[HISTORY: Adopted by the Borough Council
of the Borough of Churchill as indicated in article histories. Amendments
noted where applicable.]
[1]
Editor's Note: This ordinance has an effective
date of 7-15-2006.
The following words and phrases as used in this
Plan shall have the meaning set forth in this article, unless a different
meaning is otherwise clearly required by the context:
As of any given computation date, in the case of a participant who shall have commenced participation in the Plan prior to July 15, 2006, the benefit determined under § 69-4B, calculated on the basis of final monthly average compensation as of the date of determination and multiplied by a fraction, the numerator of which shall be the participant's years of aggregate service determined as of such date, and the denominator of which shall be 20. Notwithstanding anything contained herein to the contrary, in no event shall the fraction exceed one. In the case of a participant who shall have commenced participation in the Plan subsequent to or on July 15, 2006, "accured benefit" shall mean the benefit determined in accordance with § 69-4B, which amount shall be based upon the participant's final monthly average compensation and completed years of aggregate service determined as of such computation date and which shall represent the monthly benefit which would be payable in the normal form as of the participant's attainment of normal retirement age, provided that the participant shall satisfy all requirements pursuant to the terms of the Plan for entitlement to receive such benefit. The accrued benefit shall not exceed the maximum limitation, determined as of the date of computation, provided under § 69-44. All accrued benefits are subject to all applicable limitations, reductions, offsets, and actuarial adjustments provided pursuant to the terms of the Plan prior to the actual payment thereof.
The total amount contributed by any participant to this Plan or its predecessor by way of payroll deduction or otherwise, plus interest credited at 3% per annum. Interest shall be credited in the form of a simple interest rate from the January 1st of the plan year or part thereof during which the contributions were paid, to the first day of the month preceding the date that a distribution of accumulated contributions under § 69-7 or § 69-8B shall be paid or payment of benefits shall commence.
The Municipal Pension Plan Funding Standard and Recovery
Act which was enacted as Act 205 of 1984, as amended, 53 P.S. § 895.101
et seq.
Two forms of payment of equal actuarial present value on
a specified date. The actuarial present value shall be determined
by use of the UP-1984 Mortality Table and 7% interest unless otherwise
specifically provided herein.
The person, partnership, association or corporation which
at any given time is serving as actuary, provided that such actuary
must be an "approved actuary" as defined in the Act.
The total period or periods of a participant's employment
with the employer whether or not interrupted. Notwithstanding the
preceding sentence, should any such participant receive a distribution
of accumulated contributions with respect to the period of employment,
such period of employment shall not be included in aggregate service
thereafter unless, at the commencement of the next period of employment,
the participant repays to the Pension Fund the amount of such withdrawal
with interest. For the purposes of this section, interest shall accrue
as of the date the employee receives a refund of accumulated contributions.
Aggregate service shall be calculated in completed years, months and
days from the date of hire until the date of retirement or other severance.
Any leave of absence granted in writing by the employer for
reasons including, but not limited to, accident, sickness, pregnancy,
or temporary disability, education, training, jury duty or such other
reasons as may necessitate authorized leave from active employment.
The person or entity designated in writing by the participant
to receive any benefits which may be due should the participant die
prior to becoming entitled to a retirement benefit. In the event that
a participant does not designate a beneficiary or the beneficiary
does not survive the participant, the beneficiary shall be the surviving
spouse, or if there is no surviving spouse, the issue, per stirpes,
or if there is no surviving issue, the estate; but if no personal
representative has been appointed, to those persons who would be entitled
to the estate under the intestacy laws of the Commonwealth of Pennsylvania
if the participant had died intestate and a resident of Pennsylvania.
The person designated by the Borough who has the primary
responsibility for the execution of the administrative affairs for
the Plan.
The Internal Revenue Code of 1986, as amended.
The Pension Plan Committee appointed pursuant to the provisions of applicable law to administer the Plan as more fully described herein under § 69-9.
The Commonwealth of Pennsylvania.
The total compensation paid to the participant for active
services rendered as an employee of the employer, excluding any lump-sum
payments such as vacation buyback or sick leave buyback. Compensation
shall be limited on an annual basis to the amount specified for government
plans pursuant to Code Section 401(a)(17), as adjusted under Code
Section 415(d).
The Council of the Borough of Churchill.
The date when a participant is determined by the Plan Administrator
to be incapacitated due to total and permanent disability, or the
date when the participant's employment terminates due to such total
and permanent disability, if later.
For participants hired prior to December 12, 2000, the date
on which the participant has attained a minimum age of 62.
The first day of the month coincident with or next following
the date on which a participant who has attained early retirement
age ceases employment and chooses to commence receipt of retirement
benefits prior to the normal retirement date.
