[HISTORY: Adopted by the Borough Council
of the Borough of Evans City as indicated in article histories. Amendments
noted where applicable.]
[Adopted 12-7-1998 by Ord. No. 481[2]]
[Amended 11-1-2010 by Ord. No. 541]
Pursuant to Act 600 of 1956, as amended, there
is hereby established the Borough of Evans City Police Pension Plan,
hereinafter referred to as the "plan."
The plan is to be maintained by the following: a charge against all police officer employees who hold a full-time position in the Police Department of the Borough of Evans City and who work an average of not less than 40 hours per week (as set forth in § 18-6B hereof); by payments made to the Borough of Evans City, Butler County, Commonwealth of Pennsylvania, for the purpose of retirement or disability pensions for police employees under any present or future law providing therefor; by such appropriations thereto as may be lawfully made by the Commission, by gifts, grants and bequests received by the plan and by receipts from investment of the plan. The plan shall be under the direction of the Evans City Borough Council under such regulations as it may from time to time, by resolution prescribe for the benefit of such police employees of the Borough as shall receive an honorable discharge therefrom by reason of age and service or service disability. The pension allowed to those who are retired by reason of service-related disabilities shall be in conformity with a uniform scale.
A.
The Evans City Borough Police Pension Plan shall be
managed and administered by the Police Pension Board.
(1)
The Police Pension Board shall consist of three members:
a member of the Evans City Borough Council, the Chief of Police and
a full-time police officer employee who is a participant of the plan.
All members of the Police Pension Board shall be appointed by the
Evans City Borough Council.
(2)
The Police Pension Board may appoint from its members
such committees with such powers as it shall determine, and may adopt
such rules and regulations as may be necessary or appropriate for
the conduct of the business of the Police Pension Board, subject to
the approval thereof by the Evans City Borough Council.
B.
The Evans City Borough Secretary/Manager shall be
the Chief Administrative Officer (CAO) of the plan and shall have
primary responsibility for the administration of the pension plan.
The duties of the CAO shall be as follows:
(1)
Supervise and direct the preparation of actuarial
reports.
(2)
Certify and file actuarial valuations reports with
the Public Employee Retirement Commission.
(3)
Make actuarial report information available to plan
members.
(4)
Annually determine and submit to the Evans City Borough
Council the financial requirements of the pension plan and minimum
municipal obligation.
(5)
Provide the Evans City Borough Council with a cost
estimate of the effect of any proposed benefit plan modification.
A.
The Evans City Borough Council and the Evans City
Chief of Police shall act as trustees of the plan.
B.
The Evans City Borough Treasurer shall forthwith remit
to the trustees all funds received for the purposes of the plan or
appropriated thereto by Evans City Borough with memorandum as to the
source thereof and shall secure its receipt thereof. The trustees
shall receive the same and invest any funds not currently required
for disbursement in the same manner and in the same kinds of securities
as are authorized by law for banks chartered by the Commonwealth of
Pennsylvania.
C.
The trustees shall pay benefits out of the plan only
at such times, to such persons and in such amounts as may be certified
to them by the Secretary of the Police Pension Board at the direction
of the Police Pension Board. The trustees shall annually submit to
Evans City Borough a detailed report of their administration of the
plan, which reports, when so submitted, shall be open to inspection
by any interested party.
D.
The plan is hereby authorized to receive any gift,
grant, devise or bequest of any money or other property, real, personal
or mixed, in trust for the benefit of the plan, and the care, management,
investment and disposal of such trust funds of property shall be vested
in the trustees having the management of the plan and said trust funds
or property shall be administered in accordance with the regulations
governing the plan subject to such directions not inconsistent therewith
as the donors of such funds or property may prescribe.
E.
The trustees shall be bonded in such amounts as shall
be determined by Evans City Borough.
Each police officer employee who is holding
a full-time position in the Police Department and who works not less
than an average of 40 hours per week for a stated salary or compensation
shall become a participant of the plan.
A.
The Evans City Borough Council agrees to contribute
to the trustees an amount equal to the Act 205 aid received by Evans
City Borough from the moneys received from taxes paid upon premiums
by foreign casualty insurance companies for purposes of pension, retirement
or service-related disability benefits for policemen which shall be
used as follows: to reduce the unfunded liability or, after such liability
has been funded, to apply against the annual obligation of Evans City
Borough for future service and disability reserve costs. It shall
be the duty of the Commission to apply such payments in accordance
with the provisions of this section.
B.
AVERAGE MONTHLY COMPENSATION
COMPENSATION
(1)
(2)
SALARY
Definitions. As used in this article, the following
terms shall have the meanings indicated:
[Amended 10-1-2007 by Ord. No. 526[1]]
The monthly average of the last 36 months of compensation
received preceding the date of determination.
[Amended 11-1-2010 by Ord. No. 541]
Compensation reportable as wages, tips and other compensation
on Federal Form W-2 as required by §§ 6041, 6051 and
6052 of the Code,[2] excluding severance payments, accrued vacation payment,
accrued sick days payment, or similar nonrecurring compensation. Compensation
shall include only that compensation which is actually paid to the
participant during the applicable period. In addition, "compensation"
shall also mean employer contributions made pursuant to a salary reduction
agreement which are not currently includible in the participant’s
gross income by reason of the application of the Internal Revenue
Code §§ 125, 402(a), 402(h)(1)(B) or 457(a).
The annual compensation of each participant
taken into account for determining all benefits provided under the
plan for any plan year shall not exceed $150,000, as adjusted for
increases in the cost-of-living in accordance with § 401(a)(17)(B)
of the Internal Revenue Code. The cost-of-living adjustment in effect
for a calendar year applies to any determination period beginning
in such calendar year.
If a determination period consists of fewer
than 12 months, the annual compensation limit is an amount equal to
the otherwise applicable annual compensation limit multiplied by a
fraction, the numerator of which is the number of months in the short
determination period, and the denominator of which is 12.
Average monthly compensation.
A.
Normal retirement date. The normal retirement date
for a participant shall be the first day of the month following his
or her 55th birthday, provided that the participant has completed
25 years of credited service and the participant does not continue
employment with the Police Department. If a participant, after his
normal retirement date, continues employment with the Police Department,
his retirement will commence upon his giving written notice of retirement
to the Evans City Borough Council. If a participant has not completed
25 years of credited service upon attaining the age of 55, his retirement
may not commence until he has completed 25 years of credited service.
B.
Normal retirement benefit. The retirement benefit
of a participant shall be equal to 1/2 of his average monthly compensation
received during the last 36 months of employment, continuing for life
in equal monthly payments and ceasing in the month of death.
C.
Disability retirement benefit.
(1)
If a participant shall quality for a permanent and
total service-related disability benefit under the provisions of the
plan, and such service-related disability is confirmed by the Police
Pension Board, such participant shall be eligible to receive a disability
benefit from the plan.
