[Adopted 4-1-2014 as Exhibit A of Ord. No. 590-RSTUV[1]]
[1]
Editor's Note: The body of this ordinance provided as follows:
"Section 1: The plan was established as of December 29, 1975,
pursuant to resolution and under the provisions of Act 600 for the
benefit of the Borough's police employees and has been amended and
restated, from time to time, by the enactment of amending ordinances
of the Slippery Rock Borough Council. The Slippery Rock Police Association
has reviewed and agreed upon the amendments and restatement. The plan
shall be, and hereby is, restated, amended and supplemented as set
forth in Section 2.
Section 2. The plan shall be restated and amended by entirely
substituting therefor the provisions of said plan attached hereto
as Exhibit "A" and incorporated herein. Any ordinances, resolutions
or parts of ordinances or resolutions conflicting with the provisions
of this ordinance shall be and hereby are repealed so far as the same
affect this ordinance; however, such repeal shall not affect any act
done or any right or liability accrued under such ordinance or resolution
herein repealed or superseded, and all such rights or liabilities
shall continue and may be enforced in the same manner as if such repeal
or supersession had not been made but only to the extent otherwise
permitted under the laws of the Commonwealth of Pennsylvania.
Section 3. This ordinance shall be effective as of January
1, 2014."
The following words and phrases, as used herein, shall have
the meanings set forth in this section, unless a different meaning
is plainly required by the context:
As of any given computation date, the participant's monthly benefit determined in accordance with § 48-11B, calculated on the basis of final monthly average compensation as of the date of determination and multiplied by a fraction, the numerator of which shall be the participant's aggregate service determined as of such date and the denominator of which shall be the projected aggregate 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 § 48-11F. All accrued benefits are subject to all applicable limitations, reductions, offsets and actuarial adjustments provided by the plan prior to the actual payment thereof.
The total amount contributed by any participant to this fund or its predecessor by way of payroll deduction or otherwise, plus interest credited at the rate of 3% per annum. Interest shall be credited annually in the form of a compound interest rate from the midpoint of the plan year during which the contributions were paid to the first day of the month preceding the date on which a distribution of accumulated contributions under § 48-13C or 48-14B shall be paid or payment of benefits shall commence.
The Municipal Pension Plan Funding Standard and Recovery
Act which was 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 actuarial present value shall be determined
by use of the 1983 Group Annuity Mortality Table and seven-percent
interest, unless otherwise specifically provided herein.
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.
The total period or periods of the participant's employment
with the employer, whether or not interrupted. Notwithstanding the
preceding sentence, should any such participant receive a distribution
of accumulated contributions with respect to a period of employment,
such period of employment shall not be included in the aggregate service
thereafter, unless, at the commencement of the next period of employment,
the participant repays to the fund the amount of the distribution,
plus interest. For purposes of this definition, interest shall accrue
as of the date the employee receives a distribution of accumulated
contributions and shall be computed at the same rate and in the same
manner as described in the definition of "accumulated contributions."
The eligible children are registered at an accredited institution
of higher learning and are carrying a minimum course load of seven
credit hours per semester.
A 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.
"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.
The person designated by Slippery Rock Borough Council who
has the primary responsibility for the execution of the administrative
affairs for the plan.
The Internal Revenue Code of 1986, as amended.
The Pension Plan Committee, as more fully described in § 48-15B, which may be appointed by the Council to administer the terms of the plan.
The total remuneration of the employee, whether salary or
hourly wages, including overtime pay, holiday pay, longevity pay and
any other form of remuneration, excluding reimbursement for expenses,
paid by the employer for police services rendered. Compensation shall
be limited on an annual basis to the amount specified for government
plans pursuant to Code Section 401(a)(17), as adjusted under Code
Section 415(d).[1]
The Slippery Rock Borough Council.
A participant who has completed at least 12 years of service, who has separated from employment for reasons other than retirement, death or disability, and who has elected to receive a vested retirement benefit pursuant to § 48-14C to commence at normal retirement age.
The date when a participant is determined by the plan administrator
to be incapacitated due to total and permanent disability or the date
when the participant's employment terminates due to such total and
permanent disability, if later.
Any individual employed by the employer on a regular, full-time
basis as a police officer of the employer's police force.
Slippery Rock Borough, Butler County, Pennsylvania.
For the purpose of determining aggregate service:
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 a police officer.