Any full-time salaried individual employed by the employer
(regularly working not less than 40 hours per week during the plan
year), excluding members of the Borough Police Department.
Borough of Churchill, Allegheny County, Pennsylvania.
For the purpose of determining aggregate service:
The period of time for which an employee is
directly or indirectly compensated or entitled to compensation by
the employer for the performance of duties as an employee;
Any period of time for which an employee is
paid a fixed, periodic amount in the nature of salary continuation
payments for reasons other than the performance of duties (such as
vacation, holidays, sickness, entitlement to benefits under worker's
compensation or similar laws), either directly by the employer or
through a program to which the employer has made contributions on
behalf of the employee;
Any period during which an employee is entitled
to disability benefits under this Plan, provided that the employee
returns to employment within three months of the date on which it
is determined that he is no longer totally and permanently disabled
if such determination occurs prior to the participant's normal retirement
date; and
Any period of qualified military service as
determined under the requirements of Chapter 43 of Title 38, United
States Code, provided that the participant returns to employment following
such period of qualified military service, and makes payment to the
Plan in an amount equal to the participant contributions that would
otherwise have been paid to the Plan during such period of qualified
military service. The amount of participant contributions shall be
based upon an estimate of the compensation that would have been paid
to the participant during such period of qualified military service
as determined by the average compensation paid to the participant
during the 12 months immediately preceding the period of qualified
military service. The amount of participant contributions so calculated
must be paid into the Plan before the end of the period that begins
on the date of reemployment and ends on the earlier of the date that
ends the period that has a duration of three times the period of qualified
military service or the date that is five years after the date of
reemployment.
The average of the participant's compensation during the
36 months of employment immediately preceding termination of active
employment. Final monthly average compensation shall exclude for this
purpose any lump-sum or extraordinary payments made which are not
directly attributable to active employment with the employer during
the averaging period such as vacation buyback or sick leave buyback.
Compensation used to determine final monthly average compensation
shall be limited on an annual basis to the amount specified for government
plans in accordance with Code Section 401(a)(17), as adjusted under
Code Section 415(d).
A legal reserve life insurance company authorized to do business
in the Commonwealth of Pennsylvania.
The first day of the month coincident with or next following
the date on which the participant retires from employment, which occurs
after the participant's normal retirement date.
The minimum obligation of the municipality as determined
by the actuary pursuant to the provisions of the Act.
For participants hired prior to December 12, 2000, or on
or after July 15, 2006, the date on which the participant attains
age 65. For all other participants, normal retirement age shall mean
the date on which the participant attains age 65 and completes 20
years of aggregate service.
The first day of the month coincident with or next following
the date on which the participant attains normal retirement age.
A written document prepared in the form specified by the
Plan Administrator. If such notice or election is to be provided by
the employer or the Plan Administrator, it shall be mailed in a properly
addressed envelope, postage prepaid, to the last known address of
the person entitled thereto, on or before the last day of the specified
notice or election period. If such notice or election is to be provided
to the employer or the Plan Administrator, it must be received by
the intended recipient on or before the last day of the specified
notice or election period.
An employee who has met the eligibility requirements to participate in the Plan as provided in § 69-2A and who has not for any reason ceased to be a participant hereunder.
The employee Pension Fund administered under the terms of
this Plan and which shall include all money, property, investments,
policies and contracts standing in the name of the Plan.
The Plan set forth herein, as amended from time to time and
designated as the Borough of Churchill Municipal Employees Pension
Plan.
The Committee or the individual appointed for the purpose
of supervising and administering the provisions of the Plan. In the
event that no such appointment is made, the Plan Administrator shall
be the Council.
The twelve-month period beginning on January 1 and ending
on December 31 of each year.
A retirement annuity or retirement income endowment policy
(or a combination of both) or any other form of insurance contract
or policy which shall be deemed appropriate in accordance with the
provisions of applicable law.
July 15, 2006, the date upon which this amendment and restatement
of the Plan becomes effective.
A condition of physical or mental impairment due to which
a participant is certified by the Social Security Administration as
being eligible for and receiving social security disability benefits.
A.
Eligibility requirements. Each employee shall participate
herein as of the later of the date of hire or the attainment of age
21, provided that all prerequisites to participation under this Plan
shall have been fulfilled, including but not limited to, completion
of all forms required by the Plan Administrator. Each employee who
was a participant in the Plan on the day prior to the restatement
date shall continue to be a participant on and after the restatement
date, subject to the terms and conditions of the Plan as set forth
herein.
B.