(2)
In the event of a permanent service-related disability,
benefits shall become payable to an injured police officer in an amount
equal to 50% of the police officer’s salary at the time the
disability was incurred, provided that any police officer who receives
benefits for the same injuries under the Social Security Act (49 Stat.
620, 42 U.S.C. § 301 et seq.) shall have the disability
benefit offset or reduced by the amount of such social security benefits.
[Amended 10-1-2007 by Ord. No. 526]
(3)
"Total and permanent disability" means a physical
or mental condition of a member resulting from bodily injury or disease
or mental disorder contracted, without fault or misconduct on such
officer's part, from the performance of such officer's duties in the
Police Department, which renders the member incapable of continuing
in the employment as a police officer for the Evans City Borough.
(4)
A determination by the Evans City Borough or its designation
agent that a participant is totally and permanently disabled shall
be required for such member to receive a disability benefit under
the plan. Before making such determination, the Evans City Borough
or its designated agent shall secure the opinion of one or more practicing
physicians licensed to practice medicine in the Commonwealth of Pennsylvania.
The Evans City Borough shall have the right to require a physical
examination and a redetermination at its option.
D.
Death benefits.
[Amended 10-1-2007 by Ord. No. 526[1]]
(1)
Qualifications for death benefit.
(a)
The beneficiaries [as defined in Subsection D(4)] of a police officer shall be entitled to receive a death benefit if the police officer dies:
[1]
After he/she has begun receiving benefits under
a normal retirement benefit; or
[2]
After he/she has begun receiving disability
retirement benefits, provided that such benefits did not terminate
prior to his/her death because he/she ceased to be disabled; or
[3]
While still employed by the Borough and after
having met the age and service requirements for normal retirement;
or
[4]
Prior to commencement of any retirement benefit
under this section and was vested in his/her accrued benefit.[2]
[2]
Editor's Note: Former Subsection D(1)(b), which stated that a death benefit under this section would not be paid if the beneficiaries were entitled to receive a killed-in-service death benefit under Subsection D(3), and which immediately followed this subsection, was repealed 11-1-2010 by Ord. No. 541.
(2)
Death benefit form and amount of payments. The death
benefit shall be paid in a series of monthly payments:
(a)
Beginning on the first day of the month following the month of the police officer’s death under the conditions described in Subsection D(1)(a)[1], [2] or [3]; or
(b)
Beginning on the first day of the month following the expected normal retirement date of the deceased police officer and described in Subsection D(1)(a)[4]; and
(c)
Continuing on the first day of each succeeding month
until there is no person who qualifies as a beneficiary; and
(d)
In a monthly amount equal to:
[1]
Fifty percent of the monthly amount being received by the police officer at the time of his/her death, or would have been receiving had the police officer been retired at the date of death, described in Subsection D(1)(a)[1], [2] or [3]; or
[2]
Fifty percent of the monthly vested accrued amount the police officer would have been entitled to receive described in Subsection D(1)(a)[4].[3]
[3]
Editor's Note: Former Subsection D(3), Killed-in-service
death benefit, which immediately followed this subsection, was repealed
11-1-2010 by Ord. No. 541.
(3)
Beneficiaries.
(a)
For purposes of the death benefit, the beneficiary
of a police officer shall be his/her spouse. If there is no spouse
or if the spouse survives and subsequently dies, then the death benefit
shall be payable to the police officer’s child or children who
have not yet attained age 18 (or are attending college and have not
yet attained age 23). For purposes of this subsection, a person is
“attending college” if he/she is registered at an accredited
institution of higher learning and is carrying a minimum course load
of seven credit hours per semester. The death benefit shall be payable
to eligible children in equal shares.
[Amended 11-1-2010 by Ord. No. 541]
(b)
For purposes of the death benefit return of contributions in Subsection D(4), the beneficiaries shall be the spouse and eligible children as above. In the case where there is not a spouse or eligible children, the participant may designate the beneficiary to whom the death benefit return of contributions shall be paid.
(4)
Death benefit return of accumulated contributions.
(a)
In general. If a police officer dies at a time when
his/her beneficiaries are not eligible to receive a death benefit
or he/she has no beneficiaries, and he/she has not received any payments
under a normal retirement benefit, disability retirement benefit,
or vested benefit, then the plan shall distribute an amount equal
to the amount of the police officer’s accumulated contributions
plus interest at the rate of 5% per annum to the police officer’s
named beneficiaries. If the police officer failed to designate a beneficiary
or if no designated beneficiary shall have survived the police officer,
the distribution shall be made to the estate of the police officer.
[Amended 11-1-2010 by Ord. No. 541]
(5)
No other death benefits. Except as provided in this
section, no police officer or former police officer and no estate,
heir, or beneficiary of any police officer or former police officer
shall receive any payment or benefit under this plan or from the trust
due to the death of a police officer or former police officer.
E.
Accrued benefit and vested benefit.
(1)
Accrued benefit. A member's accrued benefit as of any applicable date will be equal to the product obtained by multiplying the normal retirement benefit determined in accordance with Subsection B, above, using average monthly compensation as of the date employment terminated by a fraction, the numerator of which is the years of service to the date employment terminated and the denominator of which is the total years of service the member would have earned if the member continued to work to the normal retirement date.
(2)
Vested benefit. A member who terminates employment
with Evans City Borough prior to the member's normal retirement date
shall have a vested benefit calculated by multiplying the member's
accrued benefit by the following applicable percentage:
|
Years of Service
|
Vesting Percentage
|
|---|---|
|
Less than 12 years
|
0%
|
|
Twelve years or more
|
100%
|
F.
Cost of living adjustment. The Evans City Borough
Council shall have the authority, upon the recommendation of the Police
Pension Board, to provide by resolution for a cost of living increase
for those participants in the plan receiving retirement benefits and
who qualify under applicable law. These cost of living increases may
be granted; provided, however, that such cost of living increase shall
not exceed the following:
(1)
The percentage increase in the Consumer Price Index
from the year in which the police officer last worked.
(2)
In no case shall the total police pension benefits
exceed 75% of the salary used for computing basic retirement benefits.
(3)
The total cost-of-living increase shall not exceed
30%. No cost of living increase shall be granted which would impair
the actuarial soundness of the Evans City Borough Police Pension Plan.
Prior to the recommendation of the cost of living increase, the Police
Pension Board shall direct the fund actuary to submit a written cost
estimate of the funding cost of such an adjustment.
The establishment of the plan shall not be construed
as conferring any legal rights upon any police officer or other person
to a continuation of employment nor shall it interfere with the rights
of the Borough to discharge any police officer or to treat him or
her without regard to the effect such treatment might have upon him
or her as a member of the plan.
