1987-26 RESOLUTION NO. 87- 26
A RESOLUTION OF THE CITY COUNCIL- OF THE CITY OF
GRAND TERRACE, CALIFORNIA, RESCINDING RESOLUTION
NO. 79-49, AND ADOPTING AN EMPLOYEES' DEFINED
CONTRIBUTION RETIREMENT PLAN AND AUTHORIZING THE
EXECUTION OF AGREEMENTS RELATED TO SAID PLAN BY
THE CITY MANAGER.
WHEREAS, Resolution No. 79-49 established a Defined Contribution
Retirement Plan for its employees who are and will be rendering valuable
services to the City; and
WHEREAS, it is intended that said Plan shall be in accordance with
Federal and State laws and regulations:
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF GRAND TERRACE DOES HEREBY
RESOLVE, DETERMINE, AND DEMAND AS FOLLOWS:
SECTION 1. That Resolution No. 79-49 is hereby rescinded in its
entirety.
,r
SECTION12. That-�the;,Defined Contribution Retirement Plan, established by
-Council effective November 30; 1978, attached hereto and incorporated herein as
Exhibit "A", is to remain in effect until terminated by further resolution of
the City Council.
SECTION 3. That the City Manager is hereby designated as trustee and
authorized to cause to be issued deposits amounting to 12.4% of the City
employees' gross salaries.
SECTION 4. That the City Manager is hereby appointed to administer the
Plan on behalf of the City and is authorized to execute all documents and
agreements necessary to implement and administer the Plan.
ADOPTED this 12th day of November, 1987.
ATTEST:
City C1Qrk of the City of Grand Mar of the City o Grand
Terrace-` and of the City Council T race and of the City Council
thereof thereof.
Approved as to form:
A&,- � I
City Attorney
I, THOMAS SCHWAB, City Clerk of the City of Grand Terrace, do hereby
certify that the foregoing Resolution was introduced and adopted at a regular
meeting of the City Council of the City of Grand Terrace held on the 12th day
of November, 1987, by the following vote:
AYES: Councilmembers Pfennighausen, Grant, Evans, Shirley:
Mayor Matteson
NOES: None
ABSENT: None
ABSTAIN: None
i y Clem
• `1
TABLE OF CONTENTS
PAGE
PREAMBLE
ARTICLE I - DESIGNATION OF TRUST AND DEFINITIONS
1 .01 Title 1
1 .02 Beneficiary 1
1 .03 City Council 1
1 .04 Break-In-Service 2
1 .05 Code 2
1 .06 Committee 2
1 .07 Compensation 2
1 .08 Effective Date 2
1 .09 Anniversary Date 2
1 . 10 Employee 2
1 .11 Employer 2
1 .12 ERISA 3
1 . 13 Hour of Employment Service 3
1 .14 Normal Retirement 3
1 .15 Plan 3
1 . 16 Plan Year 3
1 .17 Participant 4
1 . 18 Disability 4
1 . 19 Trustee 4
1 .20 Year of Service 4
1 .21 Limitation Year 5
1 .22 Entry Date 5
ARTICLE II - ELIGIBILITY AND MEMBERSHIP
2.01 Eligibility Requirement 5
2.02 Leaves of Absence 5
ARTICLE III - EMPLOYER CONTRIBUTIONS
3.01 Employer Contributions 6
ARTICLE IV - ALLOCATIONS TO PARTICIPANTS ACCOUNTS
4.01 Accounts 6
4.02 Valuation of Accounts 6
4.03 Allocation of Employer Contributions and Forfeitures 7
4.04 Statement of Accounts 10
i
",. PAGE
ARTICLE V - VESTING AND BENEFIT ENTITLEMENT
5.01 Vesting 10
5.02 Forfeitures 11
ARTICLE VI - DISTRIBUTION OF BENEFITS
6.01 Methods of Distribution 11
6.02 Time of Distribution 13
6.03 Loans to Participants 15
6.04 Application of Benefit of Former Participant 16
6.05 Nonliability 16
6.06 Benefit Claims Procedure 16
6.07 Return of Prior Distributions 17
ARTICLE VII - BENEFICIARIES
7.01 Designation 18
7.02 Absence of Valid Designation of Beneficiaries 18
ARTICLE VIII - CONTRIBUTION OF MEMBERS
_. 8.01 Voluntary Contributions 18
8.02 Separate Administration and Accounts for
Participant Contributions 19
8.03 Vesting 19
8.04 Withdrawal of Voluntary Contributions 19
8.05 Distribution 19
8.06 Designation of Beneficiaries 19
ARTICLE IX - THE TRUSTEE
9.01 Acceptance of Trust 20
9.02 The Committee Shall Direct Investments 21
9.03 General Powers of the Trustee 22
9.04 Books and Records 24
9.05 Valuations 24
9.06 Life Insurance 24
9.07 Distributions 26
9.08 Resignation or Removal of Trustee 26
9.09 Taxes, Expenses and Compensation of the Trustee 27
9. 10 Miscellaneous 27
ii
PAGE
ARTICLE X - THE ADMINISTRATIVE COMMITTEE
10.01 Appointment of Committee 28
10.02 Administration of Plan 28
10.03 Compensation of Committee 29
10.04 Fiduciary 29
10.05 Delegation of Responsibilities 29
ARTICLE XI - AMENDMENT AND TERMINATION
11 .01 Amendment 29
11 .02 Termination or Partial Termination or Complete Dis-
continuance of Contribution 30
11 .03 Determination by Internal Revenue Service 30
ARTICLE XII - STANDARD OF CONDUCT OF FIDUCIARIES
12.01 Standard of Conduct 30
ARTICLE XIII - MISCELLANEOUS
13.01 Limitation of Rights ; Employment Relationship 31
13.02 Merger; Transfer of the Assets 31
13.03 Merger or Consolidation of Plan 32
13.04 Transfers from Other Qualified Plans 32
13.05 Return of Prior Distributions 32
13.06 Indemnification 32
13.07 Headings 33
13.08 Counterparts 33
13.09 Purpose 33
\ iii
CITY OF GRAND TERRACE
EMPLOYEES' DEFINED CONTRIBUTION RETIREMENT PLAN
AND
TRUST AGREEMENT
THIS AGREEMENT is called "CITY OF GRAND TERRACE EMPLOYEES' DEFINED
CONTRIBUTION RETIREMENT PLAN AND TRUST" and hereinafter referred to as the
"Trust," by and between CITY OF GRAND TERRACE, a California Corporation,
hereinafter referred to as "Employer," and SETH-ARMSTEAB-apd-EBWARB-R.-GLARIE;
THOMAS SCHWAB, Individuals as Trustees, and tbe4r-his successor, or successors,
hereinafter referred to as the "Trustee(s) ."
WITNESSETH
ARTICLE I
DESIGNATION OF TRUST AND DEFINITIONS
1.01 TITLE. This Retirement Plan and Trust shall be known as CITY OF
GRAND TERRACE EMPLOYEES' DEFINED CONTRIBUTION RETIREMENT PLAN AND
TRUST. The Plan and Trust are designed and intended to qualify
under the appropriate provisions of the Internal Revenue Code,
ERISA, and the California Revenue and Taxation Code.
1.02 "BENEFICIARY" shall mean person(s) entitled under the provisions of
this Plan to receive benefits after the death of a Participant.
1.03 "CITY COUNCIL" shall mean the members of the City Council of the
Employer.
1
1.04 "BREAK-IN-SERVICE" shall mean with respect to any Employee any Plan
Year in which such Employee does not complete, in the aggregate,
more than 500 hours of service.
A former Participant who had a non-forfeitable right to all or a
portion of his account balance derived from Employer contributions
at the time of his termination shall receive credit for all Years
of Service prior to his Break-In-Service upon completing a Year of
Service after his return to the employ of the Employer.
A former Participant who did not have a non-forfeitable right to
any portion of his account balance derived from Employer contribu-
tions at the time of his termination shall receive credit for Years
of Service prior to his Break-In-Service if (1) he completes a Year
of Service after his return to the employ of the Employer and (2)
the number of consecutive one year breaks in Service is less than
the aggregate number of Years of Service before such break.
1.05 "CODE" shall mean the Internal Revenue Code of 1954, as amended, or
any similar statutory provisions, hereinafter enacted. Where
reference is made herein to any specific section of the Code, such
reference shall be deemed to refer to such specific section or to
any similar statutory provisions hereafter enacted in lieu of such
specific section.
1.06 "COMMITTEE" shall mean the Retirement Plan Administrative Committee
appointed by the City Manager.
1.07 "COMPENSATION" shall mean the full regular basic salary and/or
hourly wages, overtime, exclusive of health and welfare or any
other payments, before deductions authorized by the Employee or
required by law to be withheld from the Employee by the Employer.
1.08 "EFFECTIVE DATE" The effective date of the Trust on and after which
date all action contemplated or per under its terms may be
performed shall be December 1, 1978.
1.09 "ANNIVERSARY DATE" shall mean the last day of each ,Plan Year.
1.10 "ELIGIBLE EMPLOYEE" shall mean a person employed by the Employer
aRy-peRt�eR-ef-whose-�REe�e-�s-seb�eei;-�e-wi�gbe�d�Rg-ef-�pEe�e
tam;-as-we4;-as-aRy-ether-perseR-qua4tty4Rg-as-a-eeFflfen-;aw
efflp4eyee-ef-the-Eiflp4eyerT _in a regular, permanent capacity as
defined by the employer. The designated 6 month probationary
period does not exclude the employee from being considered as
having been hired in a "permanent capacity".
