[HISTORY: Adopted by the Borough Council of the Borough of
Etna as indicated in article histories. Amendments noted where applicable.]
[Adopted 2-17-1964 by Ord. No. 960 (Ch. I, Part 6, of the 1974 Code of
Ordinances)]
The Borough of Etna, having placed all of its employees, as
far as they are eligible, under the Federal Social Security Act, hereby
elects to join the Municipal Employees' Retirement System, established
by the Act of June 4, 1943, P.L. 886, as last amended by the Act of
August 24, 1963, No. 485,[1] and does hereby agree to be bound by all the requirements
and provisions of the said Act and to assume all obligations, financial
and otherwise, placed upon member municipalities by said Act.
[1]
Editor's Note: The Act of 1943, as amended, was repealed
and superseded by the Pennsylvania Municipal Retirement Law (1974
P.L. 35 No. 15), Section 201 of which provided for the uninterrupted
continuation of retirement plans established under the Act of 1943.
Membership for elected officials shall be prohibited, and membership
for employees paid on a per diem basis shall be prohibited. Officers
and employees paid wholly on a fee basis shall not be eligible for
membership in the system.
Credit for prior service toward the municipal annuity of each
original member shall be for all years of service to the Borough.
The Borough does hereby assume the liability for payment of 100% of
the member's contributions for all years of service toward the
member's annuity for the prior service of each original member.
Payment for the prior years' service noted in § 85-3 hereof shall be made by the Borough in accordance with Section 14 of said Act and may be spread over a period of 30 years if the Borough so chooses and with the consent of the Municipal Employees' Retirement Board.
The Borough does hereby incorporate the said Municipal Employees'
Retirement Law, as last amended by the Act of August 24, 1963, No.
485, as a part of this article insofar as the said Act, as amended,
applies to a member municipality, having accepted the options set
out in this article.
The Borough does hereby elect to extend the provisions of Section
20.1 of the Municipal Employees' Retirement Law, Act of June
4, 1943, P.L. 886, added by the Act of August 24, 1963, No. 485,[1] so that contributors to the retirement system shall have
the options and enjoy the protections of the provisions set forth
in Subsection (a) and (b) of Section 20.1 of the Municipal Employees'
Retirement Law, and Section 20.1 is hereby incorporated and made a
part hereof by reference thereto.
[1]
Editor's Note: Section 20.1 relates to death benefits.
[Adopted 8-16-1994 by Ord. No. 1231; amended in its entirety 12-17-2002 by Ord. No. 1294; 6-16-2014 by Ord. No. 1352]
The following words and phrases, as used in this article, shall
have the meanings set forth in this section, unless a different meaning
is otherwise clearly required by the context:
As of any given date, the benefit determined under § 85-10B, calculated on the basis of final monthly average salary 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. The accrued benefit shall include any service increment determined pursuant to § 85-10D attributable to the participant's aggregate service as of the determination date.
In no event, however, shall the accrued benefit exceed the maximum limitation, determined as of the date of computation, provided under § 85-10H. All accrued benefits are subject to all applicable limitations, reductions, offsets, and actuarial adjustments provided pursuant to the terms of 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 5% per annum. Interest shall be credited in the form of a compound interest rate from the first day of the plan year during which the contributions were paid to the first day of the month preceding the date that a distribution of accumulated contributions under §§ 85-12D and 85-13B 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 Pa.C.S.A.
§ 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 UP-1984 Mortality Table and 6.5% 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 aggregate service
thereafter unless, at the commencement of the next period of employment,
the participant repays to the fund the amount of such distribution
with 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"
in this section. Aggregate service shall be calculated in whole years,
months and days.
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.
The person or entity designated by the participant to receive
a distribution of the participant's accumulated contributions
should the participant die prior to becoming entitled to a retirement
benefit. 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.
The person designated by the Borough who has the primary
responsibility for the execution of the administrative affairs for
the plan.
The Internal Revenue Code of 1986, as amended.
The Police Pension Committee, as determined pursuant to § 85-14B.
The Commonwealth of Pennsylvania.
The total remuneration of the employee, whether salary or
hourly wages, including only overtime pay, holiday pay, longevity
pay, unused sick pay earned during the averaging period and court
pay paid by the employer for police services rendered. Compensation
shall be limited on an annual basis for purposes of the plan to the
amount specified pursuant to Code Section 401(a)(17), as adjusted
under Code Section 415(d).
The Borough Council of the Borough of Etna.
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 member of the employer's police force.