Any period of time for which an employee is paid, either directly
by the employer or through a program to which the employer has made
contributions on behalf of the employee, a fixed, periodic amount
in the nature of salary continuation payments for reasons other than
the performance of duties (such as vacation, holidays, sickness, entitlement
to benefits under workers' compensation or similar laws).
Any period during which an employee is entitled to disability
benefits under this plan, provided that the employee returns to employment
within three months of the date on which it is determined that the
employee is no longer totally and permanently disabled if such determination
occurs prior to the date a participant attains normal retirement age.
Any period of voluntary or involuntary military service with
the armed forces of the United States of America, provided that the
participant has been employed as a regular, full-time member of the
employer's police force for a period of at least six months immediately
prior to the period of military service, and the participant returns
to employment within six months following discharge from military
service or within such longer period during which employment rights
are guaranteed by applicable law or under the terms of a collective
bargaining agreement with the employer, and provided that the participant
is not entitled to receive, eligible to receive now or in the future
or is receiving retirement benefits for such military service under
a retirement system administered and wholly or partially paid for
by any other governmental agency, except military retirement pay earned
by a combination of active and nonactive duty with a reserve or national
guard component of the armed forces which is payable upon the attainment
of a specified age and period of service under 10 U.S.C. Chapter 1223
(relating to retired pay for nonregular service).[2]
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 period of voluntary or involuntary military service with
the armed forces of the United States of America not to exceed a total
of five years which occurred prior to the date on which a participant
first became employed as an employee of the employer, provided that
the participant shall purchase such credit and that such participant
is not entitled to receive, eligible to receive or is receiving retirement
benefits for such military service under a retirement system administered
and wholly or partially paid for by any other governmental agency,
except military retirement pay earned by a combination of active and
nonactive duty with a reserve or national guard component of the armed
forces which is payable upon the attainment of a specified age and
period of service under 10 U.S.C. Chapter 1223 (relating to retired
pay for nonregular service). The purchase price for such service shall
be computed by multiplying the average normal cost rate for the plan
as certified by the Public Employee Retirement Commission and not
to exceed 10% times the participant's average annual rate of compensation
during the first three years of employment and multiplying the result
times the number of years and fractions thereof being purchased. Interest
shall be paid at a rate of 4.75% compounded annually from the first
date of employment to the date of payment.[3]
The average monthly compensation earned by the participant
for services rendered as an employee in employment during the consecutive
thirty-six-month period preceding termination or retirement. "Compensation"
shall include the employer's compensation (W-2) to which the employee
is entitled for the rendering of services in employment, but excludes
lump sum payments, paid upon retirement or otherwise, for any form
of accrued but unused paid leave. Compensation used to determine final
average monthly compensation shall be limited on an annual basis to
the amount specified for government plans in accordance with Code
Section 401(a)(17), as adjusted under Code Section 415(d).[4]
A legal reserve life insurance company authorized to do business
in the Commonwealth of Pennsylvania.
The minimum obligation of the municipality as determined
by the actuary pursuant to provisions of the Act.
The date on which the participant has completed at least
25 years of service with the employer and has attained age 50.
The day of attainment of normal retirement age.
A written document prepared in the form specified by the
plan administrator. If such notice or election is to be provided by
the employer or the plan administrator, it shall be mailed in a properly
addressed envelope, postage prepaid, to the last known address of
the person entitled thereto, on or before the last day of the specified
notice or election period. 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.
An employee who has met the eligibility requirements to participate in the plan as provided in § 48-9A and who has not for any reason ceased to be a participant hereunder.
The pension fund administered under the terms of this plan
and which shall include all money, property, investments, policies
and contracts standing in the name of the plan.
The plan set forth herein, as amended from time to time and
designated as "Slippery Rock Borough Police Pension Fund."
The committee or individual appointed by the Council for
the purpose of supervising and administering the provisions of the
plan. In the event that no such appointment is made, the plan administrator
shall be the Council.
The twelve-month period beginning on January 1 and ending
on December 31 of each year.
A retirement annuity or retirement income endowment policy
(or a combination of both) or any other form of insurance contract
or policy which shall be deemed appropriate in accordance with the
provisions of applicable law.
January 1, 2002, the date upon which this amendment and restatement
of the plan becomes effective.