1.11 "EMPLOYER" shall mean CITY OF GRAND TERRACE, a California Corpora-
tion, or any successor of affiliate corporation which may adopt
this Plan.
2
1.12 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
1.13 "HOUR OF EMPLOYMENT OR SERVICE" shall mean:
(1) Each hour for which an employee is directly or indirectly
paid, or entitled to payment, by the Employer for the performance
of duties. These hours shall be credited to the computation period
in which the duties are performed.
(2) Each hour for which an Employee is directly or indirectly
paid, or entitled to payment, by the Employer on account of a
period of time during which no duties are performed (irrespective
of whether the employment relationship has terminated) due to
vacation, holiday, illness, incapacity (including disability) ,
layoff, jury duty, military duty or leave of absence. These hours
shall be credited to the computation period or periods to which
such hours pertain, rather than the computation period in which
payment is made.
(3) Each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the employer. These
hours shall be creddited to the computation period or periods to
which the award or agreement for back pay pertains, rather than to
the computation period in which the award, agreement or payment is
made. The same hours of service shall not be credited both under
paragraph (1) or paragraph (2) above, as the case may be, and under
this paragraph (3) .
Computation periods determined under this definition shall be
computated with reference to Department of Labor Regulations
2530.200 b-2(b) and (c) .
1.14 "NORMAL RETIREMENT" shall mean the Participant's 60th birthday or
ten (10) years from the Entry Date in the Plan as a participant,
whichever is later, at which time a Participant shall be 100%
vested. A Participant who continues in the employ of the Employer
after he reaches Normal Retirement Age shall continue to partici-
pate in the Plan and have contributions allocated to his account.
When such Participant subsequently retires, he shall then be
entitled to benefits under the Plan payable in the same manner as
if he had retired at Normal Retirement Age.
1.15 "PLAN" shall mean the Retirement Plan set forth herein and any
amendments hereto.
1.16 "PLAN YEAR" shall mean the accounting period from 9eeeHiber-1st
tbebQh-Plee�be -39t1�: July 1 through June 30.
3
1.17 "PARTICIPANT" shall mean any Eligible Employee who meets the
eligibility requirements specified in ARTICLE II hereof.
1.18 "DISABILITY" shall mean the mental or physical inability of the
Participant to perform his normal job as evidenced by the certifi-
cate of a medical examiner satisfactory to the Employer certifying
that such condition is likely to be permanent.
1.19 "TRUSTEE" shall mean SETb-ARMSTEAD-aed-EDWARB-R:-66ARK THOMAS
SCHWAB, Individuals, or any successor trustee of the Trust estab-
lished pursuant to this Plan
1.20 "YEAR OF SERVICE" shall mean:
a. For purposes of vesting and-a;4g}6}}4ty-te-part4e}pate-in the
Plan, apd-exeept-as-prev4ded-4m-kb4-bereef7-"Year of Service"
means a 12-consecutive-month period during which an Employee
has at least 1,000 Hours of Service, with such period commenc-
ing on either (i ) the Employment Commencement Date, or (ii)
the first day of the first Plan Year following the Employment
Commencement Date if he has less than 1,000 Hours of Service
during the 12-month period beginning on the Employment
Commencement Date. �n-aey-evept;-after-aR-Epp;eyee-beeeRies-a
Part4e4pant;-After the initial year, Years of Service shall be
measured by Plan Years, beginning with the first Plan Year
immediately following the employment commencement date.
b- Fer-purposes-ef-deterFfl4R4ng-the-a;4g4b4}4ty-ef-ae-€fp;eyee-te
part4e4pate-4n-the-P4an-after-be-has-;est-h4s-status-as-a
Part4e}pant-4e-the-P;ae-due-te-b4s-bay4ng-4neurred-a-Break-IR-
Sery4ee;--'Year-ef-Sera4ee-'-reaps-a-12-eemseebt4ve-Fflentb-per}ed
db��eg-wh�eb-that-€�p�e,�ee-bas-a-feast-�;A9A-bears-ef-Se���ee;
w�tb-saEb-peg}ed-ee�r�epe�eQ-ee-e�tbe►�-���-�e-tbe-ease-ei -ae
EFflp4e,Yee-whose-sery4ees-w4th-the-Cefpafly-d4d-pet-tertfl4eate-4R
the-R;aR-Year-4e-wh4eb-be-4eeurred-b4s-;ast-Break-IR-Sera4ee;
or-{444-4n-the-ease-ef-ae-Emp;eyee-whose-sery4ee-w4tb-the
6efflpaey-terHi4eated-4e-the-R;an-Year-4e-wh4eb-be-4ReHrFed-h4s
;ast-Break-Ie-Sera4ee;-the-€Fflp;eyee's-EFHpleyfept-6eFRffleneement
Bate-eext-fe;;ew4ng"sa4d-tei-Ffl4eat}ep-ef-sery4ee-er-the-first
day-ef-tbe-first-P;an-Year-fe4;ew4eg-sa4d-EFflg4eyiflent-EeR9-
�eeee�ept-date-�f-tbe-E�p�e�+ee-bas-less-tWap- ;AAA-bears-ef
Se���ee-db��p9-tWe-12-a�eetW-pe��ed-beg�pp�pg-ep-said-E�p�ey-
Ffleet-6efFaeeeeFflept-date:
C. For purposes of vesting, all years of service with the
employer will be considered, including years in which the
employee declined to participate in the plan and years the
employee was in a category of employees excluded from the plan
(i .e. , hourly employees, employees covered under collectively
bargained agreements, non-resident aliens, etc. ) unless such
service may otherwise be properly disregarded.
4
1.21 "LIMITATION YEAR" shall mean the plan year as defined herein.
1.22 "ENTRY DATE" shall mean for the initial Plan Year the Effective
Date and thereafter it shall be the last day of the Plan Year.
ARTICLE II ELIGIBILITY AND MEMBERSHIP
2.01 ELIGIBILITY REQUIREMENT. Except for any Employee who is covered by
a collective bargaining agreement where retirement benefits are
subject to good faith bargaining, an Employee shall become a
Participant in this Plan as follows:
(a) The Participation of any Eligible Employee shall commence as
of the-4ast-day-ef-the-P;am-Year-fe;4ew4Rg the employment commence-
ment date, prey4ded;-heweyer;-that-the-€Fflp4eyee-}s-eFap;eyed-es-the
Oast-day-ef-seeh-P;an-Year-4e-wh4eh-part4e4pat4on-eeiflFflenees.
�h�---Netw4thstand4eg-aeyth4Rg-te-the-eeptrary-eemta4ned-here}e-
abeae;-a-fer�er-part4e4paet-who-4s-re-e�p;eyed-fe4;ew}ng-a-Break-
4m-Sery4ee-shalt-aga4n-beeeRie-a-Part4e4pant-eRly-after-aga4n
Ffleet4eg-the-e;4g4b4}4ty-requ4refents-et-Seet4on-2 91-hereef:--The
date-ef-part4e4pat4enT-however;-sha4;-be-retreaet}ye-te-the-date-ef
sa4d-re-emp4eyFReet-
fe4--rf-an-€mpReyee-who-has-fet-the-e44g�6414ty-requ4reRiepts
separates-f�e�-Se���ee-p��e�-te-heee��eg-a-Pa�t�e�papt-gip-the-Rae
aid-�s-sbhsegaept�y-�e-e���eyed-p��e�-te-�aee���pg-a-B�ea�-1e-
Se���ee;-saeh-€�p�eyee-sha��-heee�e-a-Past}e�papt-as-ef-the-fast
day-ef-the-Ptan-Year-i•FHFfled4ate;y-preeed�ng-sweh-re-efp;eyfent-date-
2.02 LEAVES OF ABSENCE. No Employee shall be deemed to have suffered a
Break-In-Service if his employment is interrupted because such
Employee has been on a leave of absence with the consent of the
Employer, provided that he returns to the employ of the Employer at
the expiration of such leave. Leaves of Absence shall mean leaves
granted by the Employer, in accordance with rules uniformly applied
to all Employees, for reasons of health or public service or for
reasons determined by the Employer to be in its best interest. A
Break-In-Service shall likewise not be deemed to have occurred
while an Employee is a member of the Armed Forces of the United
States provided that he returns to the service of the Employer
within 90 days (or such longer period as may be prescribed by law)
from the date he first became entitled to his discharge. Employees
who do not return to the employ of the Employer within 30 days
following the end of a leave of absence or within the required time
in the case of service with the Armed Forces, shall be deemed to
have terminated Service as of the effective date of said leave of
absence (unless such failure to return was the result of death,
Total Disability or approved early deferred or Normal Retirement) .
5
ARTICLE III EMPLOYER CONTRIBUTIONS
3.01 For the Employer's first Plan Year in which this Plan is in effect
and for each Plan Year thereafter, the Employer shall make contri-
butions to the Trust, in one or more installments in such amounts
as the Employer may determine, provided that (a) the amount of such
contribution, or the formula for determining- such amounts, shall be
agreed upon and communicated to the Participants prior to the end
of each Plan Year; (b) the Plan Year for which each contribution is
made shall be designated at the time of the contribution, (c) no
contribution shall be made in excess of the current and/or accumu-
lated revenues, (d) no contribution for any Plan Year shall exceed
an amount which the Employer estimates will be deductible under
Section 404(a) (3) , including carry overs, or if applicable, Section
404(a)(7) of the Code, and (e) no contribution for any Plan Year
shall be made if the Employer estimates that such contribution
would cause any Participant's annual addition for such Plan Year
(as such term is defined in Section 403(b)(1) hereof) to exceed the
limitation specified in Section 404(b) (1) hereof.