The Borough of Etna, Allegheny 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 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), either directly by the employer or through a program to which
the employer has made contributions on behalf of the employee;
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.
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 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.
The average monthly salary earned by the participant and paid
by the employer during the final 36 months immediately preceding termination
of active employment. Salary shall include the employee's compensation
to which the employee is entitled for the rendering of services in
employment.
Final monthly average salary shall be calculated by taking into
account only those periods during which an employee receives salary,
as that term is defined in this section. Therefore, for example, the
final monthly average salary for a participant who is voluntarily
or involuntarily serving in the United States armed forces during
the final 36 months of aggregate service shall be based on the period
during which the employee last received salary (as defined in the
preceding paragraph) from the employer.
Salary used to determine final monthly average salary shall
be limited on an annual basis for purposes of the plan to the amount
specified in accordance with Code Section 401(a)(17), as adjusted
under Code Section 415(d).
A legal reserve life insurance company authorized to do business
in the Commonwealth of Pennsylvania.
The fixed periodic payments for the final completed calendar
year of active employment, subject to future interpretation by the
state courts or state Legislature, at which time this definition shall
comply with the court or legislative interpretation.
The minimum obligation of the municipality as determined
by the actuary pursuant to the provisions of the Act.
The date on which the participant has completed 25 years
of aggregate service with the employer and has attained age 55.
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 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; 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 election period.
An employee who has met the eligibility requirements to participate in the plan as provided in § 85-8A and who has not for any reason ceased to be a participant hereunder.
The Police 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 the Borough of Etna Police Pension Plan.
The committee or the individual appointed 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, 2014, 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 § 85-10D 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, which condition continues for six months and which is reasonably expected to continue to be permanent for the remainder of the participant's lifetime. For purposes of this definition and § 85-11, 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, a participant whose physical or mental impairment does not occur in the line of duty is not entitled to receive disability benefits under the plan. Total and permanent disability shall not include any condition which is intentionally self-inflicted or is the result of the participant's criminal activity or substance abuse.
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 this plan.
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.
Recordkeeping. The employer shall furnish the plan administrator
with such information as will aid the plan 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.
participant contributions. Each participant shall as a requirement
of participation pay regular contributions to the pension fund in
an amount equal to between 5% and 8%. Each participant shall complete
the necessary forms to authorize the payment of participant contributions
by way of payroll deduction.
B.
Reduction of participant contributions. Notwithstanding the preceding § 85-9A, payments into the pension fund by participants may be reduced below the minimum percentages prescribed in § 85-9A, 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, by ordinance or resolution, reduce or eliminate payments into the pension fund by participants.
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 from the commonwealth
in accordance with the Act, 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.
F.
Employer reversion. 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 and the contribution is returned within one year of the date on which the discovery of the mistaken payment of the contribution was made or reasonably should have been made or the plan is terminated, as provided in § 85-16.
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 § 85-10A shall receive a benefit paid monthly in an amount equal to 50% of the participant's final monthly average salary 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 § 85-10A 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 § 85-10B on the basis of the final monthly average salary as of such participant's actual retirement date.
D.
Service increment benefit. 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 benefit 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 § 85-10D shall only include periods of time when the participant actively renders service in employment and shall not include any period of time during which the participant received a disability benefit or was not otherwise in active employment. Such service increment benefit shall be an amount equal to $100 and shall be paid monthly in addition to the amount of normal retirement benefit calculated pursuant to § 85-10B hereof.
E.
Cost-of-living adjustments. participants who shall retire and receive a retirement benefit determined pursuant to § 85-10B hereunder shall be entitled to receive a cost-of-living adjustment to the amount of benefit payable to such participant under § 85-10B, effective as of each anniversary date of the original commencement of the participant's retirement benefit payments hereunder. Such cost-of-living adjustment shall be equal to the percentage change in the Consumer Price Index (CPI-W) during the previous year times the benefit currently being received by the participant, exclusive of service increment, if any. The following limits shall apply:
(1)
The total of all increases shall not exceed the percentage increase
in the Consumer Price Index (CPI-W) for 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 salary.
(3)
The total cost-of-living increase shall not exceed 30% of the participant's
retirement benefit under this plan.
(4)
The cost-of-living adjustment shall not impair the actuarial soundness
of the pension fund.
F.