The first day of the month coincident with or next following
the date on which the participant retires from employment or the first
day of any month thereafter on which the payment of retirement benefits
pursuant to this plan shall commence.
The amount calculated pursuant to § 48-11D on behalf of a participant for each completed year of aggregate service accumulated in excess of 25 years.
A condition of physical or mental impairment due to which a participant is unable to perform the usual and customary duties of employment and which is reasonably expected to continue to be permanent for the remainder of the participant's lifetime. For purposes of this definition and § 48-12, a condition shall not be treated as a total and permanent disability unless such condition is a direct result of and occurs in the line of duty of employment. Therefore, an employee whose physical or mental impairment does not occur in the line of duty or which is a result of alcoholism, addiction to narcotics, willfully self-inflicted injuries, or the perpetration of any criminal activity is not entitled to receive disability benefits under the plan.
A.
Eligibility requirements. Each employee who is employed as a regular,
full-time permanent member of the Police Department of the employer
shall participate herein as of the date on which such employee's employment
first commences or recommences, provided all prerequisites to participation
under this plan shall have been fulfilled, including but not limited
to completion of all forms required by the plan administrator.
B.
Notification of plan administrator. The Council shall furnish the
plan administrator with written notification of the appointment of
any new full-time permanent employee who is eligible for participation
hereunder.
C.
Designation of beneficiary. Any new, full-time employee who becomes
a participant hereunder shall provide a written notice in the manner
prescribed by the plan administrator which designates a beneficiary
at the time participation commences. The participant's election of
any such beneficiary may be rescinded or changed, without the consent
of the beneficiary, at any time, provided the participant provides
the written notice of the changed designation to the plan administrator
in the manner prescribed by the plan administrator. Any designation
of a beneficiary made in any manner other than one acceptable to the
plan administrator shall be null and void and have no effect under
the terms of the plan.
A.
Participant contributions. Each participant shall as a requirement
of participation pay regular contributions to the pension fund in
an amount equal to not less than 5% nor more than 8% of the participant's
annual compensation. The Council shall fix the annual rate of contribution.
Each participant shall complete the necessary forms to authorize the
payment of participant contributions by way of payroll deduction in
equal and proportionate monthly installments.
B.
Reduction of participant contributions. Notwithstanding the preceding Subsection A, if an actuarial study performed by the actuary shows that the condition of the pension fund is such that payments into the pension fund by participants may be reduced below the minimum percentages prescribed in Subsection A, or may be eliminated, and that if such payments are reduced or eliminated, contributions by the employer will not be required to keep the pension fund actuarially sound, the employer may, on an annual basis, by ordinance or resolution, reduce or eliminate payments into the pension fund by participants. No liability under the Police Pension Fund, however, for retirement benefits or death or disability payments shall be a charge on any other fund of the Borough, save the Police Pension Fund as herein provided.
C.
Employer contributions. The actuary, in accordance with the Act,
shall 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.
D.
State aid. General municipal pension system state aid, or any other
amount of 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 in amounts determined by the Council and shall
be used to reduce the amount of the minimum municipal obligation of
the employer.
E.
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.
A.
Normal retirement. Each participant shall be entitled to normal retirement
benefits after retirement on or after the participant has attained
normal retirement age.
B.
Normal retirement benefit. Each participant who shall become entitled to a benefit pursuant to Subsection A shall receive a benefit paid monthly in an amount equal to not more than 50% of the participant's final monthly average compensation as determined herein.
C.
Late retirement. A participant may continue to work beyond the attainment of 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 continues to work beyond normal retirement age, there shall be no retirement benefits paid until employment ceases and retirement begins. The retirement benefit of a participant who retires after attainment of normal retirement age shall be calculated in accordance with Subsection B on the basis of the final monthly average compensation as of such participant's actual retirement date.
D.
Service increment. Notwithstanding anything contained herein to the contrary, a participant who shall retire after completion of at least 26 years of aggregate service may be entitled to receive a monthly service increment benefit; provided, however, that the participant shall have accrued sufficient service credit pursuant to this Subsection D. Such service increment shall only be available to a participant who shall retire on a retirement date after attainment of normal retirement age and whose aggregate service for purposes of this Subsection D shall only include periods of time when the participant actively renders service in employment and periods of military service credit which the participant has purchased under the definition of "employment" in § 48-8 but shall not include any period of time during which the participant received a disability benefit under the terms of this plan or was not otherwise in active employment. Such service increment shall be an amount equal to $100 for each completed year of aggregate service in excess of 25 years, but shall not exceed $100, and shall be paid monthly in addition to the amount of normal retirement benefit calculated pursuant to Subsection B hereof.