Except insofar as may otherwise be required
by law, no benefit under the plan shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance
or charge, and any attempt to do so shall be voided, except as specifically
provided in the plan, nor shall any such benefits be in any manner
liable for or subject to garnishment, attachment, execution, levy
for other legal process for the collection of debts or liable for
or subject to the debts, contract, liabilities, engagements or torts
of the person entitled to such benefit.
Any member of the police force of the Evans
City Borough who has been a regularly appointed employee of Evans
City Borough for a period of six months and who thereafter shall enter
into the military service of the United States shall have credited
to his employment record for pension or disability benefits all of
the time spent by him or her in such service of the United States
military if such person returns or has heretofore returned to his
employment within six months after his separation from the service.
Notwithstanding any information that is made
available by the Evans City Borough Council, the Police Pension Board
or the trustees to members of the plan through the distribution of
descriptive booklets, bulletin board notices, payroll notices or oral
announcement, any member of the plan may examine the plan and all
amendments thereto at the main office of Evans City Borough at such
mutually convenient time as is arranged by the members and a representative
of the Evans City Borough and/or the Board of Trustees
A.
Administrative expenses. The expenses of administration
of the plan established by this article, including the compensation
of the actuary and the bond for the trustees of the plan, exclusive
of the payment of retirement or disability benefits, may be paid from
plan assets.
B.
Amendment of article. Insofar as the provisions of
this article are the same as statutory provisions, they shall be subject
to change or repeal to comply with any future statutory provisions
and the provisions of this article may be amended or repeated if statutory
authority is granted therefor or if statutory restrictions or mandates
are eliminated and discretion vested in Evans City Borough.
C.
Vacancies. In the event that the office of Chief of
Police shall become vacant, the rights and duties provided for the
Chief of Police under this article shall be fulfilled by the officer
in charge.
[Adopted 12-7-1998 by Ord. No. 482]
A.
ACCOUNT
CODE
COMMITTEE
COMPENSATION
(1)
(2)
(3)
(4)
CONVERSION DATE
EARLY RETIREMENT DATE
EFFECTIVE DATE OF THE PLAN
EMPLOYER
FULL-TIME EMPLOYEE
IRS
LABOR DEPARTMENT
NORMAL RETIREMENT DATE
PARTICIPANT OR MEMBER
PERMANENT AND TOTAL DISABILITY
PLAN
PLAN YEAR
REGULATIONS
RETIREMENT DATE
TRUST OR TRUST FUND
TRUSTEE
VALUATION DATE
VESTED BENEFIT
When used herein, the following terms shall have the
following meanings:
The account established and maintained with respect to a participant pursuant to § 18-17.
The Internal Revenue Code of 1986, as now in effect or as
hereafter amended. All citations to sections of the Code are to such
sections as they may, from time to time, be amended or renumbered.
The Committee provided for in § 18-28.
Compensation reportable as wages, tips and other
compensation on Federal Form W-2 as required by Sections 6041, 6051
and 6052 of the Code, excluding severance payments. Compensation for
any self-employed individual shall be equal to his earned income.
"Compensation" shall include only that compensation which is actually
paid to the participant during the applicable period.
In addition, "compensation" shall also mean
employer contributions made pursuant to a salary reduction agreement
which are not currently includible in the participant's gross income
by reason of the application of Code Sections 125, 402(a), 402(h)(1)(B)
or 457(a).
The annual compensation of each participant
taken into account for determining all benefits provided under the
plan for any plan year shall not exceed $150,000, as adjusted for
increases in the cost of living in accordance with Section 401(a)(17)(B)
of the Internal Revenue Code. The cost of living adjustment in effect
for a calendar year applies to any determination period beginning
in such calendar year.
If a determination period consists of fewer
than 12 months, the annual compensation limit is an amount equal to
the otherwise applicable annual compensation limit multiplied by a
fraction, the numerator of which is the number of months in the short
determination period and the denominator of which is 12.
January 1, 1998, the date as of which this plan is converted
from a defined benefit plan to a defined contribution plan.
The date provided in § 18-23.
January 1, 1998, the date on which this amended and restated
plan becomes effective.
Borough of Evans City.
An employee whose customary employment is for 35 or more
hours per week.
The United States Internal Revenue Service.
The United States Department of Labor.
The date defined in § 18-23A.
Any employee who is enrolled in the participation of the plan as provided in § 18-17.
The condition under which a participant qualifies for and
begins to receive a permanent and total disability benefit from the
United States Government under the provisions of the Federal Old Age
and Survivors Insurance Act (generally called the Social Security
Act, as said Act is presently constituted and as the same may be hereafter
amended).
Borough of Evans City Nonuniformed Employees Money Purchase
Pension Plan.
The twelve-month consecutive period which begins on January
1 and ends on December 31.
The applicable regulations issued under the Code or the Act
by the IRS, the Labor Department or any other governmental authority
and any temporary rules promulgated by such authorities pending the
issuance of such regulations.
A participant's normal retirement date, early retirement date, or postponed retirement date, whichever has become effective pursuant to § 18-23.
The trust established by the employer as a part of the plan.
The trustee or trustees of the trust.
The last day of each plan year and any other date as the
Committee, in its discretion, may, from time to time, determine.
The portion of a participant's account which has become nonforfeitable pursuant to § 18-24.
B.
Any masculine pronoun includes the feminine and any
singular reference means the plural, wherever appropriate.
A.
If it is found that the benefits provided under the
plan with respect to a participant are incorrect because of a misstatement
as to his age, length of credited service, earnings or any other relevant
fact, the benefits shall be equitably adjusted on the basis of the
correct facts with respect to such participant. The amount of the
benefits will be adjusted to the amount which could have been provided
on the basis of the correct facts.
B.
If it is ascertained that an overpayment has been
made, the amount of such overpayment will be charged against any further
payments to the participant. If it is ascertained that an underpayment
has been made by the plan, the amount of such underpayment shall be
paid by the plan to the participant or person entitled thereto, subject
to the sufficiency of the trust fund of the plan.
In connection with the administration of the
plan, the practice of the Committee, whenever there is a choice or
decision to be made with respect to participants of the plan, shall
be uniformly applied to all similar circumstances, with the result
that there shall be no discrimination in the operation of the plan.
The plan shall be construed, regulated and administered
under the laws of the Commonwealth of Pennsylvania.
A.
Enrollment.
(1)
Each full-time employee (as defined in § 18-13) who was actively participating under the provisions of the defined benefit plan immediately before the conversion date shall continue as an active participant under this amended plan.
(2)
Each other full-time employee (as defined in § 18-13) shall be enrolled in the participation of the plan on the last day of the month following completion of six months of full-time employment.
(3)
Notwithstanding Subsection A(2), each full-time employee who separated from service and who subsequently returns to full-time service shall be enrolled in the participation of the plan upon the completion of six months of full-time service measured from his date of reemployment.