Special ad hoc post-retirement adjustment. Any participant who retired
or was disabled prior to January 1, 1996, shall be entitled to receive
a special ad hoc post-retirement adjustment, effective July 1, 2002,
equal to the following formula:
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($0.15 x years of service x years retired) multiplied by
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[(2.5% x years retired up to 25) + (7.5% x years retired over
25)]
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The amount of the special ad hoc post-retirement adjustment
shall be reduced annually by 65% of the total amount of any post-retirement
adjustments provided to the retiree after December 31, 1988, and before
December 31, 2001, and paid in the immediately preceding year.
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G.
Payment of benefits. Retirement benefit payments shall be made in
the normal form which 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.
H.
Maximum benefit limitations.
(1)
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 section shall be governed
by the following conditions and definitions:
(a)
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;
(b)
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 in accordance with applicable regulations
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 as a
full-time employee of a police or fire department or as a member of
the Armed Forces of the United States is taken into account in determining
the amount of benefit), the limitation contained herein shall not
apply;
(c)
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 herein commencing at age 65;
(d)
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 or a survivor benefit hereunder (if applicable), with fewer than 10 years of participation, the limitation expressed in this Subsection H(1)(d) 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;
(e)
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;
(f)
In the case of a survivor benefit under § 85-12B or a disability retirement benefit under § 85-11B hereunder (if applicable), the adjustment under Subsection H(1)(b) and (e) hereof shall not apply, and the applicable limitation shall be the limitation contained herein without regard to the age or years of service or participation of the benefit recipient;
(g)
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 Section 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
(h)
Effective as of January 1, 2008, for the purpose of Code Section
415(b)(1)(A), the "applicable mortality table" and "applicable interest
rate" are found in Rev. Rul. 2007-67.
(2)
Incorporation of Code Section 415 by reference. Notwithstanding anything
contained in this section to the contrary, the limitations, adjustments,
and other requirements prescribed in this section 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. Effective for limitation
years beginning on and after July 1, 2007, the plan shall comply with
the final regulations issued under Code Section 415.
I.
Required distributions.
(1)
Notwithstanding any other provision of this plan, the entire benefit
of any participant who becomes entitled to benefits prior to his 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).
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If a participant who is entitled to benefits under this plan dies prior to the date when his entire interest has been distributed to him after distribution of his benefits has begun in accordance with Subsection I(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 I(1)(b) as of the date of his death.
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(2)
If a participant who is entitled to benefits under this plan dies
before distribution of his 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 70 1/2; and further provided,
if the surviving spouse dies before the distributions to such spouse
begin, this subparagraph shall be applied as if the surviving spouse
were the employee.
(3)
For purposes of this section, 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's reaching majority (or
other designated event permitted under regulations issued by the Secretary
of the Treasury).
(d)
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.
(4)
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.
J.
Assignment. The pension benefit payments prescribed herein shall
not be subject to attachment, execution, levy, garnishment or other
legal process and 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.
K.
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.
L.
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.
M.
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 or the provisions of applicable
law. A participant's election, failure to make an election or
revocation of an election hereunder shall be final and binding on
all persons.
N.
Nonduplication of benefit. To avoid any duplication of benefits,
a participant who is receiving a retirement benefit under the 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 final monthly average
salary and aggregate service as of the date that such period of resumed
employment shall cease.
O.
Direct rollovers.
(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 O(2)(b) 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 O(2)(a)
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.
(3)
DIRECT ROLLOVER
(a)
(b)
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.
Effective January 1, 2008, direct rollovers may be made to a
Roth IRA described in Section 408A of the Internal Revenue Code to
the extent that the applicable requirements of Code Section 408A are
satisfied with respect to any direct rollover to such Roth IRA.
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 includible 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 includible 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 includible
in gross income and the portion of such distribution which is not
so includible.
(4)
This section applies to distributions made on or after January 1,
2010. Notwithstanding any provision of the plan to the contrary that
would otherwise limit a nonspouse beneficiary's election under
this section, a nonspouse beneficiary may elect to have any portion
of a plan distribution (that is payable to such nonspouse beneficiary
due to a participant's death) paid in a direct trustee-to-trustee
transfer to an individual retirement account described in Code Section
408(a) or to an individual retirement annuity described in Section
408(b) (other than an endowment contract) that has been established
for the purposes of receiving the distribution on behalf of such nonspouse
beneficiary. For these purposes, a "nonspouse beneficiary" is an individual
who is a designated beneficiary (as defined by Section 401(a)(9)(E)
of the Internal Revenue Code) of a participant and who is not the
surviving spouse of such participant.