E.
Payment of benefits. Retirement benefit payments shall be payable
as of the first day of the month coincident with or next following
the participant's retirement date and the first day of each month
thereafter during the participant's lifetime. A participant must complete
an application for benefit in the manner prescribed by the plan administrator
and deliver such application to the plan administrator at least 30
days prior to the date on which benefit payments shall commence. Notwithstanding
anything contained herein to the contrary, no retirement benefit payments
nor any other 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 benefits. Payment of benefits hereunder shall cease as of the
date of death of the participant.
F.
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 for government plans in Code Section 415(b)(1)(A),
as adjusted pursuant to Code Section 415(d),[1] assuming the form of benefit shall be a straight life annuity (with no ancillary benefits). The limitations described in this Subsection F 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 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 subsection commencing at age 62; however, the reduction shall
not reduce the limitation below $75,000 for a benefit commencing at
or after age 55, or, if the benefit commences prior to attainment
of age 55, the amount which is actuarially equivalent to a benefit
of $75,000 commencing at age 55; 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
reduce the limitation to an amount less than the amount specified
for government plans pursuant to Code Section 415(b)(2)(G), and such
amount shall be adjusted pursuant to Code Section 415(d);[2]
[2]
Editor's Note: See 26 U.S.C. §§ 415(b)(2)(G)
and 415(d).
(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 to the amount determined herein 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 Subsection F, 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 § 48-12B with fewer than 10 years of participation, the limitation expressed in this Subsection F(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[3] and regulations thereunder as applicable to government
plans in general and this plan in particular; and
[3]
Editor's Note: See 26 U.S.C. § 415.
[1]
Editor's Note: See 26 U.S.C. §§ 415(b)(1)(A)
and 415(d).
G.
Required distributions.
(1)
Notwithstanding any other provision of this plan, the entire benefit
of any participant who becomes entitled to benefits prior to death
shall be distributed either:
(a)
Not later than the required beginning date; or
(b)
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).
(2)
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 G(1)(b) above, the remaining portion of such benefit shall be distributed at least as rapidly as under the method of distribution being used under Subsection G(1)(b) as of the date of death.
(3)
If a participant who is entitled to benefits under this plan dies
before distribution of benefits 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 70 1/2, and further provided that 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.
(4)
For purposes of this Subsection G, the following definitions and procedures shall apply:
(a)
"Required beginning date" shall mean April 1 of the calendar
year following the later of the calendar year in which the employee
attains age 70 1/2, or the calendar year in which the employee
retires.
(b)
The phrase "designated beneficiary" shall mean any individual
designated by the employee under this plan according to its rules.
(c)
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 reaching majority (or other designated
event permitted under regulations issued by the Secretary of the Treasury).
H.
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, entered by a court of competent
jurisdiction, that provides for the proper distribution of the pension
benefit payments to an alternate payee [e.g., a former spouse of a
participant, child, etc., as provided by Code Section 414(p)(8)[4]] and does not require any benefit to be paid in excess
of the available earned and accrued benefit under the plan.
[4]
Editor's Note: See 26 U.S.C. § 414(p)(8).
I.
Retired participants. Any participant who shall have retired prior
to the restatement date shall not have the benefit altered in any
way by the provisions of this amended and restated plan, except where
otherwise expressly provided herein. Such retired participants shall
continue to have their benefits governed by the terms of the plan
in effect on the day preceding the restatement date.
J.
Cost-of-living adjustments. Each participant who shall retire on or after January 1, 1999, and receive a retirement benefit determined pursuant to Subsection B of this section or § 48-12B hereunder shall be entitled to receive a cost-of-living adjustment to the amount of benefit payable to such participant effective as of the first day of each plan year following the date which is 12 months after the date benefit payments commenced. No cost-of-living adjustment shall ever exceed any of the following limits:
(1)
The
percentage increase in the consumer price index (urban wage earners
and clerical workers) from the year in which the participant was last
employed as an employee of the employer;
(2)
The
total retirement benefits payable under this plan shall not exceed
75% of the participant's final monthly average compensation;
(3)
The
total cost-of-living adjustment shall not exceed 30% of the participant's
retirement benefit under this plan; and
(4)
The
cost-of-living adjustment shall not impair the actuarial soundness
of the pension fund.