(4)
The Committee shall take any necessary or appropriate action to enroll each employee eligible to be enrolled under this § 18-17 and, if it is determined that an eligible employee has for any reason not been enrolled in the participation of the plan, such employee shall be retroactively enrolled. The account of an employee who is retroactively enrolled shall, upon such enrollment, consist solely of the aggregate amount of contributions which would have been allocated to his account had he been enrolled when first eligible.
C.
The Committee shall establish and maintain or cause
to be established and maintained in respect to each participant an
account showing his interest under the plan and in the trust fund
and all relevant data pertaining thereto. Each participant shall be
furnished with a written statement of his account at least annually
and upon any distribution to him. In maintaining the accounts under
the plan, the Committee can conclusively rely on the valuations of
the trust fund in accordance with the plan and the terms of the trust.
D.
The establishment and maintenance of or allocations
and credits to the account of any participant shall not vest in any
participant any right, title or interest in and to any plan assets
or benefits except at the time or times and upon the terms and conditions
and to the extent expressly set forth in the plan in accordance with
the terms of the trust.
A.
The total amount of the contribution to the trust
fund to be made by the employer for each plan year shall be equal
to 7.5% of each participant's compensation while an active participant,
plus the amount of any expenses which are to be paid from the trust.
B.
The employer may make payment of its contribution
for any plan year on any date or dates it elects, provided that the
total amount of its contribution for any plan year shall be paid in
full within 2 1/2 months after the end of such year.
C.
The employer's contribution for a plan year shall
be paid directly by the employer to the Trustee in cash or, at the
option of the employer, in whole or in part, in other property acceptable
to the trustee. On or about the date of such payment, the Committee
shall be advised of the amount of such payment upon which its allocation
is to be calculated.
D.
An employer contribution which is made by a mistake
of fact shall be returned to the employer to the extent indicated
below within one year after the payment of the contribution. The amount
which may be returned to the employer is the excess of the amount
contributed over the amount that would have been contributed had there
not occurred a mistake of fact. Earnings attributable to the excess
contribution may not be returned to the employer, but losses attributable
thereto must reduce the amount to be so returned. Furthermore, if
the withdrawal of the amount attributable to the mistaken contribution
would cause the balance of the account to be reduced to less than
the balance which would have been in the account had the mistaken
amount not been contributed, then the amount to be returned to the
employer would have to be limited so as to avoid such reduction.
The employer's contribution for the plan year
(except such amount allocated to pay expenses of the plan) shall be
allocated among and credited to the accounts of participants pro rata
based on their compensation earned during the period they were participating
in the plan during the plan year.
There are no employee contributions.
A.
All moneys, securities or other property received
as contributions under the plan shall be delivered to the trustee
under the trust to be managed, invested, reinvested and distributed
in accordance with the plan, the trust and any agreement with an insurance
company or other financial institution constituting a part of the
plan and trust.
B.
Directed investment account.
(1)
Each participant will direct the trustee as to the
investment of all or a portion of the interest in any one or more
of his individual account balances. Participants may direct the Trustee
by completing the participant election form which is distributed before
January 1 and July 1 of each plan year or in any other manner which
is established by the administrator to invest any portion of their
account in specific assets, specific funds or other investments permitted
under the plan and the directed investment procedure. That portion
of the account of any participant so directing will thereupon be considered
a directed investment account, which shall not share in trust fund
earnings.
(2)
A separate directed investment account shall be established
for each participant who has directed an investment. Transfers between
the participant's regular account and his directed investment account
shall be charged and credited as the case may be to each account.
The directed investment account shall not share in trust fund earnings,
but it shall be charged or credited as appropriate with the net earnings,
gains, losses and expenses as well as any appreciation or depreciation
in market value during each plan year attributable to such account.
(3)
The Administrator shall establish a procedure, to
be applied in a uniform and nondiscriminatory manner, setting forth
the permissible investment options under this subsection, how often
changes between investments may be made and any other limitations
that the Administrator shall impose on a participant's right to direct
investments.
C.
Limits on transactions.
(1)
The Trustee shall not cause the plan to engage in
a transaction, if he knows or should know that such transaction constitutes
a direct or indirect:
(a)
Sale or exchange, or leasing, of any property between the plan and a party in interest (as defined in Subsection E);
(b)
Lending of money or any other extension of credit
between the plan and a party in interest;
(c)
Furnishing of goods, services or facilities
between the plan and a party in interest;
(d)
Transfer to or use by or for the benefit of
a party in interest, of any assets of the plan; or
(e)
Acquisition, on behalf of the plan, of any employer
security or employer real property in violation of the provisions
of this section.
D.
The Trustee shall not:
(1)
Deal with the assets of the plan in its own interest
or for its own account;
(2)
In its individual capacity or any other capacity act
in any transaction involving the plan on behalf of a party (or represent
a party) whose interests are adverse to the interest of the plan or
the interest of its participants or beneficiaries; or
(3)
Receive any consideration for its own personal account
from any party dealing with the plan in connection with a transaction
involving the assets of the plan.
E.
For the purpose of this section, the term "party in
interest" means:
(1)
Any fiduciary of the plan.
(2)
A person providing services to the plan.
(3)
An employer, any of whose employees are covered by
the plan.
(4)
A union whose members are covered by the plan.
(5)
An owner of the employer as defined in the Employee
Retirement Income Security Act of 1974.
(8)
Any other person, individual, corporation, partnership,
trust or estate who is considered a party in interest within the meaning
of Employee Retirement Income Security Act of 1974.
F.
Nothing in this section shall preclude the trustee
from receiving any reasonable compensation for services rendered or
for the reimbursement of expenses properly and actually incurred in
the performance of his duties with the plan, except that no person
so serving who already received full-time pay from the employer or
from any collective bargaining unit whose members are participants
in the plan shall receive compensation from the plan, except reimbursement
of expenses properly and actually incurred.
A.
Allocation of earnings.
(1)
In general. As of each valuation date, before allocation
of employer contributions, any earnings or losses (net appreciation
or net depreciation) of the trust fund shall be allocated in the same
proportion the each participant's and former participant's accounts
as of the preceding valuation date bear to the total of all participants'
and former participants' accounts as of such date.
(2)
Earnings on distributions. If any account of a participant
has been distributed prior to the valuation date subsequent to a participant's
termination of employment, no earnings or losses shall be allocated
to such accounts.
(3)
Earnings on directed accounts. Directed investment
accounts shall not share in trust fund earnings, but it shall be charged
or credited as appropriate with the net earnings, gains, losses and
expenses as well as any appreciation or depreciation in market value
during each plan year attributable to such account.
B.
In making the allocations in accordance with Subsection A above, the Committee can conclusively rely on the valuations of the trust fund by the Trustee and in accordance with the plan and terms of the trust. Such valuation shall be conclusive and binding upon all persons having an interest in the trust fund.
