[Adopted 7-16-2014 by Ord. No. 547,[1] approved 7-16-2014]
The following words and phrases, as used in this Plan, shall
have the meaning set forth in this article, unless a different meaning
is otherwise clearly required by the context:
As of any given date, the benefit determined under § 30-14B 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 one. The accrued benefit shall include any service increment determined pursuant to § 30-14D 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 § 30-14G. 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 4% per annum. Interest shall be credited in the form of a simple 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 that a distribution of accumulated contributions under §§ 30-16C and 30-17B 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 with male rates set
back six years for females and 7.25% 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."
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 § 30-18B.
The Commonwealth of Pennsylvania.
The total compensation of the employee, whether salary or
hourly wages, including overtime pay, holiday pay, longevity pay and
any other form of compensation 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).
The Borough Council of the Borough of Conway.
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.
The Borough of Conway, Beaver 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 benefit 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
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.
"Employment" shall not mean for the purpose of determining aggregate
service any period of disability for a participant who was disabled
as a result of a nonservice-related disability.
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 but shall exclude for this purpose any single sum or extraordinary
payments made which are not directly attributable to active employment
during the averaging period, including but not limited to payment
for accumulated sick leave, payment of a longevity bonus, or payment
of a back pay damage award.
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 definition. Therefore, for example,
the final monthly average salary for a participant who receives disability
benefits from this Plan or 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 subsection) from the
employer.
Salary used to determine final monthly average salary 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).
A legal reserve life insurance company authorized to do business
in the Commonwealth of Pennsylvania.
The fixed, periodic payment for the final completed month
of active employment during the year the disability occurred.
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 50.
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 or election period.
An employee who has met the eligibility requirements to participate in the Plan as provided in § 30-12A 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 Conway 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 § 30-14D on behalf of a participant for each year of aggregate service completed by the participant 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 at least 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 § 30-15, 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 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 first day of the month coincident
with or next following 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 5% of the participant's compensation unless
some other amount has been agreed to through the course of collective
bargaining. For 2014, each participant shall as a requirement of participation
pay regular contributions to the pension fund in an amount equal to
2.75% of the participant's compensation. Each participant shall
complete the necessary forms to authorize the payment of participant
contributions by way of payroll deduction. The employee contributions
are subject to the Code Section 415(c) annual additions limitations,
as set forth in Treas. Reg. Section 1.415(c)-1.
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, 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 in accordance with the
Act from the commonwealth may be deposited into the pension fund governed
by this Plan in amounts determined by 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 § 30-19.1.
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 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 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 salary as of such participant's actual retirement date.
D.
Service increment. Notwithstanding anything contained herein to the contrary, each participant who shall retire upon completion of the 26th anniversary of aggregate service or thereafter, may be entitled to receive a monthly service increment benefit in an amount equal to $100 per month. 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 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 under the terms of this Plan or was not otherwise in active employment. Such service increment shall be paid monthly in addition to the amount of normal retirement benefit calculated pursuant to Subsection B.
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.
Cost-of-living adjustments. Each participant who shall retire and receive a retirement benefit determined pursuant to Subsection B hereunder shall be entitled to receive a cost-of-living adjustment to the amount of benefit payable to such participant under Subsection B and not to the amount of service increment benefit payable to such participant under Subsection D effective as of each January 1 following the participant's retirement. Such cost-of-living adjustment shall be the lesser of 4% or the percentage increase in the consumer price index for urban wage earners and clerical workers (CPI-W) times the amount of benefit exclusive of the service increment, and shall not exceed the following limits:
(1)
The total amount of increases shall not exceed the percentage increase
in the CPI-W 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 salary;
(3)
The total cost-of-living increase 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.
G.