A.
Disability retirement. A participant who shall incur a total and
permanent disability shall be entitled to a disability retirement
benefit as of the disability date.
B.
Disability retirement benefit. A participant who shall be entitled to a disability retirement benefit under Subsection A shall receive a benefit in an amount equal to 50% of the participant's final monthly average compensation determined as of the disability date multiplied by the ratio of completed years of service at the disability date to the total years of service the participant would have attained at normal retirement age. The amount of disability retirement benefit payable hereunder shall be reduced by any employer-provided disability benefits to which the participant is entitled as a result of such participant's total and permanent disability, including statutory benefits such as workers' compensation, social security disability benefits and other insured benefits.
C.
Payment of disability benefits. Disability payments shall be made monthly as of the first day of each month, commencing as of the first day of the month coincident with or immediately following the date that the participant incurs the total and permanent disability as certified by a physician and continuing for the life of the participant, or terminating earlier should a physician report and certify to Council that the participant no longer has a total and permanent disability. A participant who shall fail to return within three months to employment as an employee of the employer upon cessation of total and permanent disability prior to attainment of normal retirement age shall be deemed to have terminated employment as of the disability date, shall be entitled to either a distribution of accumulated contributions pursuant to § 48-14B or a deferred vested benefit pursuant to § 48-14C and shall not be entitled to any other benefits under the plan on account of any aggregate service as of the disability date.
D.
Verification of disability. The plan administrator shall in its sole
discretion determine whether a participant shall have incurred a total
and permanent disability. The plan administrator shall rely on the
report of a physician acceptable to the plan administrator. If the
plan administrator shall determine that a participant who is totally
and permanently disabled has recovered sufficiently to resume active
employment as a police officer 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 participant shall cease to
be considered totally and permanently disabled.
E.
Cessation of disability. A participant must notify the plan administrator
of any change which may cause a cessation of entitlement to receipt
of any disability retirement benefit hereunder. If a participant fails
to provide immediate notice to the plan administrator of any such
change in status and receives payment of benefits hereunder to which
the participant is not entitled, then the plan may take whatever action
is necessary to recover any amount of improperly paid amounts, including
legal action or offsetting such amounts against any future payments
of retirement or other benefits under the plan, including the costs
of such actions.
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. There shall be no duplication of benefits payable
hereunder, therefore only one benefit shall be payable as a result
of the death of a participant.
C.
Survivor benefit. The surviving spouse of a participant who, prior
to April 18, 2002, retired on pension and dies subsequent to retirement
or who, after April 16, 2002, retires on pension and dies subsequent
to retirement, or, if no spouse survives or if the spouse survives
and subsequently dies, the child or children under the age of 18 years
or, if attending college, under or attaining the age of 23 years of
such participant, shall, during his/her lifetime in the case of a
surviving spouse, or until reaching the age of 18 years or, if attending
college, under or attaining the age of 23 years in the case of a child
or children, be entitled to receive a pension calculated at 50% of
the pension the participant was receiving or would have been receiving
had the participant been retired at the time of the participant's
death. Payments shall commence as of the first day of the month following
the participant's date of death. The survivor benefit shall be paid
monthly to the surviving spouse of the participant, if any, until
the date of death of the surviving spouse. Upon the death of the surviving
spouse, or if there is no surviving spouse, the survivor benefit shall
be paid monthly in equal shares to the surviving dependent children
of the deceased participant if under the age of 18 or, if attending
college, under or attaining the age of 23 years of age. The shares
payable to the surviving dependent children shall be adjusted as each
child ceases to be eligible to receive a share of the benefit hereunder.
D.
Death of participant prior to retirement. If a participant shall die before payment of a benefit has commenced and without eligibility for payment of a survivor benefit under § 48-13C, the beneficiary shall be eligible to receive a distribution in an amount equal to the accumulated contributions of the participant, plus interest as provided in the definition of "accumulated contributions" in § 48-8 or other increases in value of the participant's investment in the pension fund, as of the date of death of the participant or as of the first of the month in which the death occurred.
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
with interest at the rate of 3% per annum. Upon receipt of such accumulated
contributions, said participant and beneficiary shall not be entitled
to any further payments from the plan.