ARTICLE IV ALLOCATIONS TO PARTICIPANTS ACCOUNTS
4.01 ACCOUNTS. For purposes of allocating the Employer's contributions
and forfeitures, the Committee shall establish and maintain
separate accounts in the name of each Participant.
4.02 VALUATION OF ACCOUNTS
a. Within 90 days after the end of each Plan Year and within 90
days after the removal of resignation of the Trustee, the
Trustee shall value the assets of the Trust on the basis of
fair market values as of the close of the Plan Year (or the
close of any shorter period ending with such resignation or
removal ) . The Committee shall cause the assets of the Trust
to be valued on a Participant's termination of employment if a
change of 25% in the value of Trust assets has occurred since
the last annual or interim valuation. As of any valuation
date and prior to the allocation of Employer contributions and
forfeitures for the Plan Year, the Committee shall allocate
the increment of profits to or, as the case may be, charge the
losses against the respective accounts of the Participants in
proportion to the balances of such accounts as of the last
preceding valuation date. If interim valuation adjustments
are made, all Participants shall be treated alike.
b. Notwithstanding the foregoing, segregated accounts held in
accordance with the provisions of Section 6.02 shall be valued
6
separately on each valuation date, and the increment of
profits shall be allocated to or, as the case may be, the loss
shall be charged against each such account on a segregated
basis.
C. If the Trustee, in making such valuations, shall determine
that the Trust consists, in whole or in part, of property not
traded freely on a recognized market, or that information
necessary to ascertain the fair market value thereof is not
readily available to the Trustee, the Trustee may request the
Committee to instruct the Trustee as to the fair market value
of such property for all purposed under the Plan, and in such
event the fair market value placed upon such property by the
Committee shall be binding and conclusive. If the Committee
shall fail or refuse to instruct the Trustee as to the fair
market value of such property within a reasonable time after
receipt of the Trustee's request, the Trustee shall take such
action as it deems necessary or advisable to ascertain the
fair market value of such property, including the retention of
such counsel and independent appraisers, as it considers
necessary, and in such event the fair market value determined
by the Trustee shall be binding and conclusive. Fees incurred
by Trustees in connection with appraisal for retaining legal
counsel shall be borne 100% by the assets of the trust, and
not by the Employer.
4.03 ALLOCATION OF EMPLOYER CONTRIBUTIONS AND FORFEITURES.
a. The-€fp4eyer=s-eentr4but4ens-4me4us�ve-ef-Forfeitures for the
Plan Year shall be allocated among the accounts of the
Participants in proportion to their total Compensation for the
Plan Year provided, however, that the Employee is employed on
the last day of such Plan Year for which said contributions
are allocated.
b. Notwithstanding anything to the contrary contained in sub-
paragraph a. above, the following limitation shall apply in
respect of the allocation of Employer's contributions and
forfeitures to any Participant in any Plan Year.
(1) Subject to the adjustments hereinafter set forth,
the maximum annual addition to a Participant's
account shall in no event exceed the lesser of:
(a) $32,700; or
(b) 25% of the Participant's Compensation for
such Plan Year.
7
-ti (2) For purposes of sub-paragraph (1 ) above , the term
"annual addition" shall mean the sum for any Par-
ticipant in any following amounts :
(a) such Participant's allocable share
of Employer contributions ;
(b) such Participant' s allocable share
of forfeitures arising on account
of other Participants ' Breaks-In-
Service under Section 5.02 hereof;
and
(c) the lesser of:
(i ) the amount of such Participant's
voluntary contributions to the
Plan (as such contributions are
authorized under Section 8.01
hereof) in excess of 6% of such
Participant' s Compensation ; or
(ii ) one-half (112) of such Participant',s
total voluntary contributions.
(3) The limitation set forth in this Section 4.03
(b) of this ARTICLE IV with respect to any
Participant who at any time has been a participant
in any other defined contribution plan maintained
by the Employer shall apply as if the annual addi
. tions accrued to such Participant under all defined
contribution plans in which the Participant has
been a participant were derived from one plan.
(4) The limitation of $32 ,700.00 imposed by Section
4.03(b) (1 ) above shall be adjusted annually for
increases in the cost of living, in accordance
with the Regulations issued by the Secretary of
the Treasury pursuant to the provisions of Section
415(d) of the Code.
(5) Corrective Adjustments. Should a Corrective
adjustment to any Participant' s account be required,
in order to comply with the limitations herein con-
tained, the annual addition to such account shall
be reduced by one or more of the following adjust-
ments , in the order set forth and to the extent
necessary to obtain compliance with the Section
4.03.
- 8 -
—� (i ) By returning to such Participant all or the
necessary portion of any voluntary contributions
under Section 4.03(b) (2) (c) hereof;
(ii ) By reallocating to all other Participants
in the Plan not subject to Section 4.03(b) , in
proportion to their compensation for such Plan
Year, that amount of Employer' s contributions
inclusive of forfeitures which is allocable to
any Participant pursuant to Section 4.03(a) of
this ARTICLE IV and which causes such Participant' s
annual addition to exceed the applicable limitation.
(iii ) By maintaining a suspense account for the
excess forfeitures , pursuant to the provisions
of Section 5.02(b) , which , if allocated , would
cause the limitations on annual additions to be
exceeded.
c. Notwithstanding anything to the contrary contained in this
Plan , the following additional limitation shall apply to
any Participant in any Plan Year who is covered by any
defined benefit plan maintained by the Employer or by
a corporation referred to in Section 4.03(b) as well
as this Retirement Plan and/or any other defined
contribution plan:
(1 ) The rate of benefit accrual by such Par-
ticipant in any .such defined benefit plan
and/or the amount of annual additions to
his account(s) in this Retirement Plan
and/or any other defined contribution plan
will be reduced by the Committee to the
extent necessary to prevent the sum of the
defined benefit plan fraction and the sum of
the defined contribution plan fraction of this
Retirement Plan and/or any other defined con-
tribution plan for any year from exceeding 1 .4.
(2) For the purpose of applying the limitations
of this sub-paragraph the "defined benefit
plan fraction" shall be determined by dividing
the projected annual actual benefit of such
defined benefit plan by the maximum projected
annual actual benefit allowed by law; and the
"defined contribution plan fraction" shall be
determined by dividing the sum of the annual
additions to a Participant' s account(s) under
such defined contribution plan(s) by the sum
of the maximum amount of annual additions
which could have been made for each year of
service with the Employer.
9 -
4.04 STATEMENT OF ACCOUNTS. The Committee shall submit to each
Participant, within 120 days after the close of each Plan Year,
a statement in such form as the Committee deems desirable set-
ting forth the account balance of such Participant in his
account(s) .
ARTICLE V VESTING AND BENEFIT ENTITLEMENT
5.01 VESTING. Amounts credited to any Participant' s account shall not
vest in any individual Participant except as:
a. Full Vesting. The full amount credited to a Participant's
account shall be deemed 100% vested in him at Normal Retire-
ment Age, when his membership terminates by deferred retire-
ment with the approval of the Employer, by death, or by reason
of Disability.
b. Partial Vesting. No part of the account of a Participant
whose employment terminates for reasons other than Normal Retire-
ment, deferred retirement with the approval of the Employer,
death, or Disability, shall vest in him except in accordance
with the following schedule:
Vested Percentage of Such
Years of Service Participant' s Account
1 45%
2 55%
3 65%
4 7.0
5 75%
6 80%
7 85%
8 90%
9 95%
10 100%
c. Any Employee who separates from service and is re-employed
prior to incurring a Break-In-Service will continue to vest,
starting at the point in the vesting schedule where he left
employment, 'in both his pre-separation and post-separation
accrued benefit.
d. The pre-break service of a participant who separated from
service with a non-forfeitable interest, or of a non-vested
participant whose prior service cannot be disregarded under IRC
j_ .
10 -
411 (a) (6) (D) , will be considered for vesting purposes in the
post-break account balance. An Employee must complete a year
of service measured from his re-employment commencement date
prior to taking all such service into account:
5.02 FORFEITURES.
a. If any Participant suffers a Break-In-Service in any Plan
Year for reasons other than Normal Retirement, deferred
retirement with the approval of the Employer, death , or
Disability, the vested portion of his account shall be
determined as of the end of such Plan Year, with reference
to the vesting schedule contained in Section 5.01 b. above.
All amounts in such Member' s account which are not vested
shall be allocated as a forfeiture in the manner provided
in Section 4.03.
b. If in any year the forfeitures exceed the maximum amount
that may be allocated, such excess forfeitures may not be
allocated.
A suspense account holding the unallocated forfeitures for
any year or years may be maintained if (1 ) no employer
contributions may be made at any time when their allocation
would be precluded by IRC Section 415, (2) investment gains
and losses and other income are not allocated to the suspense
account, and (3) amounts in the suspense account are allo-
cated as of each allocation date on which forfeitures may
be allocated until the account is exhausted.