C.
The expenses of administering the plan, including
the fees and expenses of any employee and of the trustee for the performance
of their duties under the plan and trust, the expenses incurred by
the members of the Committee in the performance of their duties under
the plan (including reasonable compensation for any legal counsel,
certified public accountants, consultants and agents and cost of services
rendered in respect of the plan) and all other proper charges and
disbursements of the trustee or the members of the Committee (including
settlements of claims or legal actions approved by counsel to the
plan) may be paid out of the trust fund, if the employer does not
pay such expenses directly in such proportions as shall be determined
by the Committee.
D.
Brokerage fees, transfer taxes and any other expenses incident to the purchase or sale of securities by the trustee shall be deemed to be part of the cost of such securities or deducted in computing the proceeds therefrom, as the case may be. Taxes, if any, of any and all kinds whatsoever which are levied or assessed on any assets held or income received by the Trustee shall be allocated to and deducted from the accounts of participants by the Committee in accordance with the provisions of Subsection A above.
A.
Normal retirement date. The normal retirement date
of a participant shall be the date a participant attains his 65th
birthday.
B.
Postponed retirement date. A participant who remains in service after his normal retirement date shall be retired on a postponed retirement date which shall be the date of his termination of service. A participant whose employment continues beyond his normal retirement date shall continue to receive allocations under the provisions of § 18-19.
C.
Early retirement date. A participant may retire from
the employ of the employer on the date a participant attains his 55th
birthday and completes 20 years of service. His early retirement date
shall be the first day of the month coincident with or next following
his termination of service.
D.
Permanent and total disability date. A permanent and
total disability benefit shall be paid to a participant who satisfies
the condition of permanent and total disability.
A participant shall always be 100% vested in
his account(s) under the plan.
A.
Time of distribution of benefits to living participants.
(1)
Upon retirement or termination of service. Distribution
of benefits to a participant who terminates employment for any reason
shall commence as soon as administratively possible on or after the
participant's date of termination of service.
C.
Distribution of death benefits. If a participant dies before his entire interest has been distributed to him, his remaining interest shall be distributed in a lump sum cash payment or cash installment payments to his beneficiary, determined in accordance with § 18-27, within one year of his date of death, as elected by the beneficiary.
A.
Section takes precedence. The provisions of this § 18-26 shall govern notwithstanding any other provisions of the plan.
B.
Limitation on allocation to participants' accounts.
(1)
The amount of annual additions which the Committee
may allocate under this plan on a participant's behalf for a limitation
year shall not exceed the maximum permissible amount. Prior to the
determination of the participant's actual compensation for a limitation
year, the Committee may determine the estimated annual compensation
for such limitation year. The Committee shall make this determination
on a uniform and reasonable basis for all participants similarly situated.
The Committee shall reduce any employer contributions (including any
allocation of forfeitures) based on estimated annual compensation
by any excess amount carried over from prior limitation years. As
soon as is administratively feasible after the end of the limitation
year, the Committee shall determine the maximum permissible amount
for the limitation year on the basis of the participant's actual compensation
for the limitation year. All defined contribution plans (including
voluntary employee contribution accounts in a defined benefit plan
and key employee accounts under a welfare benefit plan described in
Code Section 419, as well as employer contributions allocated to an
IRA) of the employer, whether or not terminated, will be treated as
one defined contribution plan for purposes of the limitations under
Section 415(c) of the Code.
(2)
Disposition of excess amount. If the Committee allocated
an excess amount to a participant's account for a limitation year,
the Committee shall dispose of the excess amount as follows:
(a)
The Committee shall return any nondeductible
voluntary employee contributions to the participant to the extent
that the return would reduce the excess amount.
(b)
If, after the application of Subsection B(2)(a), an excess amount still exists and the plan covers the participant at the end of the limitation year, then the Committee shall use the excess amount(s) to reduce future employer contributions (including any allocation of forfeitures) under the plan for the next limitation year and for each succeeding limitation year, as is necessary, for the participant.
(c)
If, after the application of Subsection B(2)(a), an excess amount still exists, and the plan does not cover the participant at the end of the limitation year, then the Committee shall hold the excess amount unallocated in a suspense account. The Committee shall apply the suspense account to reduce employer contributions (including allocation of forfeitures) for all remaining participants in the next limitation year, and in each succeeding limitation year as necessary.
(d)
The Committee shall not distribute any excess
amount(s) to participants or to former participants.
(3)
If the participant presently participates or has ever
participated under a defined benefit plan maintained by the employer,
then the sum of the defined benefit plan fraction and the defined
contribution plan fraction for the participant for any limitation
year which begins prior to January 1, 2000, shall not exceed 1.0.
If, in any such limitation year, the sum of the defined benefit plan
fraction and the defined contribution plan fraction on behalf of a
participant does exceed 1.0, then the employer shall reduce its contribution
on behalf of such participant to the defined contribution plan to
the extent necessary to prevent the sum of the defined contribution
plan fraction and the defined benefit plan fraction from exceeding
1.0.
(4)
ANNUAL ADDITIONS
COMPENSATION
(a)
(b)
DEFINED BENEFIT PLAN
DEFINED BENEFIT PLAN FRACTION
(a)
(b)
DEFINED CONTRIBUTION PLAN FRACTION
EMPLOYER
EXCESS AMOUNT
LIMITATION YEAR
MAXIMUM PERMISSIBLE AMOUNT
PROJECTED ANNUAL BENEFIT
Definitions. For purposes of this Subsection B, the following terms shall mean:
The sum of the following amounts allocated on behalf of a participant for a limitation year: all employer contributions; all forfeitures; and the amount of all nondeductible employee contributions. For the purposes of this section, annual additions also shall include excess amounts reapplied to reduce employer contributions under Subsection B.
In general, the term "compensation" means the
compensation of the participant from the employer for the limitation
year.
Certain deferrals included. "Compensation" shall
include any amount which is contributed or deferred by the employer
at the election of the employee by reason of Section 125 or 457 of
the Code.
A retirement plan which does not provide for individual accounts
for employer contributions. The Committee shall treat all defined
benefit plans (whether or not terminated) maintained by the employer
as a single plan, and the Committee shall treat all defined contribution
plans (whether or not terminated) maintained by the employer as a
single plan.
A fraction, the numerator of which is the sum
of the participant's projected annual benefits under all the defined
benefit plans (whether or not terminated) maintained by the employer
and the denominator of which is the lesser of:
Notwithstanding the above, if the participant
was a participant in a plan in existence on July 1, 1982, the denominator
of this fraction will not be less than 125% of the sum of the annual
benefits under such plans which the participant had accrued as of
the later of September 30, 1983, or the end of the last limitation
year beginning before January 1, 1983. The preceding sentence applies
only if the defined benefit plans individually and in the aggregate
satisfied the requirements of Section 415 as in effect at the end
of the 1982 limitation year. For purposes of this subsection, a master
or prototype plan with an opinion letter issued before January 1,
1983, which was adopted by the employer on or before September 30,
1983, is treated as a plan in existence on July 1, 1982.