C.
Deferred vested benefit. A participant who has completed at least 12 years of aggregate service and whose employment with the employer shall terminate from a full-time position 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 vested benefit in lieu of a distribution of accumulated contributions under Subsection B. The participant must declare his election in writing within 90 days of the day he ceases to be a full-time police officer with the Borough. Such a deferred vested benefit shall commence after application pursuant to § 48-11E as of the first day of the month coincident with or next following the date on which the participant's normal retirement age would be attained if the participant continued in employment until such date. Upon reaching the normal retirement date and following the participant's application, the participant shall be paid a partial superannuation retirement allowance determined by applying the percentage his years of service bears to the years of service which he would have rendered had he continued to work until his normal retirement date to the gross pension, using, however, the final monthly average compensation. Such pension or retirement benefits for any month shall be computed at no more than 1/2 the final monthly average compensation of the participant.
A.
Plan administrator. The plan administrator shall be the committee
or the individual appointed by the Council who 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.
Police Pension Committee. If the Council shall appoint a Police Pension
Committee to administer the affairs of the plan, the Council shall
delegate such authority as it shall deem appropriate to the Committee.
The Committee shall consist of not more than five members who shall
be appointed by the Council. Each member of the Committee shall serve
in that capacity until death, resignation, removal or otherwise. Each
member may be removed at any time, with or without cause, by the Council.
Each member may resign by delivering written notice to the Council
and other members of the Committee. Vacancies on the Committee shall
be filled in the same manner as the position was originally filled.
The Council is not required to appoint a Police Pension Committee.
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,
upon the Council's review and approval thereof, 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; and
(h)
To appoint and retain any individual to assist in the administration
of the plan, including such legal, clerical, accounting and actuarial
services as may be required by any applicable law or laws.
(2)
The 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, to select or
appoint any trustee or to determine or require any contributions to
the plan, said powers being exclusively reserved to the Council.
D.
Police Pension Committee organization. If the Council appoints a
Committee, it may organize itself in any manner deemed appropriate
to effectuate its purposes hereunder, subject to the following:
(1)
The Committee shall act by a majority of its members at the time
in office, and such action may be taken either by vote at a meeting
or in writing without a meeting.
(2)
The Committee shall, from time to time, appoint a Chairman, a Secretary
who may, but need not, be a Committee member and such other agents
as it may deem advisable.
(3)
The Committee may, from time to time, 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 the name or names of the member
or members so authorized. In the absence of a designation, the Chairman
shall be deemed to be so authorized. Any trustee or other fiduciary
appointed hereunder shall accept and be fully protected in relying
upon any document executed by the designated member or members (or
the Chairman in the absence of a designation) as representing a valid
action by the Committee until the Committee shall file with such fiduciary
a written revocation of such designation.
(4)
The Committee, or its delegate, shall maintain and keep such records
as are necessary for the efficient operation of the plan or as may
be required by any applicable law, regulation or ruling and shall
provide for the preparation and filing of such forms or reports 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.
E.
Plan administrator costs. The plan administrator shall serve without
compensation for services unless otherwise agreed by the Council in
writing. 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.
F.
Hold harmless. No member of the Council, the plan administrator,
the enrolled actuary, 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 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 is or may be made a party by reason of being
or having been a member, 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.
G.
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.
H.
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 the specific plan provisions on which the denial is
based; an explanation of additional material or information, if any
necessary to perfect such claim, and a statement of why such material
or information is necessary; and an explanation of the review procedure.
(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 this Subsection H has been exhausted.
A.
Operation of the pension fund.
(1)
The Council 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 and of this plan and any amendment thereto.
(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. 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
employer may, however, appoint a trustee, custodian and/or investment
manager at its sole discretion.
B.
Powers and duties of employer. With respect to the pension fund,
the employer shall have the following powers, rights and duties, in
addition to those vested in it elsewhere in the plan or by law, unless
such duties are delegated:
(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.
The Council may deposit funds in a federally insured bank up to the
insured limit; however, the Council may deposit pension funds in excess
of the FDIC limit if the excess deposit is secured by pledge of the
Bank of Federal Securities to the satisfaction of the Borough.
(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,[1] or as the same may be subsequently modified or amended.
[1]
Editor's Note: See now 20 Pa.C.S.A. § 7301 et seq.
(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,[2] 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.