ARTICLE VI DISTRIBUTION OF BENEFITS
6.01 METHODS OF DISTRIBUTION
(a) STANDARD FORM
In the case of a Participant who, on his retirement date or on
the date of his death while employed by the Employer, is married,
the Standard Form of retirement benefit shall be payable in lieu
of any other form of retirement benefit unless he elects not
to have the Standard Form apply to him. If he makes such an
election , his benefits shall be payable according to an optional
form, as provided in Section 6.01 (b) . The Standard Form of
retirement benefit shall be a monthly benefit payable for the
life of the Participant and, commencing on the first day of the
month following the month in which the Participant dies , a
monthly benefit not less than 50% .of and not to exceed 100% of
the benefit Payable to the Participant under this Standard Form,
payable for the life of the person who was his Spouse on his
Retirement Date.
_.� (b) OPTIONAL FORMS
In lieu of the retirement benefits provided in Section 6.01 (a) ,
a Participant may elect to receive his benefit in another form.
Other specific options available will be determined on a non-
discriminatory basis by the Plan Administrator. Any benefits
payable under an optional form shall be the Actuarial Equivalent
of the benefit otherwise payable according to the Standard Form.
Under any optional form the present value of benefits payable
to the participant must exceed the present value of benefits
payable to any other person unless the optional form provides
benefits in the form of a joint and survivor annuity under which
the Participant' s Spouse is the contingent annuitant and periodic
payments to the Spouse are no greater than those to the Partici-
pant. Such present values shall be evaluated as of the Partici-
pant' s Retirement Date.
Notwithstanding anything to the contrary, no Policy of life
insurance shall be distributed to any Participant which contains
any options not permitted under this Plan.
The optional forms of benefit payments available under this Section
shall be as follows:
(1 ) Period-Certain and Life Option - A Participant
may elect to receive a reduced Pension benefit
until death; and if the Participant' s death
- - occurs within a period of five , ten or twenty
years (as elected by the Participant) , then
payment of the Pension will be continued in
the same amount to the person or persons desig-
nated by the Participant for the balance of the
five, ten or twenty-year period.
(2) Contingent Annuitant Option - A Participant may
elect to receive a reduced Pension payable
during the joint lives of the Participant and
another person as his contingent annuitant, so
that, following the death of the Participant,
payment of the Pension in the same amount or in
an amount equal to 66 2/3% of the Participant' s
reduced Pension (as elected by the Participant)
shall continue to the contingent annuitant, if
surviving , with the last payment to be made as
of the first day of the month in which the death
of the contingent occurs.
(3) Lump-Sum Option - A Participant may elect to receive
a lump-sum distribution in an amount equal to his
Accrued Benefit earned to date.
12 -
(c) PROCEDURE FOR RECEIVING OPTIONAL FORMS OF BENEFITS
(1 ) Election Period - Any election under this Section 6.01
must be communicated to the Plan Administrator in
writing during an election period which shall be a
period of 90 days immediately prior to the first day
of the first period with respect to which an amount
is to be received as a benefit; provided, however,
that if the information is not supplied to the Parti-
cipant within the period specified in Section 6.01
(c) (2) , then the election period shall end on the
90th day following the date on which the last of
the information is given. Any benefit paid to a
Participant shall be reduced by the value of any
benefit already received by said Participant.
(2) Information for Participant - Within a reasonable
time after the first day of the election period, the
Plan Administrator shall deliver to each Participant
a written notification of the availability of an elec-
tion to receive the benefit in another form and of
the availability of information , upon the request of
the Participant, of a written explanation in non-
technical language of the terms and conditions of the
joint and survivor annuity and the financial effect
upon the Participant's Annuity (in terms of dollars
per annuity payment) of making an election to receive
the benefit in another form. This information must be
provided to the Participant at least 9 months before
the Normal Retirement Age.
(3) Revocation of an Election - An election made to re-
ceive the benefit in another form may be revoked in
writing during the election period. After an election
has been revoked, another election to receive the bene-
fit in another form may be made during the election
period
6.02 TIME OF DISTRIBUTION
a. It is the intent of the Employer that any Contracts purchased
pursuant to Section 9.06 be converted to a non-transferable
annuity to provide a Participant the amount of retirement
benefit he is entitled to under the provisions of ARTICLE IV
of this Plan.
Additionally, notwithstanding anything herein to the con-
trary, a Participant who h'as obtained the consent of his
Eligible Spouse, or in the event there is no Eligible Spouse,
the Participant alone, or in the event of the Participant's
death , his beneficiary, may request the Committee to commute
13 -
the value of his retirement benefit or any death benefit not
payable under a Contract and pay said commuted value to him
in an immediate lump sum in cash within 180 days of the
date of his entitlement to such retirement benefit. The
Committee shall have complete discretion whether or not
to honor such request.
The payment of benefits under the Plan to a Participant
will begin not later than the 60th day after the latest
of the close of the Plan Year in which:
(a) the date on which the Participant attains the
earlier of the age 65 or the Normal Retirement Age spe-
cified under the Plan ;
(b) occurs the loth anniversary of the year in
which the Participant commenced participation in the
Plan; or
(c) the Participant terminates h.is service with
the Employer.
In the case of a plan which provides for the payment of
an early retirement benefit, such Plan shall provide that
a Participant who satisfied the Service requirements for
such early retirement benefit, but separated from the
Service (with any non-forfeitable right to an accrued
benefit) before satisfying the age requirement for such
early retirement benefit, is entitled upon satisfaction
of such age requirement to receive- a benefit not less than
the benefit to which he would be entitled at the Normal
Retirement Age, actuarially reduced under regulations
prescribed by the Secretary of the Treasury.
b. When the Committee determines , in accordance with sub-
paragraph a. above, that distribution to a Participant.
shall be deferred and distributed in the form of cash,
the Committee shall direct the Trustee to deposit the
amount distributable in a savings account, or accounts ,
in any bank (including a Trustee bank) or savings and loan
association , provided that any such savings account must
be an account insured by an instrumentality of the United
States Government and provided further, that the amount:
deposited in any such account shall in no event exceed
the maximum amount of insurance applicable thereto, or to
purchase investment certificates or certificates of deposit
issued by any bank or savings and loan association, provided
the principal of such certificates is insured by an instru-
mentality of the United States Government and provided
further, that the amount so applied shall not exceed the
maximum amount of such insurance applicable thereto.
- 14 -
Interest earned on or credited to any such savings account
or certificates shall be added to the amount distributable
to the Participant, and, prior to the distribution , any
amounts held in such savings accounts or certificates shall
be part of the Trust and shall be subject to all of the
provisions thereof, except that they shall be valued sep-
arately as provided in Section 4.02.
C. When the Committee determines , in accordance with sub-
paragraph a. above, that distribution to a Participant
shall be deferred and distributed in kind, the Committee
shall direct the Trustee to segregate, as a segregated
account of the Trust, the property (including securities,
annuities or other property) to be distributed , and such
property shall thereafter be held for distribution in the
manner designated by the Committee. Such segregated
accounts shall continue as part of the Trust and be subject
to all the provisions thereof, except that such accounts
shall share in the allocations of Trust income or loss ,
as provided in Section 4.02 , on a segregated basis.
d. The Plan Administrator or the Committee, as the case may
be, may postpone payment of benefits until his actual retire-
ment and in such event shall segregate the Participant's
account and credit it with investment earnings. However,
a Participant who elects to defer receipt of benefits may
not do so to the extent that he is creating a death benefit
that is more than incidental . At such time as his benefit
shall become payable, it shall be subject to the provisions
of this Section 6.01 .
e. Involuntary distributions (including distributions made
due to termination- of the member' s participation in the
Plan) of $1 ,750 or less will be made only if such , distri-
bution represents the entire value of the Participant's
nonforfeitable benefit, and that distributions exceeding
$1 ,750 will be made only with the member' s consent.
6.03 LOANS TO PARTICIPANTS. The Committee may, in its sole discretion
and upon written application of a Participant, authorize the
Trustee to make a loan or loans to such Participant in a total
amount not in excess of 90% of the value of the vested amount
credited to such Participant' s account(s) , provided- that the
policy with respect to making any such loan shall be uniformly
and nondiscriminatorily applied, and in no event shall the Com-
mittee be required to authorize any such loans. Any loan or loans
made to a Participant shall , to the extent of the amount thereof,
be treated as a segregated investment of the vested portion of
his account(s) , shall provide for a specific date and period of
repayment that shall not be for a period extending beyond the
date of the Participant' s Normal Retirement , shall be adequately
J secured and shall be evidenced by the Participant's promissory
- 15 -
note bearing interest at a rate equal to the rate then being
charged by institutional lenders in the area of the Employer' s
principal place of business for other loans of this type; pro-
vided, however, that no such promissory note shall bear interest
at a rate which would exceed the then applicable usury limitation.
6.04 APPLICATION OF BENEFIT OF FORMER PARTICIPANT. In the event that
the Committee finds that a Participant, former Participant, or
Beneficiary is unable to care for his affairs because of his
minority, illness , accident, or other reason , any benefits pay-
able hereunder shall be paid by the Trustee to the duly appointed
guardian or other legal representative, and any such payment so
made shall be in complete discharge of all liability therefor.
