any part of the fund assets, provided that each of such persons
or firms is registered as an investment advisor under the Investment
Advisors Act of 1940, is a bank (as defined in that Act), or is an
insurance company qualified to manage, acquire or dispose of pension
trust assets under the laws of more than one state; in such event,
the employer shall follow the directions of such investment manager
or managers with respect to the acquisition and disposition of fund
assets, but shall not be liable for the acts or omissions of such
investment manager or managers, nor shall it be under any obligation
to review or otherwise manage any fund assets which are subject to
the management of such Investment manager or managers. If the employer
appoints a trustee, the trustee shall not be permitted to retain such
an investment manager except with the express written consent of the
employer.
C.
Common investments. The employer shall not be required to make separate
investments for individual participants or to maintain separate investments
for each participant's account, but may invest contributions and any
profits or gains therefrom in common investments.
D.
Compensation and expenses of appointed trustee. If a trustee is appointed,
the trustee shall be entitled to such reasonable compensation as shall
from time to time be agreed upon by the employer and the trustee,
unless such compensation is prohibited by law. Such compensation,
and all expenses reasonably incurred by the trustee in carrying out
his/her functions, shall constitute a charge upon the employer or
the pension fund, which may be executed at any time after 30 days
written notice to the employer. The employer shall be under no obligation
to pay such costs and expenses, and, in the event of its failure to
do so, the trustee shall be entitled to pay the same, or to reimburse
themselves for the payment thereof, from the pension fund.
E.
Periodic accounting. If a trustee is appointed, the pension fund
shall be evaluated annually, or at more frequent intervals, by the
trustee and a written accounting rendered as of each fiscal year end
of the fund, and as of the effective date of any removal or resignation
of the trustee, and such additional dates as requested by the employer,
showing the condition of the fund and all receipts, disbursements
and other transactions effected by the trustee during the period covered
by the accounting, based on fair market values prevailing as of such
date.
F.
Value of the pension fund. All determinations as to the value of
the assets of the pension fund, and as to the amount of the liabilities
thereof, shall be made by the employer or its appointed trustee, whose
decisions shall be final and conclusive and binding on all parties
hereto, the participants and beneficiaries and their estates. In making
any such determination, the employer or trustee shall be entitled
to seek and rely upon the opinion of or any information furnished
by brokers, appraisers and other experts, and shall also be entitled
to rely upon reports as to sales and quotations, both on security
exchanges and otherwise as contained in newspapers and in financial
publications.
A.
Amendment of the Plan. The employer may amend this Plan at any time
or from time to time by an instrument in writing executed in the name
of the employer under its Municipal Seal by officers duly authorized
to execute such instrument and delivered to the Council; provided,
however:
(1)
That no amendment shall deprive any participant or any beneficiary
of a deceased participant of any of the benefits to which each is
entitled under this Plan with respect to contributions previously
made;
(2)
That no amendment shall provide for the use of funds or assets held under this Plan other than for the benefit of employees and no funds contributed to this Plan or assets of this Plan shall, except as provided in Subsection E of this section, ever revert to or be used or enjoyed by the employer; and
B.
Termination of the Plan. The employer shall have the power to terminate
this Plan in its entirety at any time by an instrument in writing
executed in the name of the employer.
C.
Automatic termination of contributions. Subject to the provisions
of the applicable law governing financially distressed municipalities,
the liability of the employer to make contributions to the pension
fund shall automatically terminate upon liquidation or dissolution
of the employer, upon its adjudication as a bankrupt or upon the making
of a general assignment for the benefit of its creditors.
D.
Distribution upon termination.
(1)
In the event of the termination of the Plan, all amounts of vested
benefits accrued by the affected participants as of the date of such
termination, to the extent funded on such date, shall be nonforfeitable
hereunder. In the event of termination of the Plan, the employer shall
direct either:
(a)
That the plan administrator continue to hold the vested accrued benefits
of participants in the pension fund in accordance with the provisions
of the Plan (other than those provisions related to forfeitures) without
regard to such termination until all funds have been distributed in
accordance with the provisions; or
(b)
That the plan administrator immediately distribute to each participant
an amount equal to the vested accrued benefit to the date.
(2)
If there are insufficient assets in the pension fund to provide for
all vested accrued benefits as of the date of Plan termination, priority
shall first be given to the distribution of any amounts attributable
to mandatory or voluntary employee contributions before assets are
applied to the distribution of any vested benefits attributable to
other sources hereunder.
(3)
All other assets attributable to the terminated Plan shall be distributed
and disposed of in accordance with the provisions of applicable law
and the terms of any instrument adopted by the employer which effects
such termination.
E.
Residual assets. If all liabilities to vested participants and any
others entitled to receive a benefit under the terms of the Plan have
been satisfied and there remain any residual assets in the pension
fund, such residual assets remaining shall be returned to the employer
insofar as such return does not contravene any provision of law, and
any remaining balance, in excess of employer contributions, shall
be returned to the commonwealth.
F.