Maximum benefit limitations. Notwithstanding any provision of this
Plan to the contrary, no benefit provided under this Plan attributable
to contributions of the employer shall exceed, as an annual amount,
the amount specified in Code Section 415(b)(1)(A) as adjusted pursuant
to Code Section 415(d), assuming the form of benefit shall be a straight
life annuity (with no ancillary benefits). The limitations described
in this subsection shall be governed by the following conditions and
definitions:
(1)
Benefits paid or payable in a form other than a straight life annuity
(with no ancillary benefits) or where the employee contributes to
the Plan or makes rollover contributions shall be adjusted on an actuarially
equivalent basis in accordance with applicable regulations to determine
the limitation contained herein;
(2)
In the case of a benefit which commences prior to the attainment
of age 62 by the participant, the limitation herein shall be adjusted
on an actuarially equivalent basis to the amount determined pursuant
to this section commencing at age 62; however, in the case of a qualified
participant (a participant with respect to whom a period of at least
15 years of service, including applicable military service, as a full-time
employee of a Police or Fire Department is taken into account in determining
the amount of benefit), the limitation contained herein shall not
apply;
(3)
In the case of a benefit which commences after attainment of age
65 by the Participant, the limitation herein shall be adjusted on
an actuarially equivalent basis in accordance with applicable regulations
to the amount determined commencing at age 65;
(4)
Benefits paid to a participant which total less than $10,000 from all defined benefit plans maintained by the employer expressed as an annual benefit shall be deemed not to exceed the limitation of this subsection 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 § 30-15B or a survivor benefit pursuant to § 30-16B, with fewer than 10 years of participation the limitation expressed in this Subsection G(4) shall be reduced by 1/10 for each year of participation less than 10 but in no event shall this limitation be less than $1,000;
(5)
The limitations expressed herein shall be based upon plan years for
calculation purposes, shall be applied to all defined benefit plans
maintained by the employer as one defined benefit plan and to all
defined contribution plans maintained by the employer as one defined
contribution plan, and shall be applied and interpreted consistent
with Code Section 415 and regulations thereunder as applicable to
government plans in general and this Plan in particular;
(7)
For mandatory employee contributions, the rules set forth in Treasury
Regulation 1.415(b)-1(b)(2)(iii) shall apply; and
(8)
Effective for distributions with annuity starting dates beginning
on or after December 31, 2008, notwithstanding any other Plan provisions
to the contrary, the applicable mortality table used solely for purposes
of adjusting any benefit or limitation under 415(b)(2)(B), (C), or
(D) of the Internal Revenue Code as set forth in the applicable maximum
benefit limitations section of the Plan is the applicable mortality
table under Code Section 417(e)(3)(B).
H.
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).
(c)
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 H(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 H(1)(b) as of the date of his death.
(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 subsection 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 Subsection H will take precedence over any inconsistent provisions of the Plan. All distributions required under this Subsection H 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.
I.
Assignment. The pension benefit payments prescribed herein shall
not be subject to attachment, execution, levy, garnishment or other
legal process and shall be payable only to the participant or designated
beneficiary and shall not be subject to assignment or transfer unless
the subject of a domestic relations order, mandated by a court of
competent jurisdiction, that clearly provides for proper distribution
of a portion of the pension benefit payments to an alternate payee
(former spouse of the participant) and does not require any benefit
to be paid in excess of the available earned and accrued under the
Plan.
J.
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.
K.
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.
L.
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.
M.
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 or resumed
employment shall cease.
N.
Direct rollovers.
(1)
This Subsection N(1) applies to distributions made on or after December 31, 2001. 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 that is equal to at least $500 paid directly to an eligible retirement plan specified by the distributee in a direct rollover.
(2)
This Subsection N(2) shall apply to distributions made on or after January 1, 2006. Notwithstanding any provision 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 N(1) and does not elect to receive the distribution directly, the Plan Administrator shall make such transfer to an individual retirement plan of a designated trustee or issuer pursuant to § 30-18C(9). 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)
For purposes of this section, the following definitions shall apply:
(a)
Eligible rollover distribution.
[1]
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).
[2]
For purposes of the direct rollover provisions in this section
of the Plan, a portion of the 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 only be paid 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 which is not includible.
(b)
"Eligible retirement plan" is 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
deferred compensation plan described in Code Section 457(b), which
is maintained by a state, political subdivision of a state, and any
agency or instrumentality of a state or a political subdivision of
a state and which agrees to separately account for amounts transferred
into such plan from this plan.
(c)
"Distributee" includes an employee or former employee. In addition,
the employee's or former employee's surviving spouse and
the employee's or former employee'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.
(d)
"Direct rollover" is 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.
(e)
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.
(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 § 30-15A shall be eligible for a disability retirement benefit equal to 50% of the member's salary at the time the disability was incurred determined as of the disability date, 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.
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 who attains normal retirement age shall thereafter receive a normal retirement benefit pursuant to § 30-14B).