[2]
Editor's Note: See 15 U.S.C. § 80b-1 et seq.
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
its 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 be reimbursed
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 he is entitled
under this plan with respect to contributions previously made;
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 Act 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. 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 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 that the plan administrator immediately distribute
to each participant an amount equal to the vested accrued benefit
to the date. 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. 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. In accordance
with Section 401(a)(8) of the code,[1] any forfeiture shall not be applied to increase the benefits
that any employee would otherwise receive under the plan.
[1]
Editor's Note: See 26 U.S.C. § 401(a)(8).
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 the 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. The plan's actuary shall perform an actuarial
valuation at least biennially unless the employer is applying or has
applied for supplemental state assistance pursuant to Section 603
of the Act,[1] whereupon actuarial valuation reports shall be made annually.
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.
The Council may request an actuarial valuation report to be conducted
at any other time as, in its opinion, is necessary to ascertain the
soundness of the fund. The expenses attributable to the preparation
of any actuarial valuation report or 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:
(1)
Investment costs associated with obtaining authorized investments
and investment management fees;
(2)
Accounting expenses;
(3)
Premiums for insurance coverage on fund assets;
(4)
Reasonable and necessary counsel fees incurred for advice or to defend
the fund; and
(5)
Legitimate travel and education expenses for 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 plan, and further
provided that the plan administrator shall document all such expenses
item by item and, where necessary, hour by hour.
[1]
Editor's Note: See 53 P.S. § 895.603.
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 plan 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. No employee of the employer nor anyone else shall
have any rights whatsoever against the employer or the plan administrator
as a result of this plan except those expressly granted to them hereunder.
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. For purposes of this plan, the masculine
gender shall include the feminine, and the singular shall include
the plural, and vice versa, in all cases wherever the person or context
shall plainly so require. Headings of sections and subsections are
included solely for convenience of reference, and if there be any
conflict between such headings and the text of the plan, the text
shall control.
C.
Construction of document. This plan may be executed and/or conformed
in any number of counterparts, each of which shall be deemed an original
and shall be construed and enforced according to the laws of the commonwealth,
excepting such commonwealth's choice of law rules.
D.
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.
E.
Severability of provisions. Should any provisions of this plan be
held illegal or invalid for any reason, said illegality or invalidity
shall not affect the remaining parts of this plan, and the plan shall
be construed and enforced as if said illegal and invalid provisions
had never been inserted herein.
F.
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.
G.
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 shall be personally
liable to any participant, beneficiary or other person under any provision
of the plan.
H.
Assets of the 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.
I.
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
covered hereunder 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.
J.
Military service.
(2)
Heroes Earning Assistance Tax Relief Act of 2008 (HEART Act). Except
where otherwise specifically provided to the contrary in this plan,
effective for deaths occurring on or after January 1, 2007, the plan
will provide benefits and service credit to the extent that the plan
is required and mandated by the HEART Act to provide said benefits
and/or service credit.
(3)
Differential wage payments. Effective as of January 1, 2009, to the
extent required by the HEART Act, differential wage payments shall
be included in compensation for purposes of determining benefits.
K.
Distributions for health insurance. An eligible retired public safety
officer may elect, in accordance with Code Section 402(l),[2] that a portion of his annuity benefit that would otherwise
be paid to him under the plan instead may be used to purchase health
insurance, subject to the following conditions:
(1)
The term "eligible retired public safety officer" means an individual
who, by reason of disability or attainment of normal retirement age,
is separated from service as a public safety officer with the employer
and is a participant in this plan. The term "public safety officer"
shall have the same meaning given such term by Section 1204(9)(A)
of the Omnibus Crime Control and Safe Streets Act of 1968 [42 U.S.C.
§ 3796b(9)(A)]. Any participant who terminated employment
prior to normal retirement age for any reason other than disability
is not eligible to make the election. Beneficiaries are not eligible
to make the election.
(2)
Payments shall be made only for qualified health insurance premiums
as that term is used in Code Section 402(l).
(3)
An eligible public safety operator may elect to have no more than
$3,000 of his benefit used to pay insurance premiums per calendar
year. The dollar amount is periodically adjusted, without formal amendment,
in accordance with Code Section 402(l).
(4)
Any election under this section shall become void at the death of
the eligible retired public safety officer.
[2]
Editor's Note: See 26 U.S.C. § 402(l).