Exclusive benefit rule. In the event of the discontinuance and termination
of the Plan as provided herein, the employer shall dispose of the
pension fund in accordance with the terms of the Plan and applicable
law; at no time prior to the satisfaction of all liabilities under
the Plan shall any part of the corpus or income of the pension fund,
after deducting any administrative or other expenses properly chargeable
to the pension fund, be used for or diverted to purposes other than
for the exclusive benefit of the participants in the Plan, their beneficiaries
or their estates.
A.
Actuarial valuations.
(1)
The Plan's actuary shall perform an actuarial valuation at least
biennially. Such biennial actuarial valuation report shall be made
as of the beginning of each plan year occurring in an odd-numbered
calendar year, beginning with the year 1985. Such actuarial valuation
shall be prepared and certified by an approved actuary, as such term
is defined in the Act.
(2)
The expenses attributable to the preparation of any actuarial valuation
report or experience investigation required by the Act or any other
expense which is permissible under the terms of the Act and which
are directly associated with administering the Plan shall be an allowable
administrative expense payable from the assets of the pension fund.
Such allowable expenses shall include but not be limited to the following:
(a)
Investment costs associated with obtaining authorized investments
and investment management fees;
(b)
Accounting expenses;
(c)
Premiums for insurance coverage on fund assets;
(d)
Reasonable and necessary counsel fees incurred for advice or
to defend the fund; and
(e)
Legitimate travel and education expense for pension plan officials;
provided, however, that the municipal officials of the employer, in
their fiduciary role, shall monitor the services provided to the Plan
to ensure that the expenses are necessary, reasonable and benefit
the pension plan and, further provided, that the plan administrator
shall document all such expenses item by item, and where necessary,
hour by hour.
B.
Duties of Chief Administrative Officer.
(1)
Such actuarial reports shall be prepared and filed under the supervision
of the Chief Administrative Officer.
(2)
The Chief Administrative Officer of the Plan shall determine the
financial requirements of the Plan on the basis of the most recent
actuarial report and shall determine the minimum municipal obligation
of the employer with respect to funding the Plan for any given plan
year. The Chief Administrative Officer shall submit the financial
requirements of the Plan and the minimum municipal obligation of the
employer to the Council annually and shall certify the accuracy of
such calculations and their conformance with the Act.
C.
Benefit modifications. Prior to the adoption of any benefit plan
modification by the employer, the Chief Administrative Officer of
the Plan shall provide to the Council a cost estimate of the proposed
benefit plan modification. Such estimate shall be prepared by an approved
actuary, which estimate shall disclose to the Council the impact of
the proposed benefit plan modification on the future financial requirements
of the Plan and the future minimum municipal obligation of the employer
with respect to the Plan.
A.
Employment rights. Participation in this Plan shall not give any
right to any employee to be retained in the employ of the employer
nor shall it interfere with the right of the employer to discharge
any employee and to deal with such employee without regard to the
effect that such treatment might have upon participation in this Plan.
B.
Meaning of certain words. As used herein the masculine gender shall
include the feminine gender and the singular shall include the plural
in all cases where such meaning would be appropriate. Headings of
articles and sections are inserted only for convenience of reference
and are not to be considered in the construction of the Plan.
C.
Information to be furnished by the employer. The employer shall furnish
to the plan administrator (and where applicable, the trustee) information
in the employer's possession as the plan administrator and the trustee
shall require from time to time to perform their duties under the
Plan.
D.
Incapacity of participant. If any participant shall be physically
or mentally incapable of receiving or acknowledging receipt of any
payment of pension benefits hereunder, the plan administrator, upon
the receipt of satisfactory evidence that such participant is so incapacitated
and that another person or institution is maintaining the participant
and that no guardian or committee has been appointed for the participant,
may provide for such payment of pension benefits hereunder to such
person or institution so maintaining the participant, and any such
payments so made shall be deemed for every purpose to have been made
to such participant.
E.
Pension fund for sole benefit of participants. The income and principal
of the pension fund are for the sole use and benefit of the participants
of this Plan, and, to the extent permitted by law, shall be free,
clear and discharged from and are not to be in any way liable for
debts, contracts or agreements, now contracted or which may hereafter
be contracted, and from all claims and liabilities now or hereafter
incurred by any participant or beneficiary.
F.
Benefits for a deceased participant. If any benefit shall be payable
under the Plan to or on behalf of a participant who has died, if the
Plan provides that the payment of such benefits shall be made to the
participant's estate, and if no administration of such participant's
estate is pending in the court of proper jurisdiction, then the plan
administrator, at its sole option, may pay such benefits to the surviving
spouse of such deceased participant, or, if there be no such surviving
spouse, to such participant's then living issue, per stirpes; provided,
however, that nothing contained herein shall prevent the plan administrator
from insisting upon the commencement of estate administration proceedings
and the delivery of any such benefits to a duly appointed executor
or administrator.
G.
Assets in pension fund. Nothing contained herein shall be deemed
to give any participant or beneficiary any interest in any specific
property of the pension fund or any right except to receive such distributions
as are expressly provided for under the Plan.
H.
Personal liability. Subject to the provisions of the Act and unless
otherwise specifically required by other applicable laws, no past,
present or future officer or agent of the employer or plan administrator
shall be personally liable to any participant, beneficiary or other
person under any provision of the Plan.