(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, shall not be entitled to any distribution of accumulated contributions pursuant to § 30-17B to the extent that the total amount of disability payments exceeds the value of the participant's accumulated contributions as of the disability date, 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 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 accord with the following sections
of this section.
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.
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 § 30-16B, the surviving spouse of the participant shall be eligible to receive a distribution in an amount equal to the accumulated contributions of the participant as of the date of death of the participant. If the participant's surviving spouse dies before the distribution or if there is no surviving spouse, the deceased participant's surviving dependent child(ren) until attainment of age 18 or if attending college, under or attaining the age of 23, shall be entitled to receive a distribution in an amount equal to the accumulated contributions of the participant as of the date of death of the participant, unless the participant had designated another beneficiary for this purpose. If the participant has received disability retirement benefits hereunder, the amount of the distribution of accumulated contributions shall be reduced by the amount of disability retirement benefits, which have been paid hereunder.
D.
Act 51 killed in service survivor benefit. In the event of the death
of a participant who is killed in service, survivor benefits shall
consist of those benefits paid, outside of this Plan, by the commonwealth
under Act 51 of 2009.
E.
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 child(ren)
of the deceased participant under the age of 18 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.
F.
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 sections of this article.
B.
Distribution of accumulated contributions. A participant whose employment
with the employer shall terminate for any reason other than death
or total and permanent disability prior to attainment of normal retirement
age shall be entitled to receive a distribution of accumulated contributions.
Upon receipt of such accumulated contributions, said participant and
beneficiary shall not be entitled to any further payments from the
Plan.
C.
Deferred retirement benefit. A participant who shall have completed at least 12 years of aggregate service and whose employment shall terminate for any reason other than due to death or total and permanent disability prior to attainment of normal retirement age shall be entitled to elect to receive a deferred retirement benefit in lieu of a distribution of accumulated contributions under § 30-17B. Such a deferred retirement benefit shall be equal to the participant's accrued benefit as of the date employment terminates and shall commence after application pursuant to § 30-14H and not earlier than the date which would be the participant's normal retirement date or early retirement date under the Plan if the participant remained in employment until such date.
D.
Forfeiture. Rights under this Plan shall be subject to forfeiture
as provided by the Act of July 8, 1978 (P.L. 752, No. 140), known
as the "Public Employee Pension Forfeiture Act."
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 review 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. Each member
of the Committee shall serve in that capacity until death, resignation,
removal or otherwise. 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;
(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,
the enrolled actuary, nor any other person involved in the administration
of the Plan (other than any person, bank, firm or corporation which
is independent of the employer and which renders services to the Plan
for a fee) 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.
(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 of the Plan 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.
(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
in accordance with Chapter 73 of the Pennsylvania Probate Estates
and Fiduciaries Code, 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
in accordance with Chapter 73 of the Pennsylvania Probate Estates
and Fiduciaries Code, 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.
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.
A.
DROP
DROP PARTICIPANT
DROP PARTICIPANT ACCOUNT
NORMAL RETIREMENT BENEFIT
Definitions. The following words and phrases when used in this section
shall have the meanings given to them in this section only, unless
the context clearly indicates otherwise.
A deferred retirement option plan established as an optional
form of benefit under the Plan and being operated by the Borough of
Conway.
The separate, interest-bearing, subsidiary DROP participant account established for a DROP participant under Subsection E(1).
The retirement benefit payable to a participant of a defined
benefit pension plan at the point in time when the participant satisfies
the age and service requirements for full, unreduced retirement benefits.
B.
Eligibility and participation.
(1)
Eligibility of employee to participate in DROP. An employee
who is eligible for a normal retirement benefit under the pension
plan or will be eligible for a normal retirement benefit under the
pension plan prior to participation in the DROP is eligible to participate
in the DROP by filing a written application with the Retirement Plan
Administrator at least 30 days before the employee's effective
date of retirement.
(2)
Participation in DROP. An eligible participant may elect to
participate in this DROP for a period not to exceed five years. Upon
deciding to participate in a DROP, a participant must submit, on forms
provided by the Borough, all of the following:
[Amended 1-18-2017 by Ord. No. 557, approved 1-18-2017]
(a)
A binding and irrevocable letter of resignation from regular
employment with the Borough of Conway which discloses the participant's
intent to retire and specifies the participant's retirement date.