6.05 NONLIABILITY. Any payment to a Participant, or to his legal
representative or Beneficiary, in accordance with the provisions
of this Plan, shall to the extent thereof be in full satisfaction
of all claims hereunder against the Trustee, the Committee and
the Employer, any of whom may require such Participant, legal
representative or Beneficiary as a condition precedent to such
payment to execute a receipt and release therefore in such form
as shall be determined by the Trustee, the Committee, or the
Employer, as the case may be. The Employer does not guarantee
the Trust, the Participants , former Participants or their Bene-
ficiaries against loss of or depreciation in value of any right
or benefit that any of them may acquire under the terms of this
j Plan. All of the benefits payable hereunder shall be paid or
provided solely from the Trust and the Employer does not assume
any liability or responsibility therefor.
6.06 BENEFIT CLAIMS PROCEDURE
a. Applications. All applications for benefits under the Plan
shall be submitted to the Committee at the Employer' s prin-
cipal place of business. Applications for benefits must be
in writing on the forms prescribed by the Committee and must
be signed by the Participant and his spouse, if any, or in
the case of a death benefit by the Beneficiary or legal
representative of the deceased Participant. The Committee
reserves the right to require the Participant to furnish
proof of his age and that of his joint annuitant, if any,
prior to processing any application. - Each application shall
be acted upon and approved or disapproved within 60 days
following its receipt by the Committee. In the event any
application for benefits is denied, in whole or in part, the
Committee shall notify the applicant in writing of such denial
and of his right to a review by the Committee and shall set
forth in a manner calculated to be understood by the applicant,
specific reasons for such denial , specific references to per-
tinent Plan provisions on which the denial is based , a des-
cription of any additional material or information necessary
for the applicant to perfect his application , an explanation
of why such material or information is necessary, and an
explanation of the Plan ' s review procedure.
b. Review of Denials. Any person , or his duly authorized
representative , whose application for benefits is denied in
whole or in part may appeal from such denial to the Committee
for a review of the decision by submitting to the Committee
within 120 days after receiving written notice from the
Committee of the denial of his claim a written statement
(a) requesting a review of his application for benefits by
the Committee; (b) setting forth all of the grounds upon
which his request for review is based and any facts in sup-
port thereof; and (c) setting forth any issues or comments
which the applicant deems pertinent to his application. The
Committee shall meet at least monthly to review applications
for benefits submitted to it. The Committee shall act upon
each application within 60 days after receipt of the appli-
cant' s request for review by the Committee. The Committee
shall make a full and fair review of each such application
and any written material submitted by the applicant in
connection therewith and may require the applicant to submit
such additional facts , documents , or other evidence as the
Committee, in its sole discretion , deems necessary or advis-
able in making such a review. On the basis of its review,
the Committee shall make an independent determination of the
applicant' s eligibility for benefits under the Plan. The
decision of the Committee 6n any application for benefits
shall be final and conclusive upon all persons if supported
by substantial evidence in the records. In the event the
Committee denies an application in whole or in part, the
Committee shall give written notice 6f its decision to the
applicant setting forth in a manner calculated to be under-
stood by the applicant the specific reasons for such denial
and specific references to the pertinent Plan provisions
on which the Committee decision was based.
6.07 RETURN OF PRIOR DISTRIBUTIONS." Upon the re-employment of a
former Participant who had received Cash-Out and whose vested
interest in his Accrued Benefit at the time of the Cash-Out was
less than 100%, his Years of Accrual Service, as of the date
of his termination of employment, shall be restored if he repays ,
within two years of his date of re-employment, the amount of
such Cash-Out. If such amount -is not repaid in full , the Parti-
cipant' s Years of Accrual Service shall not be restored. Any
amounts so repaid shall be deposited by the Trustee in the Con-
version Fund. Upon the re-employment of a former Participant
who had received a Cash-Out and whose vested interest in his
Accrued Benefit at the time of distribution was 100%, no repay-
ment of the amount of the Cash-Out shall be permitted , and his
Years of Accrual Service shall not be restored. Notwithstanding
anything to the contrary contained hereinabove, all Years of
Service for a re-employed Participant would be aggregated for
- 17 -
vesting purposes with respect to his post-distribution and post-
Break-In-Service accrued benefits .
ARTICLE VII BENEFICIARIES
7.01 DESIGNATION. Each Participant shall have the right to designate
on forms provided by the Employer a Beneficiary or Beneficiaries
to receive the benefits herein provided in the event of his death,
and shall have the right at any time to revoke such designation
or to substitute another such Beneficiary or Beneficiaries.
7.02 ABSENCE OF VALID DESIGNATION OF BENEFICIARIES. If, upon the
death of a Participant, former Participant or Beneficiary, there
is no valid designation of Beneficiary on file with the Employer,
the Committee shall designate as the Beneficiary, in order of
priority, the following:
A. The surviving spouse;
B. The surviving children , including adopted
children;
C. S.urviving parents ; or
D. The Participant' s estate,
provided that at all times the Committee shall have the right to
designate as Beneficiary the Participant' s estate irrespective of
said order of priority. The determination of the Committee as to
which persons , if any, qualify within the aforementioned category
shall be final and conclusive upon all persons .
ARTICLE VIII CONTRIBUTIONS BY MEMBERS
8.01 !VOLUNTARY CONTRIBUTIONS
a. Eligibility. All Employees who become Participants may
become eligible for voluntary contributions to the Plan by
submitting an application on a form to be provided by the
Committee. All such applications shall include the Partici-
pant 's acceptance of the relevant terms and conditions of
this Plan , his designation of the proportion of his Compen-
sation which he shall contribute, and his consent to the
withholding of such contributions by the Employer from his
Compensation. A Participant may continue to make voluntary
contributions throughout the period he is a Participant
in the Plan; provided , however, that a Participant shall
have the absolute right to discontinue voluntary contributions
as of the end of any month following the month in which he
gives written notice thereof to the Employer.
- 18 -
b. Amount of Contributions. A Participant once eligible to make
voluntary contributions may contribute to the Trust such
amounts as he shall determine by his written election to the .
Committee; provided , however, that such amounts shall not be
less than 2% in any Plan Year nor shall the aggregate of
such amounts contributed by him to this Plan and all other
qualified plans maintained by the Employer exceed 10% of the
aggregate Compensation paid him by the Employer in all years
since he became a Participant in the Plan. A Participant
may change once in each Plan Year the amount of his contri-
bution , within the permissible limits, with respect to future
contributions by filing a written direction with the Committee.
The Committee may at its discretion, subject to written request
by the participant, allow the participant to change his elec-
tion more than one time during the Plan Year.
c. Collection of Contributions. The contributions of Partici-
pants shall be collected by the Employer either by means of
payroll deductions or by direct contributions from the Par-
ticipants. All contributions received by the Employer, whether
by withholding or directly from the Participant, shall be
paid over by the Employer to the Trustee within 30 days after
they have been collected , to be held and administered in the
Trust established under this Plan .
8.02 SEPARATE ADMINIISTRATION AND ACCOUNTS FOR PARTICIPANT CONTRIBUTIONS.
The contributions of the Participants shall be accounted for
separately from the Employer's contributions. The Committee shall
open for each Participant a separate account for his voluntary .
contributions made pursuant. to Section 8.01 and a separate account
for his return of prior distributions made pursuant to Section
13.06. At least once each year as of the end of the Plan Year,
or at more frequent intervals if directed by the Committee , the
Trustee shall value on the basis of fair market values that part
of the Trust- assets attributable to such separate accounts. As
of any such valuation date, the Trustee shall allocate the pre-
viously unallocated increments and profits to or, as the case may
be, charge the previously unallocated losses against the respec-
tive accounts in proportion to the amounts therein as of the
valuation date. For the purpose of allocating profits and losses ,
the accounts t:) which Participants ' contributions are allocated
shall include a portion of current year contributions , which por-
tion shall be determined on a weighted basis by considering the
length of time (in months) since the making of the contribution
in relation to the number of months elapses since the last valua-
tion. For example , if at the time of valuation twelve months have
elapsed since the last valuation and a contribution has been made
nine months previously, nine-twelfths of the contribution would
be included for purposes of allocating profits or losses to such
accounts.
- 19 -
8.03 VESTING. A Participant ' s accounts) to which his contributions
are allocated including both his own contributions , and any in-
crease in value thereof, shall at all times be fully vested in
the Participant and shall not be forfeitable for any cause.
8.04 WITHDRAWAL OF VOLUNTARY CONTRIBUTIONS. The balance of the
account to which a Participant's voluntary contributions are
allocated may be withdrawn upon 15 days written notice to the
Committee, severance of employment being automatically deemed
such notice; provided, however, that the amount credited to such
account shall reflect any charges or credits to his account based
on valuations directed by the Committee to be made during this
15-day period, and provided further that in the absence of sever-
ance of employment such withdrawals shall Be subject to the prior
consent of the Committee, which consent shall be granted or denied
in accordance with rules uniformly and undiscriminately applied.
Any Participant who withdraws any part of his voluntary contri-
butions account must withdraw the lesser of the entire amount
of his voluntary contributions or the fair market value of the
account and shall be ineligible to reapply for voluntary contri-
butions for a period of one year from the date of such withdrawal .
8.05 DISTRIBUTION. When a Participant terminates his employment with
the Employer, the account to which his voluntary contributions
are allocated shall be distributed to him in a single lump-sum
payment, unless within 60 days prior to such termination he elects,
in the form of a writing filed with the Employer, to have such
account transferred to the account to which his vested share of
Employer contributions is allocated. Distribution or transfer of
such account(s) as provided above shall be made during or as soon
as practical after the end of the Plan Year in which the Parti-
cipant terminates his employment.