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 benefits. A participant who retires due to a total and permanent disability, pursuant to § 85-11A shall be eligible for a disability retirement benefit equal to 50% of the member's salary at the time the disability was incurred, provided that any member who receives benefits for the same injuries under social security disability shall have the participant's disability benefits offset or reduced by the amount of such benefits. The amount of the monthly disability benefit (before social security offset) shall be no less than 50% of the participant's salary at the time the disability occurs.
C.
Payment of disability benefits.
(1)
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 participant's disability date
and continuing until the earliest of the death of the participant,
cessation of total and permanent disability, or attainment of normal
retirement age (such a participant upon attainment of normal retirement
age shall thereafter receive a normal retirement benefit under the
terms of the plan).
(2)
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, and shall not be entitled to any distribution of accumulated contributions pursuant to § 85-13B to the extent that the total amount of disability payments exceeds the value of the participant's accumulated contributions 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 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 which may cause a cessation of entitlement
to receipt of such benefits hereunder. If a participant fails to provide
immediate notice to the plan administrator of any such change in status
and continues to receive 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 accordance with the following sections of this § 85-12.
B.
Survivor benefit. If a participant shall die after commencement of
benefit payments or after becoming eligible to receive benefit payments,
a survivor benefit shall be paid to the surviving spouse, if any,
of the participant in an amount equal to 50% of the benefit the participant
was receiving or was eligible to receive as of the date of death.
The survivor benefit shall
be paid to the surviving spouse until the date of death of the surviving
spouse. Upon the death of the surviving spouse, the survivor benefit
shall be paid monthly in equal shares to the surviving dependent children
of the deceased participant until attainment of age 18 or, if attending
college, under or attaining the age of 23.
C.
Payment of survivor benefit. The survivor benefit commences as of
the first day of the month coincident with or immediately following
the date of death of the participant. 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 who have not attained 18 years of age,
or if attending college, under or attaining the age of 23. 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 § 85-12B, 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.
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 Section 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.
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 section of this article.
B.
Distribution of accumulated contributions. A participant or beneficiary
of a participant, whose employment with the employer shall terminate
for any reason, including the death of the participant 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 vested benefit. A participant who has completed at least 12 years of aggregate service and whose employment with the employer shall terminate for any reason other than death or 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 § 85-13B. Such a deferred vested benefit shall be in an amount equal to the participant's accrued benefit as of the date employment terminates and shall commence after application pursuant to § 85-10G 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. Any election made under this § 85-13C must be made in a writing acceptable to the plan administrator within 90 days of the date which was the last day of employment. If no election is made hereunder within the applicable election period the participant shall be deemed to have forever waived this election and shall receive a distribution of accumulated contributions pursuant to § 85-13B hereof.
D.
Forfeiture. To the extent permissible under the Code, rights under
this plan shall be subject to forfeiture pursuant to the act of July
8, 1978 (P.L. 752, No. 140), known as the "Public Employee Pension
Forfeiture Act," 43 P.S. § 1311 et seq.
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 appointed
by the Council. Each member of the Committee shall serve in that capacity
until the earliest of resignation, death, and removal or otherwise.
The Council may remove each member at any time, with or without cause.
Each member may resign by delivering written notice to the Council
and other members of the Committee. Vacancies on the Committee shall
be filled by the Council.
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;
(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; and
(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,
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 (i) the specific plan provisions on which the denial
is based, (ii) 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 (iii) 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.
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.
(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 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.
(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
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.
(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 unless the employer is applying or has applied for supplemental
state assistance pursuant to Section 603 of the Act, whereupon actuarial
valuation reports shall be made annually.
(2)
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.
(3)
Such actuarial valuation shall be prepared and certified by an approved
actuary, as such term is defined in the Act.
(4)
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:
(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 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.
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.
Plan not a contract of employment. No police officer 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. Nothing herein shall be construed to give
any police officer the right to remain on the police force of the
employer.
B.
Masculine/feminine; singular/plural. For purposes of this plan, the
masculine shall be read for the feminine and the singular shall be
read for the plural, wherever the person or context shall plainly
so require.
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.
Headings. The headings of articles 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.
E.
Severability of provisions. In case any provisions of this plan shall
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 therein.
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 him, may provide
for such payment of pension benefits hereunder to such person or institution
so maintaining him, and any such payments so made shall be deemed
for every purpose to have been made to such participant.
G.
Liability of officers of the plan administrator and/or employer.
Subject to the provisions of the Act and unless otherwise specifically
required by other applicable laws, no past, present or future officer
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.
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.
K.
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 is no 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.
L.
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.