(b)
An irrevocable written election to participate in the DROP which must specify the effective date of DROP participation that shall be one day after the participant's specified retirement date, specify the DROP termination date which satisfies the limitation in Subsection B(4), detail a DROP participant's rights and obligations under the DROP and include an agreement to forgo:
(c)
The DROP participant shall be required to provide any other
information required by the Borough.
(3)
Eligibility for disability. If a DROP participant becomes eligible for a disability benefit, as specified in § 30-15B, and terminates employment, the monthly normal retirement benefit of the DROP participant shall terminate.
(4)
Effective dates of DROP participation. A retired participant's
effective date of participation in a DROP shall begin on the day following
the effective date of the participant's regular retirement and
a retired participant's participation in a DROP shall end on
the last day of the participation period specified in the ordinance
establishing the DROP based on the effective date of the retired participant's
participation in the DROP.
(5)
DROP participation termination. A DROP participant may change the DROP termination date to an earlier date within the limitations of Subsection B(2), but may not change it to a later date than elected at the time of initial DROP participation. No penalty shall be imposed for early termination of DROP participation. Upon either early or regular termination of DROP participation, the DROP participant shall be separated from employment with the Borough of Conway and the Plan shall pay the balance in the DROP participant account to the terminating participant as provided in Subsection C(3). The DROP participant shall be ineligible to re-enroll in the DROP thereafter even if the former DROP participant is re-employed by the Borough of Conway with renewed active membership in the Borough of Conway Police Pension Plan.
(6)
DROP participant contributions. DROP participants shall neither
be required nor permitted to pay contributions into the Plan during
the DROP participation period.
C.
Drop benefits.
(1)
Fixed retirement benefits, retirement date and DROP dates. Effective with the date of retirement, which must be the day before the effective date of DROP participation, the participant's monthly, normal retirement benefit as calculated under § 30-14B of the Plan, the participant's effective date of retirement and the participant's effective dates of beginning and terminating participation in the DROP shall be fixed. There shall be no further retirement benefit accruals after the participant's effective date of retirement.
(2)
Normal retirement benefit payments and accruals. The retired participant's monthly retirement benefit, cost-of-living adjustments pursuant to § 30-14F and interest on that benefit compounded and credited monthly shall be credited to the DROP participant account in the pension trust fund. Interest shall be credited on the existing account balance in the DROP participant account as of the first day of the month coincident with or following the participant's retirement date. The participant's monthly retirement benefit shall be credited to the account after the interest has been credited to the existing account balance in the DROP participant account. The participant's retirement benefit and interest on that benefit shall continue to accrue in this manner on the first day of each month thereafter during the participant's DROP participation. A separate accounting of the DROP participant's accrued benefit accumulation under the DROP shall be calculated annually and provided to the participant.
(3)
Payment of DROP benefits. On the effective date of a DROP participant's
termination of employment with the Borough as a DROP participant,
participation in the DROP shall cease; and the Plan shall calculate
and pay to the participant the participant's total accumulated
DROP benefits in the DROP participant account subject to the following
provisions:
(a)
The terminating DROP participant or, if the participant is deceased,
the participant's named beneficiary shall elect on a form provided
by the Plan Administrator to receive payment of the DROP benefits
in accordance with one of the following options:
[1]
The balance in the DROP participant account, less withholding
taxes, if any, remitted to the Internal Revenue Service, shall be
paid within 45 days of the receipt of the election form, by the Plan
from the account to the DROP participant or surviving beneficiary.
[2]
The balance in the DROP participant account shall be paid within
45 days of the receipt of the election form, by the Plan from the
account directly to the custodian of an eligible retirement plan as
defined in Section 402(c)(8)(B) of the Internal Revenue Code of 1986
or, in the case of an eligible rollover distribution to the surviving
spouse of a deceased participant to an eligible retirement plan which
is an individual retirement account or an individual retirement annuity
as described in Section 402(c)(9) of the Internal Revenue Code of
1986.
[3]
If the DROP participant or beneficiary fails to elect a method of payment within 60 days after the participant's termination date, the Plan shall pay the balance directly to the custodian of an eligible retirement plan as provided in Subsection C(3)(a)[2].
[4]
The form of payment selected by the DROP participant or surviving
beneficiary shall comply with the minimum distribution requirements
of the Internal Revenue Code of 1986.
(b)
The terminating DROP participant shall commence receipt of the
monthly retirement benefit directly starting with the first day of
the month coincident with or next following termination of employment
with the Borough.