8.06 DESIGNATION OF BENEFICIARIES, Each Participant shall have the
same right to designate a Beneficiary or Beneficiaries for the
account(s) to which his contributions are allocated as he has
for his account to which Employer contributions are allocated.
In the absence of a valid designation of a Beneficiary or Bene-
ficiaries upon the death of a Participant, the account estab-
lished for voluntary contributions shall be distributed to his
estate , and the account established for rollover contributions
and the account established for returns of prior distributions
shall be distributed in the same manner as provided in Section
7.02 .
ARTICLE IX THE TRUSTEE
9.01 ACCEPTANCE OF TRUST, The Trustee hereby accepts the Trust
created hereunder and agrees to perform the obligations imposed
by this Agreement.
- 20 -
--, 9.02 THE COMMITTEE SHALL DIRECT INVESTMENTS
a. General . The Trustee, as directed by the Committee, shall
have the power to invest and reinvest the assets of the Trust,
exercising the care, skill , prudence , and diligence under
the circumstances then prevailing that prudent men acting in
a like capacity and familiar with such matters would use in
the conduct of an enterprise of a like kind and with like
aims, not with regard to speculation , but with regard to the
permanent disposition of funds , considering the probable in-
come generated thereby as well as the probable safety of
capital . Within the limitations of the foregoing and subject
to such limitations as may hereinafter be stated, the Trustee
is authorized to acquire any kind of investment, specifically
including, but not by way of limitation , commercial paper,
corporate obligations of every kind, and stocks , preferred
or common.
b. Directions of Committee. The powers granted to the Trustee
under this Agreement shall be exercised by the Trustee in
its discretion subject to the direction of the Committee
with reference to investing and re-investing assets of the
Trust. Nevertheless the Committee may at any time and from
time to time by written direction to the Trustee require the
Trustee to invest in , retain or dispose of any security or
other fiorm of investment as may be specified in such direction.
Subject 'to any limitations hereinafter stated, the fund may be
invested pursuant to such directions in any investment of any
kind, for the investment of trust funds. Neither the Trustee
nor any other person shall be under any duty to question any
such direction . Any such direction may be of a continuing
nature , or otherwise, and may be revoked in writing by the
Committee at any time. The Trustee shall not be responsible
in any manner and for any reason for the making, retention
or disposition of any investment pursuant to the directions
of the Committee. The Committee has been named fiduciary
and. administrator of the Plan provided for by ERISA and,
except as otherwise provided for in the Plan, shall have
the authority to control and manage the operation and adminis-
tration of the Plan, The Trustee shall not be responsible in
any way for the operation and administration of the Plan.
c. Combination With Assets of Other Trusts . The Trustee may
combine the assets of this Trust for investment purposes with
any other trusts established by the Employer .pursuant to the
provisions of any qualified employee-benef.it plan . In such
event, the Trustee shall keep separate records of the amounts
allocable to each such fund .
d. Company Security Limitation. The Trustee shall not invest
in any security issued by the Employer which is not a Company
Security, as defined herein. No investment of any part of the
Trust shall at any time be made in any Company Security if by
- 21 -
reason of such investment the aggregate fair market value of
all Company Securities held in the Trust immediately after
such investment shall exceed 10% of the then fair market value
of the assets of the Trust. For purposes of this provision ,
"Company Security" means stock of the Employer and any bond,
debenture, note or certificate, or other evidence of indebted-
ness of the Employer which is a "marketable obligation" as
defined in Section 407 (e) of ERISA.
9.03 GENERAL POWERS OF THE TRUSTEE. The Trustee shall have all the
powers necessary to hold in trust and administer all funds contem-
plated hereby, including, but not by way of limitation , the power:
a. to collect and receive the income of the Trust and any and
all money, securities and other property, of whatsoever kind
or nature due to, owing or belonging to the Trust;
b. to hold and invest in , without liability for interest there-
on, any money in any bank, including any banking department
of any bank serving as Trustee hereunder, or in any insured
savings and loan association or company;
c. to sell , exchange or otherwise dispose of any securities or
other property at any time or times and on such terms and
conditions as it may deem appropriate and to contract or
grant options for .the purchase, exchange or other disposition
thereof;
d. to have, respecting bonds , shares of stock and other securi-
ties , all of the rights , powers and privileges of an owner,
including the holdings of securities in its own name, or
in the name of a nominee, with or without disclosure of the
Trust, voting, giving proxies , making payments of costs ,
assessments or other sums deemed by the Trustee expedient
for the protection of the Trust, exchanging securities , sell -
ing or exercising subscription rights , exercising conversion
rights , consenting to, and participating in foreclosures ,
reorganizations , consolidations , mergers , liquidations ,
pooling agreements and voting trusts , and assenting to cor-
porate sales , leases and encumbrances ;
e. to extend the time of payments of any obligation at any time
owing to the Trust; to deposit any securities or other property
with any protective, reorganization, or similar committee,
to delegate discretionary powers thereto, and to pay and
agree to pay a portion of the expenses and compensation thereof
and any assessments levied with respect to any such securities
or other property so deposited;
f. to settle, compromise or submit to arbitration any claims ,
debts or damages due or owing to or from the Trust; to com-
mence or defend legal proceedings for or against the Trust;
22 -
and to represent the Trust in all proceedings in any court
of law or equity or before any other body or tribunal ;
g. to borrow money and to issue promissory notes evidencing any
such borrowings or advances and to secure the repayment there-
of by mortgage, deed of trust, or pledge of any securities or
any other property constituting the Trust or any part thereof;
and to pay and discharge any indebtedness of the Trust or any
lien or other charge against the Trust;
h. to enforce any mortgage, deed of trust, pledge or other secu-
rity interest held hereunder, and to purchase at any sale
thereunder any property subject thereto;
i . to create reserves of cash or other assets of the Trust for
the payment of expenses , or for distributions pursuant to the
Plan, or for any other purposes in connection with this Agree-
ment;
j . to sue or defend in connection with any and all securities
or other property at any time received or held by or for the
Trust, and all costs and attorney's fees in connection there-
with shall be charged against the Trust;
k. to employ agents , including without limitation, investment
advisors , appraisers , attorneys and accountants . Fees in-
curred shall be borne 100% by the assets of the Trust, and not
by the Employer.
1 . Notwithstanding any other provisions of this Agreement, the
Trustee shall have full power and authority to transfer money
and other assets of the Trust to any bank licensed to do
business. in California as trustee of any investment fund or
funds consisting exclusively of assets of pension and profit-
sharing trusts . In such event, said instrument or instruments
shall become a part hereof as fully as if set forth at length
herein. Phoney and other assets of the Trust invested ---in said
fund or funds small be held and adhinistered by the trustee
thereof strictly in accordance with the terms and under the
powers granted in said instrument or instruments. The com-
bining of money and other assets of the Trust with money and
other assets of other qualified trusts in -such fund or funds
is specifically authorized, and if, at any time hereafter,
the Trustee hereunder shall be .any bank licensed to do busi-
ness in California, it shall have full power and authority
to transfer the assets subject to this Trust to itself as
trustee of any such common investment fund or funds to which
the assets of the Trust might otherwise be transferred pur-
suant to the above provisions if the Trustee hereunder were
not such bank.
- 23 -
9.04 BOOKS AND RECORDS. The Trustee shall keep accurate and detailed
accounts of all investments , receipts and disbursements , and any
other transactions engaqed in by the trust, and all accounts , books
and records relating thereto shall be open to inspection at all
reasonable times by the Committee or its designated representative.
9.05 VALUATIONS. Within ninety (90) days after the end of each fiscal
year of the Employer, within ninety (90)days after the removal or
resignation of any Trustee , and whenever so requested in writing
by the Committee, the Trustee shall value the assets of the Trust
and shall file with . the Committee a written statement reflecting
the fair market value of the assets and liabilities of the Trust
and the receipts and disbursements of the Trust since the last
statement filed with the Committee. If the Trustee, in making
any such valuation, shall determine that the Trust consists , in
whole or in part, of property not traded fully on a recognized
market, or that information necessary to ascertain the fair market
value thereof is not readily available to the Trustee, the Trustee
may request the Committee to instruct the Trustee as to the fair
market value of such property for all purposes under the Plan,
and in such event, the fair market value placed upon such property
by the Committee shall be binding and conclusive. If the Com-
mittee shall fail or refuse to instruct the Trustee as to the fair
market value of such property within a reasonable time after receipt
of the Trustee 's request, the Trustee shall take such action as
it deems necessary or advisable to ascertain the fair market
value of such property, including the retention of such counsel
and independent appraisers as it considers necessary, and in
such event the fair market value determined by the Trustee shall
be binding and conclusive. Except for the Trustee 's negligence,
willful misconduct or lack of good faith, upon the expiration
of ninety (90) days from the filing of such statement and report,
the Trustee shall be forever released and discharaed from all
liability and accountability to anyone with respect to the pro-
priety of its acts or transactions as set forth in such account,
unless written objection is filed with the Trustee within the said
ninety (90) day period by any person interested in this Agreement.