A fraction, the numerator of which is the sum of the annual
additions to the participant's account under all the defined contribution
plans (whether or not terminated) maintained by the employer for the
current and all prior limitation years, [including the annual additions
attributable to the participant's nondeductible employee contributions
to this and all other defined benefit plans (whether or not terminated)
maintained by the employer], and the denominator of which is the sum
of the maximum aggregate amounts for the current and all prior limitation
years of service with the employer (regardless of whether a defined
contribution plan was maintained by the employer). The maximum aggregate
amount in any limitation year is the lessor of:
In the case of a group of employers which constitutes a controlled group of corporations [as defined in Code Section 414(b) as modified by Code Section 415(h)], which constitutes trades or businesses (whether or not incorporated) which are under common control [as defined in Code Section 414(c) as modified by Code Section 415(h)] or which constitutes an affiliated service group as defined by Code Section 414(m), all such employers shall be considered a single employer for purposes of applying the limitations of this § 18-26.
The excess of the participant's annual additions credited
to the participant's account for the limitation year over the maximum
permissible amount.
The plan year.
For a limitation year, the maximum permissible amount with
respect to any participant shall be the lesser of $30,000 (or, beginning
January 1, 1986, such larger amount as the Commissioner of Internal
Revenue may prescribe) or 25% of the participant's compensation for
the limitation year. If there is a short limitation year because of
a change in limitation year, the Advisory Committee will multiply
the $30,000 limitation (or larger limitation) by the following fraction:
|
Number of months in the short limitation
year
|
|
12
|
The annual retirement benefit (adjusted to an actuarially
equivalent straight life annuity if the plan expresses such benefit
in a form other than a straight life annuity or qualified joint and
survivor annuity) of the participant under the terms of the defined
benefit plan on the assumptions he continues employment until his
normal retirement age as stated in the defined benefit plan, his compensation
continues at the same rate as in effect in the limitation year under
consideration until the date of his normal retirement age, and all
other relevant factors used to determine benefits under the defined
benefit plan remain constant as of the current limitation year for
all future limitation years.
Each participant will designate the beneficiary
to whom the death benefits, if any, shall be paid in the event of
his death prior to retirement. Each participant has the right, from
time to time, to change any designation of beneficiary and the interest
of any beneficiary will be subject to such right. A designation or
change of beneficiary must be in writing on forms supplied by the
Committee, and any change of beneficiary will not become effective
until such change of beneficiary is filed with the Committee, whether
or not the participant is alive at the time of such filing, but subject
to any action taken or payment made on direction of the Committee
prior to such filing. The interest of any beneficiary who dies before
the participant will terminate unless otherwise provided. If a beneficiary
is not validly designated, cannot be found or is not living at the
date of payment, any amount payable pursuant to this plan will be
paid to the executors or administrators of the participant's estate.
A.
The Committee shall have general responsibility for the administration and interpretation of the plan (including, but not limited to, complying with reporting and disclosure requirements, establishing and maintaining plan records and adopting amendments to the plan as described in § 18-30A). The Committee shall engage such enrolled actuaries or certified public accountants, who may be accountants for the employer, as it shall require or may deem advisable for purposes of the plan.
B.
The Trustee shall have responsibility under the plan
for the management and control of the assets of the plan. The Committee
shall periodically review the investment performance and methods of
the trustee and any other funding agency, including any insurance
company, under the plan and, with the approval of the Borough of Evans
City Council, may appoint and remove or change the trustee and any
such funding agency. The Committee shall have the power to appoint
or remove one or more investment advisers and to delegate to such
adviser authority and discretion to manage (including the power to
acquire and dispose of) the assets of the plan, provided that each
adviser with such authority and discretion shall be either a bank,
an insurance company or a registered investment adviser under the
Investment Advisers Act of 1940 and shall acknowledge, in writing,
that it is a fiduciary with respect to the plan and the Committee
shall periodically review the investment performance and methods of
each adviser with such authority and discretion. The Committee shall
establish any requirements and objectives of the plan (including any
interest rate or other actuarial assumptions) which may be pertinent
to the investment of plan assets and shall establish investment standards
and policies incorporating such requirements and objectives and communicate
the same to the trustee (or other funding agencies under the plan).
C.
The Committee may arrange for the engagement of such
legal counsel, who may be counsel for the employer, and make use of
such agents and clerical or other personnel as they each shall require
or may deem advisable for purposes of the plan. The Committee may
rely upon the written opinion of such counsel and the accountants
engaged by the Committee and may delegate to any such agent or to
any subcommittee or member of the Committee its authority to perform
any act hereunder, including, without limitation, those matters involving
the exercise of discretion, provided that such delegation shall be
subject to revocation at any time at the discretion of said Committee.
The Committee shall report to the Borough of Evans City Council, no
less frequently than at each annual meeting as shall be specified
by the Council, with regard to the matters for which it is responsible
under the plan.
D.
The Committee shall consist of at least three members,
two of whom shall be appointed by, shall remain in office at the will
of and may be removed, with or without cause, by the Borough of Evans
City Council, and one of which shall be appointed by, shall remain
in office at the will of and may be removed, with or without cause,
by the nonuniformed employees. Any member of said Committee may resign
at any time. No member of said Committee shall be entitled to act
on or decide any matter relating solely to himself or any of his rights
or benefits under the plan. The members of the Committee shall not
receive any special compensation for serving in their capacities as
members of such Committee but shall be reimbursed for any reasonable
expenses incurred in connection therewith. No bond or other security
need be required of the Committee or any member thereof in any jurisdiction.
Any member of said Committee, any subcommittee or agent to whom said
Committee delegates any authority and any other person or group of
persons may serve in more than one fiduciary capacity (including service
both as a trustee and administrator) with respect to the plan.
E.
The Committee shall elect or designate its own Chairman,
establish its own procedures and the time and place for its meetings
and provide for the keeping of minutes of all meetings, copies of
which shall be delivered to the Council. A majority of the members
of the Committee shall constitute a quorum for the transaction of
business at a meeting of the Committee. Any action of the Committee
may be taken upon the affirmative vote of a majority of the members
of the Committee at a meeting or, at the direction of its Chairman,
without a meeting, by mail, telegraph or telephone, provided that
all of the members of the Committee are informed by mail or telegraph
of their right to vote on the proposal and of the outcome of the vote
thereon.
F.