(c)
The monthly retirement benefits that would have been payable
had the DROP participant elected to cease employment and receive a
normal retirement benefit or late retirement benefit shall, upon the
DROP participant commencing participation in the DROP program, be
credited on the first day of each month into a separate ledger account
established by the Plan Administrator to track and accumulate the
participant's DROP benefits. This account shall be designated
the DROP account. The DROP account shall not contain a guaranteed
interest rate but shall be credited with interest at the actual rate
earned by the pension fund but shall not be less than 0% nor greater
than 4.5%, and shall be compounded monthly. All earnings or losses
credited to the DROP account will be included in the final cash settlement.
(d)
The DROP shall at all times comply with the annual benefit limitations
of Code Section 415 and the regulations thereto.
(4)
Pre-retirement benefits. Except for those benefits specified in Subsection B(2)(b) as forgone by the member, a DROP participant shall be eligible for any employee benefits provided to active employees before retirement by the Borough of Conway and those otherwise provided by law, including but not limited to, benefits under the act of June 2, 1915 (P.L. 736, No. 338), known as the "Workers' Compensation Act"; the Act of June 28, 1935 (P.L. 477, No. 193), referred to as the "Enforcement Officer Disability Benefits Law"; the Act of December 5, 1936 (2nd Sp. Sess., 1937 P.L. 2897, No. 1), known as the "Unemployment Compensation Law"; the Act of June 24, 1976 (P.L. 424, No. 101), referred to as the "Emergency and Law Enforcement Personnel Death Benefits Act"; and the Public Safety Officers' Benefit Act of 1976 (Public Law 94-430, 42 U.S.C. § 90 stat. 1347).
D.
DROP death benefits.
(1)
DROP benefits for designated beneficiary. If a DROP participant dies, the participant's designated beneficiary shall be entitled to apply for and receive the benefits accrued in the DROP participant account as provided in Subsection C(3).
(2)
Final credited monthly retirement benefit. The monthly retirement
benefit accrued in the DROP participant's DROP participant account
during the month of a DROP participant's death shall be the final
monthly retirement benefit credited for DROP participation.
(3)
DROP eligibility terminates upon participant's death. A
DROP participant's eligibility to participate in the DROP terminates
upon the death of the DROP participant. If a DROP participant dies
on or after the effective date of participation in the DROP but before
the initial monthly retirement benefit of the participant accruable
for the month has accrued in the DROP participant account, the Borough
of Conway shall pay the monthly retirement benefit as though the participant
had not elected DROP participation and had died after the employee's
effective date of retirement but before receipt of the retired participant's
first normal retirement benefit.
(4)
Survivors ineligible for active employee's death benefit.
The survivors of a DROP participant who dies shall not be eligible
to receive retirement death benefits payable in the event of the death
of an active employee.
E.
Administrative provisions.
(1)
Subsequent employment and renewal of active membership. After both the termination of the participant's employment as a DROP participant with the Borough of Conway and the expiration of the DROP participation period, a former DROP participant shall be subject to such re-employment limitations as other retired employees and shall be eligible for renewed membership as an active participant in the Plan and the DROP participant shall be ineligible to re-enroll in the DROP pursuant to Subsection B(5).
(2)
DROP participant account.
(a)
As the Borough of Conway establishes a DROP, it shall establish
a DROP participant account as a separate interest-bearing, ledger
account in its pension trust fund for each DROP participant. The account
balance shall be accounted for separately but need not be physically
segregated from other pension trust fund assets. A separate, interest-bearing,
subsidiary DROP participant account shall be established for each
DROP participant.
(b)
While a retired participant is employed as a DROP participant, the participant's monthly retirement benefit and interest on that benefit shall be credited to the DROP participant account under Subsection C(2). The interest shall be compounded and credited monthly. When a DROP participant terminates employment with the Borough of Conway as a DROP participant, the participant's total accumulated benefits shall be calculated, charged to the DROP participant account and paid out of the pension trust fund under Subsection C(3).
(c)
The balance in the DROP participant's account shall be excluded from actuarial valuation reports of the Plan prepared and filed under this legislation. The DROP participant's account shall be held for the exclusive benefit of DROP retired participants who are or were DROP participants and for the beneficiaries of these participants or an alternate payee pursuant to Subsection C(3).