9.06 LIFE INSURANCE
a. The Committee may direct the Trustee in writing to acquire
life insurance or annuity contracts on the lives of the Par-
ticipants in the Plan in specified amounts , which amounts
shall be determined by the Committee on a uniform and non-
discriminatory basis. Any type of life insurance
contracts written by a legal reserve life insurance company
and requested by the Committee , excepting tern insurance
contracts , will be acceptable. The aggregate life insurance
premiums with respect to each Participant shall be less than
one-half of the aggregate Employer contributions and for-
feitures allocated to him at any particular time. The
acquisition of any policy by the Trustee pursuant to this
. 1
- ?a -
Article shall be subject to the provisions of ARTICLE X.
When a Participant' s employment is terminated by retirement,
disability, death or otherwise, the Trustee shall either
convert such policy into an annuity contract or cash
for the benefit of the Trust or, upon the written direction
of the Committee, assign and deliver the policy to the Par-
ticipant. No insurance company issuing any such policy shall
be a party to this Plan or have any responsibility for the
qualification of this Plan. The liability of any such insur-
ance company shall be only as provided in any policy which
it may issue. Notwithstanding any other provisions of this
Plan , a Participant' s account(s) shall not be credited with
such portions(s) of any contribution(s) used to pay premiums
on life insurance on such Participant' s life, but, instead,
upon the death of any such Participant, there shall be added
to the account of such Participant, at the earliest practical
date, the amount by which the proceeds receivable by. the Trust
from all such insurance upon such Participant' s life shall
exceed the amounts , if any, credited to such Participant's
account, prior to the time of his death with respect to such
insurance. Similarly, in the case of any life insurance upon
any Participant's life which is converted for the cash value
thereof, there shall be added to the account of such Partici-
pant, at the earliest practical date, the amount by which
the cash value receivable by the Trust from such insurance
upon the life of such Participant shall exceed the amounts ,
if any, credited to such Participant's account, prior to such
conversion with respect to such insurance.
b. The Trustee shall exercise all right$ , options , and benefits
provided by any policy or permitted by any insurance company
with respect to any policy issued by it, including the right
to change any provision which shall become operative upon
the termination of employment of any Participant. When a
Participant' s employment is terminated by retirement, dis-
ability, death or otherwise, he may convert such policy into
an annuity contract or cash for the benefit of the Trust
or, may, with the written direction of the Committee, assign
and deliver the policy to the Participant. No Participant
shall have the right to direct the Trustee with respect to
any policy held in the Trust on his life without proceeding
through the Committee.
c. At the written direction of the Committee, the Trustee shall
pay the premiums on any. policy held in the Trust, except that
the Trustee shall have no duty to pay premiums hereunder un-
less there are sufficient assets available in the Trust.
The Trustee shall accumulate dividends , receive dividends
in cash or apply dividends in reduction of premiums. Any
dividends payable with respect to any policy as to which
there shall be no further premiums due shall be paid in cash
- 25 -
- to the Trustee and added to the Trust.
d. The Participant shall designate the Beneficiary under any
such policy, change such Beneficiary from time to time, state
the method of settlement to be effective upon the maturity
of any policy, and change any such method of settlement.
No Participant shall have the right to direct the Trustee
with respect to the Beneficiary or method of settlement of any
such policy; the Participant's rights in this respect being
limited. to those specified inthe Plan.
e. No insurance company which shall issue any policy as herein-
above provided shall be a party to this Trust, or have any
responsibility for the validity of this Trust. The liabi-
lity of any such insurance company shall be only as provided
in any policy which it may issue. Any insurance company
shall be fully protected from all liability in accepting
premium payments from the Trustee and making payments to or
on the direction of the Trustee, without liability as to
the application of such payments . Such insurance. company
shall be fully protected in dealing with the Trustee as the
sole owner of policies held under this Trust, and shall not
be liable in assuming that the Trust has not been amended
or terminated until notice of any amendment or termination
of the Trust has been received by the insurance company at
its home office. No amendment of the Trust shall deprive
the insurance company of any protection except as to poli-
cies issued by it after receipt at its home office of notice
of the terms of such amendment. The insurance company shall
be fully protected in dealing with the Trustee according to
the latest notification received by it at its home office.
9.07 DISTRIBUTIONS. The Trustee shall from time to time, under written
direction of the Committee signed by a majority of the then members
thereof, or by any such person or persons as may be from time to
time designated therefor by the Committee acting by a majority of
its members , make distribution from the Trust to such persons in
such manner, in such amounts and for such purposes as may be
specified in such directions. The Trustee shall incur no liability
for any distribution made by it pursuant to the directions of the
Committee, and shall be under no- duty to inquire as to whether
any distribution directed by the Committee is made pursuant to the
provisions of the Plan. The Trustee may make any payment required
to be made by it hereunder by mr;.iling its check for the amount
thereof to the person to whom such payment is to be made at the
address furnished by the Committee, or if no such address shall
have been furnished, to such pe-Son in care of the Employer at its
principal office.
9.08 RESIGNATION OR RE140VAL OF TRUSTEE. Any Trustee may resign at any
time upon the giving of fifteen (15) days written notice to the
26 -
Employer, and any Trustee may be removed by the Employer at any
time upon the giving of fifteen (15) days written notice to all
Trustees . The resignation or removal shall become effective upon
the receipt of the written notice and thereupon , the Employer shall ,
if there was but a sole Trustee, and may, if there was before such
resignation or removal at least two Trustees , appoint a successor
Trustee or Trustees which may be a corporation, one or more in-
dividuals or a combination thereof. Notwithstanding the foregoing,
however, no resignation or removal of a sole Trustee shall be
effective until a successor has been appointed and the appoint-
ment has been accepted. Any successor Trustee shall have the same
rights, powers and duties as he would have had as an original
Trustee.
9.09 TAXES, EXPENSES AND COMPENSATION OF THE TRUSTEE.
a. Taxes. The Trustee shall deduct from and charge against
the assets of any trust any taxes paid by it which may be
imposed upon the Trust.
b. Expenses; Compensation. The Trust (and in no event shall
these expenses be of the Employer) shall pay to the Trustee
annually its expenses in administering the Trust, including
without limitations , fees paid to attorneys, accountants
and appraisers, and, in the case of a corporate trustee
only, the Trust shall also pay to the Trustee reasonable
compensation for its services as the Trustee hereunder at
a rate to be agreed upon in writing from time to time.
The Trustee shall have a lien on the assets of the Trust
for such expenses and compensation, and the same way be
withdrawn from the Trust.
9.10 MISCELLANEOUS.
a. Irrevocability__ Except for such amendments as are permitted
u.nde.r ARTICLE X h,the Trust create un er t is Aareement is
'irrevocable.--Nev re theless , the Employer may at any time at
�'its_sole and absolute discretion discontinue making contri-
butions to the trust, or terminate the trust in accordance
with the provisions of the Plan.
b. Request for Instructions . In addition to instructions re-
lating to valuations „ at any time the Trustee may, by written
request, seek instructions from the Committee on any matter
and may await the written instructions from the Committee
without incurring an,; liability whatsoever. If at any time
the Committee should fail to aive directions to the Trustee,
the Trustee may act, and shall be protected in acting without
such directions , in such manner as in its discretions seems
appropriate and advisable under the circumstances for carry-
ing out the purposes of this Trust.
- 27 -
5
c. Liability of Trustee. The Trustee shall not be liable for
any losses which may be incurred upon the investments of the
Trust, except to the extent that; such losses shall have been
causes by its negligence , bad faith or willful ] misconduct.
d. Spendthrift Clause. No benefits under this Agreement shall
be subject in any manner to be anticipated, alienated, sold,
transferred, assigned, pledged, encumbered or charged; any
attempt to so anticipate, alienate, sell , transfer, assign,
pledge, encumber or charge the same shall be void, nor shall
any such- benefits in any manner be liable for or subject to
the debts , contracts , liabilities or torts of the person
entitled to such benefits as herein provided for him.
e. Gender and Number. As used in this Agreement, the masculine,
feminine or neuter gender, the single or plural number and
the use of the collective or the separate shall each be
deemed to include the others whenever the context so indi-
cates .
f. Applicable Law; Severability. This Agreement shall be con-
strued and enforced accordina to ERISA and, to the extent
applicable, according to the laws of the State of California.
If any provision of this Agreement is held invalid or un-
enforceal:le, such invalidity or unenforceability shall not
affect any other provision, and this Agreement shall be
construed and enforced as if such provision had not been
included.
ARTICLE X THE ADMINISTRATIVE COMMITTEE
10.01 The City Council shall appoint an Administrative Committee which
may be comprised of one or more members of the Employer' s City
Council and the Employer may designate to serve as the Committee
its entire City Council as the same may be constituted from time
to time. The Employer shall certify to the Trustee the names
and specimen signatures of the members of the Committee. The
Committee shall serve at the pleasure of the Employer and any
member of the Committee may resign by written instrument addressed
to the Employer and may be removed by the Employer with or without
cause. While a vacancy exists , the remaining members of the Com-
mittee may perform any act which the Committee is Authorized to
perform.
10.02 The Committee shall administer the Plan and shall resolve by
majority vote all questions involving the interpretation , appli-
cation and administration of the Plan. The Committee 's resolu-
tion of such questions shall be final and binding upon the
Participants and their Beneficiaries , former Participants , and
their successors , assigns , heirs and personal representatives
of any of them. The Committee may direct the investment of the
- 28 -
assets of the Trust by written direction to the Trustee. No
member of the Committee may participate in any decision which
involves solely his interest as a Participant in the Plan.