The Committee shall appoint an individual who shall
cause to be kept full and accurate accounts of receipts and disbursements
of the plan and shall cause to be deposited all funds of the plan
to the name and credit of the plan, in such depositories as may be
designated by the Committee. Such individual shall cause to be disbursed
the moneys and funds of the plan when so authorized by the Committee
and shall generally perform such other duties as may be assigned to
him from time to time by such Committee.
G.
All demands for money of the plan shall be signed
by such officer or officers or such other person or persons as the
Committee may, from time to time, designate in writing.
H.
All disputed claims for benefits under the plan shall
be submitted to and within a reasonable period of time decided by
the Committee. Written notice of the decision on each such claim shall
be furnished reasonably promptly to the claimant. If the claim is
wholly or partially denied, such written notice shall set forth an
explanation of the specific findings and conclusions on which such
denial is based. A claimant may review all pertinent documents and
may request a review by the Committee of such a decision denying the
claim. Such a request shall be made in writing and filed with the
Committee within a reasonable period of time, as specified by said
Committee in writing from time to time, after delivery to said claimant
of written notice of said decision. Such written request for review
shall contain all additional information which the claimant wishes
the Committee to consider. The Committee may hold any hearing or conduct
any independent investigation which it deems necessary to render its
decision, and the decision on review shall be made as soon as possible
after the Committee's receipt of the request for review. Written notice
of the decision on review shall be promptly furnished to the claimant
and shall include specific reasons for such decision. For all purposes
under the plan, such decisions on claims (where no review is requested)
and decisions on review (where review is requested) shall be final,
binding and conclusive on all interested persons as to participation
and benefit eligibility, the employee's amount of compensation and
as to any other matter of fact or interpretation relating to the plan.
I.
To the maximum extent permitted by law, no member
of the Committee shall be personally liable by reason of any contract
or other instrument executed by him or on his behalf in his capacity
as a member of the Committee nor for any mistake of judgment made
in good faith, and the employer shall indemnify and hold harmless,
directly from its own assets (including the proceeds of any insurance
policy the premiums of which are paid from the employer's own assets),
each member of the Committee and each other officer, employee or director
of the employer to whom any duty or power relating to the administration
or interpretation of the plan or to the management and control of
the assets of the plan may be delegated or allocated against any cost
or expense (including counsel fees) or liability (including any sum
paid in settlement of a claim with the approval of the employer) arising
out of any act or omission to act in connection with the plan unless
arising out of such person's own fraud or bad faith.
J.
Specifically, but not by way of limitation, the Trustee,
if any, is authorized and empowered to invest and reinvest all or
any part of the trust fund through the medium of a common trust fund
maintained by a bank, provided that as long as this trust has any
investments in a common trust fund available only to trusts which
meet the requirements of Section 401(a) and related sections of the
Code or corresponding provisions of specific income tax laws of the
United States, such common trust fund shall constitute an integral
part of this part of this trust and of the plan.
A.
In general. Except insofar as may otherwise be required
by law, no benefit under the plan shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance
or charge, and any attempt so to do shall be void, except as specifically
provided in the plan, nor shall any such benefits be in any manner
liable for or subject to garnishment, attachment, execution, levy
or other legal process for the collection of debts or liable for or
subject to the debts, contract, liabilities, engagements or torts
of the person entitled to such benefit.
B.
Domestic relations orders.
(1)
Notwithstanding Subsection A, the plan shall pay benefits in accordance with the applicable requirements of any domestic relations order in accordance with procedures established by the Committee.
(2)
ALTERNATE PAYEE
DOMESTIC RELATIONS ORDER
Definitions. For purposes of this Subsection B, the following terms shall have the meanings indicated:
Any spouse, former spouse, child or other dependent of a
participant who is recognized by a domestic relations order as having
a right to receive all or a portion of the benefits payable under
the plan with respect to such participant.
A court order which creates and recognizes the existence of an alternate payee's right to or assigns to an alternate payee the right to receive all or a portion of the benefits payable with respect to a participant under this plan, and with respect to which the requirements of Subsections B(3) and (4) are met and, is a judgment, decree or order (including approval of a property settlement agreement) which relates to the provision of child support, alimony payments or marital property rights to a spouse, former spouse, child or other dependent of a participant and is made pursuant to a state domestic relations law (including a community property law).
(3)
Specifications of order. A domestic relations order
meets the requirements of this subsection only if such order clearly
specifies:
(a)
The name and the last known mailing address
(if any) of the participant and the name and mailing address of each
alternate payee covered by the order;
(b)
The amount or percentage of the participant's
benefits to be paid by the plan to each such alternate payee, or the
manner in which such amount or percentage is to be determined;
(c)
The number of payments or period to which such
order applies; and
(4)
Terms of order. A domestic relations order meets the
requirements of this subparagraph only if such order:
(a)
Does not require the plan to provide any type
or form of benefits or any option not otherwise provided under the
plan;
(b)
Does not require the plan to provide increased
benefits (determined on the basis of actuarial value); and
(c)
Does not require the payment of benefits to
an alternate payee which are required to be paid to another alternate
payee under another domestic relations order previously recognized
by the plan.
A.
This plan may be amended or terminated at any time
by the employer, subject to 90 days' prior notice in writing to the
Trustee and the Committee; provided, however, that no modification
or amendment which affects the rights, duties and responsibilities
of the Trustee may be made without the Trustee's consent; and provided,
further, that no termination, modification or amendment shall permit
any part of the corpus or income of the trust fund to be used for
or diverted to purposes other than for the exclusive benefit of participants
under the plan and their beneficiaries. Any such amendment or termination
of the plan shall be accomplished by a written resolution adopted
by the Borough of Evans City Council.
B.
Termination.
(1)
In the event of termination of the trust, partial
termination or complete discontinuance of the employer's contributions,
distribution of the trust fund, less any amounts constituting charges
and expenses payable from the trust fund, shall be made upon the direction
of the Committee as provided in this section. The trustee, however,
shall have no duty to determine whether payments made pursuant to
distribution ordered by the Committee constitute any use or diversion
of the trust fund for purposes other than those provided for in the
plan.
(2)
If the employer terminates the plan as provided in Subsection B(1), the Committee shall compute the value of the trust assets held for the benefit of the participants, retired participants, terminated participants and their beneficiaries otherwise eligible to receive benefits under the plan. The Committee shall allocate the amount so valued to all such participants, retired participants, terminated participants and their beneficiaries otherwise eligible to receive benefits under the plan. The Committee shall allocate the amount so valued to all such participants, retired participants, terminated participants and their beneficiaries as determined in Subsection C below, but such allocation shall be reduced by the value of any prior payments of the plan from their account.
C.
Liquidation of the trust fund. Upon termination of
the plan or complete discontinuance of employer contributions, the
accounts of all participants affected thereby shall become fully vested,
and the Committee shall direct the Trustee to distribute the assets
remaining in the trust fund, (after payment of any expenses properly
chargeable thereto) to participants, former participants and beneficiaries
in proportion to their respective account balances.