10.03 The members of the Committee shall receive no compensation for
acting as such , but the Trust shall reimburse the Committee for
all necessary and proper expenses incurred in administering this
Plan.
10.04 The Committee is the named fiduciary and administrator of the
Plan provided for by ERISA and, except as otherwise provided for
herein, shall have the authority to control and manage the opera-
tion and administration of the Plan. The Committee shall make
such rules , regulations , interpretations and computations , and
shall take such other action to administer the Plan as the Com-
mittee may deem appropriate. The Committee shall administer the
Plan in a uniform and nondiscriminatory manner consistent with
the requirements of Section 401 (a) of the Code.
10.05 As provided above, the City Council shall appoint the Committee
but the City Council shall have no responsibility for the operation
and administration of the Plan. The Committee from time to time
may allocate to one or more of its members and may delegate to
any other persons or organizations any of its rights , powers ,
du-�ies and responsibilities with respect to the operation and
administration of the Plan. Any such allocation and delegation
of responsibilities shall be reviewed at least annually by the
Committee and shall be terminable upon such notice as the Com-
mittee, in its sole .discretion , deems reasonable and prudent
under the circumstances. The Committee may employ such persons
or organizations to render advice or perform services with
respect to responsibilities of the Committee under the Plan as
the Committee , in its sole discretion, determines to be necessary
a:•id appropriate. Such persons or organizations may include, with-
out limitation , actuaries , attorneys , accountants , and financial
and administrative consultants.
ARTICLE XI AMENDMENT AND TERMINATION
11 .01 AMENDMENT. To provide for contingencies which may require or
make advisable the qualification , modification or amendment of
this Plan , at any time and from time to time, in whole or in
part, including without limitation , retroactive amendments neces-
sary or advisable to qualify this Plan and the Trust established
in connection therewith under the provision of Section 401 (a)
of the Code. However, no such amendment shall (a) reduce the
benefits of any Participant accrued under the Plan to' the date
the amendment is adopted; or (b) divert any part' of the assets
of the Trust Fund to purposes other than for the exclusive bene-
_ ?q _
fit of the Participants , retired Participants or their joint
annuitants or Beneficiaries who have an interest in the Plan
or for the purpose of defraying the reasonable expenses of admin-
istering the Plan. No amendment of the Plan shall permit any
part of the fund to be used to pay premiums or contributions -
of the Employer under any other plan maintained by the Employer
for the benefit of its employees.
11 .02 TERMINATION OR PARTIAL TERMINATION OR COMPLETE DISCONTINUANCE
OF CONTRIBUTIONS. Although the Employer has established the
Plan with a bona fide intention and expectation that it will
be able to make contributions indefinitely, nevertheless , the
Employer is not and shall not be under any obligation or liabi
lity whatsoever to continue its contributions or to maintain the
Plan for any given length of time. The Employer may in its sole
and exclusive discretion discontinue such contributions or
terminate the Plan in accordance with its provisions at any time
without any liability whatsoever for any such discontinuance
or termination. If the Plan shall be terminated, partially ter-
minated, or the contributions of the Employer shall be completely
discontinued, the rights of all Participants in their accounts
shall thereupon become nonforfeitable notwithstanding any other
provisions of this Plan. However, the Trust shall continue un-
til all Participants ' accounts have been completely distributed
to or for the benefit of the Participants or their Beneficiaries
in accordance with this Plan.
-- 11 .03 DETERMINATION BY INTERNAL REVENUE SERVICE. Notwithstanding any
other provision of this Plan , if the Internal Revenue Service
shall fail or refuse to issue a favorable written determination
or ruling with respect to the initial qualification of the Plan
and exemption of the Trust from tax under Section 401 (a) and
501 (a) of the Code, the Trustee shall , within a reasonable
time after receiving a written direction from the Committee to
do so, return to the contributors the then value of all contri-
butions theretofore made, provided that as a condition to such
repayment the Employer shall execute, acknowledge and deliver
to the Trustee its written undertaking, in form satisfactory
to the Trustee, to indemnify, defend and hold the Trustee harm-
less from all claims , actions, demands or liabilities arising
in connection with such repayment.
ARTICLE XII STANDARD OF CONDUCT OF FIDUCIARIES
12 .01 Each member of the City Council and of the Committee and any other
person to whom any fiduciary responsibility with respect to the
Plan is allocated or delegated shall discharge his duties and
responsibilities with respect to the Plan in accordance with the
standards set forth in Section 401 (a) (1 ) of ERISA, which provides :
30 -
"Subject to Sections 403(d) , 4042, and 4044, a
fiduciary shall discharge his duties with respect to a
Plan solely in the interest of the Participants and
Beneficiaries and --
(A) For the exclusive purose of:
(i ) providing benefits to Participants and
their Beneficiaries; and
. (ii ) defraying reasonable expenses of admin-
istering the Plan;
(B) With the care, skill , prudence and diligence under
the circumstance then prevailing that a prudent man
acting in a like capacity and familiar with such
matters would use in the conduct of an enterprise
of a like character and with like aims ;
(C) By diversifying the investments of the Plan so as
to minimize the risk of large losses, unless under
the circumstances it is clearly prudent not to do
so; and
(D) In accordance with the documents and instruments
governing the Plan insofar as such documents and
instruments are consistent with the provisions of
this title.
ARTICLE XIII MISCELLANEOUS
13.01 LIMITATION OF RIGHTS: EMPLOYMENT RELATIONSHIP. Neither the
establishment of this Plan and the Trust nor any modifications
thereof, nor the creation of any fund or account nor the payment
of any benefits , shall be construed as giving to any Participant
or other person any legal or equitable right against the Em-
ployer or the Trustee except as provided herein; and, in no event,
shall the terms of employment of any Employee or Participant be
modified or in any way be affected hereby.
13.02 MERGER: TRANSFER OF THE ASSETS. If the Employer merges or con-
solidates with or into any other corporation , if substantially
all of the assets of the Employer shall be transferred to any
other corporation, or if the Employer dissolves and liquidates,
the Plan hereby created shall terminate on the effective date
of such merger, consolidation , transfer, or dissolution. However,
if the surviving corporation resulting from such merger or con-
solidation, or the corporation to which the assets have been
transferred, or any corporation which continues the business of
the Employer adopts this Plan, the Plan shall continue and said
corporation shall succeed to all rights , powers and duties of
the Employer hereunder. The Employment of any Employee who is
continuing in the employ of such successor corporation shall
not be deemed to have been terminated for any purposes hereunder.
13.03 MERGER OR CONSOLIDATION OF PLAN. In the event that this Plan
and the Trust merges or consolidates with, or transfers its
assets or liabilities to, any other qualified plan of deferred
compensation , no Participant herein shall , solely on account
of such merger, consolidation or transfer, be entitled to a be-
nefit on the date following such event which is less than the
benefit to which he was entitled on the date preceding such event.
For the purpose of this section, the benefit to which a Partici-
pant is entitled shall be calculated based upon the assumption
that a Plan termination and distribution of assets occurred on the
date as of which the amount of the Participant's entitlement
is being determined.
13.04 TRANSFER FROM OTHER QUALIFIED PLANS. Notwithstanding any other
provision hereof, there may be transferred to the Trustee, suL-
ject to the approval of the Employer and the Trustee and to a
prior determination of the Internal Revenue Service that such
transfer will not adversely affect the qualified status of the
Plan, all or any of the assets held (whether by a trustee, custo-
dian or otherwise) on behalf of any other plan which satisfied
the applicable requirements of Section 401 (a) of the Code, and
which is maintained for the benefit of any persons who are or-
about to become Participants in this Plan.
13.05 RETURN OF PRIOR DISTRIBUTIONS. If any Participant shall have
received, on account of his separation from service from the
Employer, a single .distribution of his account(s) pursuant to
Section 6.01 a. , and if such person may repay the full amount
of such distribution (and not less than the full amount of such
distribution) to the Plan, provided that no such repayment may
be made if such person has (i ) suffered a 1 -year Break-In-
Service commencing after receipt of such distribution or
(ii ) such repayment is not made within 2 years from the date such
person is notified in writing that he has once more qualified
as a Participant.
13.06 INDEMNIFICATION. The Employer shall indemnify and hold harmless
the members of the City Council , the Committee and any other per-
..,.f
32 -
sons to whom any fiduciary responsibility with respect to the
Plan is allocated or delegated, from and against any and all
liabilities , costs and expenses incurred by such persons as a
result of any act, or omission to act, in connection with the
performance of their duties, responsibilities and obligations
under the Plan and under ERISA, other than such liabilities,
costs and expenses as may result from the bad faith or criminal
acts of such persons or specifically prohibited by ERISA.
13.07 HEADINGS. Headings in this Plan are inserted for convenience
or reference only and any conflict between such headings and
the text shall be resolved in favor of the text.
13.08 COUNTERPARTS. This Plan may be executed in an original and any
number of counterparts, each of which shall be deemed an original
of one and the same instrument.
13.09 PURPOSE. The Trust, created in the United States by the Em-
ployer, embodies a Retirement Plan for the exclusive benefit of
its Employees or their Beneficiaries and, until after the satis-
faction of all liabilities under the Trust to such Employees
and their Beneficiaries (except as provided in Section 11 .03) ,
no part of the corpus or income shall be used for or diverted to
purposes other than for their exclusive benefit, nor shall the same
revert to the Employer.
- 33 -