D.
Manner of distribution. To the extent that no discrimination
in value results, any distribution after termination of the plan may
be made, in whole or in part, in cash, in securities or other assets
in kind, or in nontransferable annuity contracts, as the Committee
(in its discretion) may determine. All noncash distributions shall
be valued at fair market value at the date of distribution.
A.
Joinder of other affiliated employer organizations.
In the event that the Borough Council or equivalent governing body
of any subsidiary or affiliated or associated corporation of the appropriate
action with the written consent of the Borough Council, such corporation
shall participate in this plan and the trust upon execution of a joinder
agreement which shall provide, as a minimum, an agreement by such
affiliate to be bound by the provisions of this plan and the trust
agreement, an appointment of the Borough Council, the Committee and
the trustee as the exclusive agent of the affiliate to exercise on
its behalf all of the power and authority conferred on them hereby
or by the trust agreement, and the terms, conditions and procedures
for a termination of the plan and a distribution of the assets of
the trust as to said affiliate. The authority of the Borough Council,
the Committee and the Trustee to act as such agent pursuant to such
appointment shall continue until such a termination and distribution.
Any affiliate and the Trustee shall be fully empowered to negotiate
and execute said joinder agreement and to bind all interested persons
by said joinder agreement.
B.
Merger or consolidation. This plan may be merged or
consolidated with, or its agents and/or liabilities may be transferred
to, any other plan only if the benefits which would be received by
a participant of this plan, in the event of a termination of the plan
immediately after such transfer, merger or consolidation, are at least
equal to the benefits the participant would have received if the plan
had terminated immediately before the transfer, merger or consolidation.
A.
Each participant, former participant, beneficiary
and surviving spouse shall assume all risk in connection with any
decrease in the value of the assets of the trust and the participant's
accounts or special accounts and neither the Committee nor the Trustee
shall be liable or responsible therefor.
B.
The trust shall be the sole source of benefits under
the plan and, except as otherwise required by law, the employer and
the Committee assume no liability or responsibility for payment of
such benefits, and each participant, surviving spouse, beneficiary
or other person who shall claim the right to any payment under the
plan shall be entitled to look only to the trust for such payment
and shall not have any right, claim or demand therefor against the
employer, the Committee or any member thereof or any employee or Borough
Council.
C.
Nothing contained in the plan shall give any employee
the right to be retained in the employment of the employer or affect
the right of any such employer to dismiss any employee. The adoption
and maintenance of the plan shall not constitute a contract between
the employer and any employee or consideration of or an inducement
to or condition of the employment of any employee.
D.
If the Committee shall find that any person to whom
any amount is payable under the plan is unable to care for his affairs
because of illness or accident or is a minor or has died, then any
payment due him or his estate (unless a prior claim therefor has been
made by a duly appointed legal representative) may, if the Committee
so elects, be paid to his spouse, a child, a relative, an institution
maintaining or having custody of such person or any other person deemed
by the Committee to be a proper recipient on behalf of such person
otherwise entitled to payment. Any such payment shall be a complete
discharge of the liability of the plan and the trust therefor.
E.
Any and all rights or benefits accruing to any persons
under the plan shall be subject to the terms of the trust agreement
which the employer shall enter into with the trustee providing for
the administration of the trust fund. If the payment of any benefit
under the plan is provided for by a contract with an insurance company,
the payment of such benefit shall also be subject to all the provisions
of such contract.
F.
All elections, designations, requests, notices, instructions
and other communications from a participating employer, a participant,
beneficiary or other person to the Committee required or permitted
under the plan shall be in such form as is prescribed from time to
time by each such Committee, shall be mailed by first class mail or
delivered to such location as shall be specified by each such Committee
and shall be deemed to have been given and delivered only upon actual
receipt thereof by such Committee at such location.
G.
All notices, statements, reports and other communications
from a participating employer or either Committee to any employee,
participant, beneficiary or other person required or permitted under
the plan shall be deemed to have been duly given when delivered to
or when mailed by first class mail, postage prepaid and addressed
to, such employee, participant, beneficiary or other person at his
address last appearing on the records of the Committee.
H.
Upon such terms and conditions as the Committee may
approve, and subject to any required IRS approval, benefits may be
provided under the plan to a participant with respect to any period
of his prior employment by any organization, and such benefits (and
any service credited with respect to such period of employment as
defined in "hour of service") may be provided for, in whole or in
part, by funds transferred, directly or indirectly (including a rollover
from an individual retirement account, an individual retirement annuity
or a retirement bond), to the trust from an employee benefit plan
of such organization which qualified under Section 401(a) of the Code.
I.
The captions preceding the articles of the plan have
been inserted solely as a matter of convenience and in no way define
or limit the scope or intent of any provisions of the plan.
J.
The plan and all rights thereunder shall be governed
by and construed in accordance with the Act and the laws of the Commonwealth
of Pennsylvania.
K.
Notwithstanding any information that is made available
by the employer, the Committee, or the Trustee to participants of
the plan through the distribution of descriptive booklets, bulletin
board notices, payroll notices or oral announcements, any participant
of the plan may examine the plan exhibit, the trust agreement, if
any, and all amendments thereto at the main office of the employer
at such mutually convenient time as is arranged by the participant
and a representative of the employer, the Committee or the trustee.
A.
Effective as of the conversion date, the plan is hereby
converted from a defined benefit pension plan with the benefits and
features set forth in the provisions of the defined benefit plan,
to a defined contribution plan providing for the contributions and
benefits as set forth in this plan. No further benefits shall accrue
in this plan under the formulas and other provisions of the defined
benefit plan from and after the conversion date. All accrued benefits
under the provisions of the defined benefit plan shall be 100% vested
as of the conversion date. The only benefits which shall accrue thereafter
shall be the benefits which are derived from the contributions made
under the provisions of this plan.
B.
As soon as practicable after the conversation date,
the trustees shall allocate to each participant's individual account
an amount equal to the single sum actuarial equivalent of the participant's
accrued benefit in this plan as of the conversion date (as defined
and determined under the provisions of the defined benefit plan).
C.
If the value of remaining trust assets is greater than the amount to be allocated to participant accounts under Subsection B, the excess shall be allocated to the accounts of each participant as of the conversation date, pro rata according to the single sum actuarial equivalent of each participant's accrued benefit in this plan as of the conversion date (as defined and determined under the provisions of the defined benefit plan).
D.
If the value of remaining trust assets is less than the amount to be allocated to participant accounts under Subsection B, the employer shall contribute the amount of shortfall to the plan within 60 calendar days after receipt of notice to do so from the Trustees.
E.
The provision of the defined benefit plan and all
ordinances, resolutions and joinder agreements for or relating to
the Borough of Evans City Nonuniformed Employees' Pension Plan are
superseded by this article.