Participation requirements. The Council shall furnish the Plan Administrator with written notification of the appointment of any new full-time permanent employee who is eligible for participation hereunder. Each participant hereunder shall be required to make contributions to the Plan, as provided in § 69-3A hereof, and shall execute and complete any enrollment or application forms as required by the Plan Administrator authorizing payroll deduction of such contributions. No employee shall be eligible to participate hereunder until any and all such forms are completed and delivered to the Plan Administrator.
C.
Reemployment. Each person that had previously been an employee in employment and who shall have received a refund of accumulated contributions shall be eligible to participate pursuant to § 69-2A and shall receive credit for prior years of aggregate service upon repayment to the Plan of any amount of accumulated contributions, which had been distributed pursuant to § 69-8B.
D.
Leave of absence. During any leave of absence that
is not an authorized leave of absence, a participant shall be deemed
an inactive participant and shall not earn credit for years of aggregate
service, nor shall any benefits accrue hereunder. If the employee
is not reemployed by the expiration of the leave of absence, participation
in the Plan shall cease on the date on which the leave of absence
commenced.
E.
Change in status. A participant who remains in the
service of the employer but ceases to be an employee eligible for
participation hereunder shall have no further benefit accruals occur
until the individual again qualifies as a participant hereunder eligible
to resume such accrual of benefits.
F.
Designation of beneficiary. Any new, full-time employee
who becomes a participant hereunder shall provide a written notice
in the manner prescribed by the Plan Administrator which designates
a beneficiary at the time participation commences. The participant's
election of any such beneficiary may be rescinded or changed, without
the consent of the beneficiary, at any time, provided the participant
provides the written notice of the changed designation to the Plan
Administrator in the manner prescribed by the Plan Administrator.
Any designation of a beneficiary made in any manner other than one
acceptable to the Plan Administrator shall be null and void and have
no effect under the terms of this Plan.
G.
Recordkeeping. The employer shall furnish the Plan
Administrator with such information as will aid the Plan Administrator
in the administration of the Plan. Such information shall include
all pertinent data on employees for purposes of determining their
eligibility to participate in this Plan.
A.
Participant contributions. Each participant shall
as a requirement of participation pay regular contributions to the
Pension Fund in an amount equal to 5% of the participant's compensation.
Contributions may be reduced below the minimum level prescribed herein
as determined by the Council. Each participant shall complete the
necessary forms to authorize the payment of participant contributions
by way of payroll deduction.
B.
Employer contributions. The actuary, in accordance
with the Act, shall determine the minimum municipal obligation of
the employer. The employer shall pay into the Pension Fund, by annual
appropriations or otherwise, the contributions necessary to satisfy
the minimum municipal obligation. Notwithstanding the foregoing, nothing
contained herein shall preclude the employer from contributing an
amount in excess of the minimum municipal obligation.
C.
State aid. General municipal pension system state
aid, or any other amount of state aid received by the employer in
accordance with the Act from the commonwealth may be deposited into
the Pension Fund governed by this Plan in amounts determined by the
Council, and shall be used to reduce the amount of the minimum municipal
obligation of the employer.
D.
Gifts. The Council is authorized to take by gift,
grant, devise or otherwise any money or property, real or personal,
for the benefit of the Plan and cause the same to be held as a part
of the Pension Fund. The care, management, investment and disposal
of such amounts shall be vested in the Council or its delegate, the
Plan Administrator, subject to the direction of the donor and not
inconsistent with applicable laws and the terms of the Plan.
E.
Employer reversion. At no time shall it be possible for the Plan assets to be used for, or diverted to, any purpose other than for the exclusive benefit of the participants and their beneficiaries, including payment of any reasonable Plan expenses. Notwithstanding the foregoing, any contributions made by the employer may be returned to the employer if the contribution was made due to a mistake and the contribution is returned within one year of the date on which the discovery of the mistaken payment of the contribution was made or reasonably should have been made or the Plan is terminated, as provided in § 69-11.
A.
Normal retirement. Each participant shall be entitled
to a normal retirement benefit after retirement on or after the participant
has attained normal retirement age.
B.
Normal retirement benefit. Each participant who shall become entitled to a benefit pursuant to § 69-4A shall receive a monthly retirement benefit payable in the normal form pursuant to § 69-5A as follows:
(1)
For a participant who commenced participation in the
Plan prior to July 15, 2006, the retirement benefit shall be a monthly
amount equal to 50% of the participant's final monthly average compensation;
or
(2)
For a participant who commenced participation in the
Plan on or after July 15, 2006, the retirement benefit shall be a
monthly amount equal to 1.67% of the participant's final monthly average
compensation multiplied by the participant's years of aggregate service,
not to exceed 50% of the participant's final monthly average compensation.
C.
Late retirement. A participant may continue in employment beyond the attainment of normal retirement age subject to the employer's rules and regulations regarding retirement age. If a participant who has met the requirements of § 69-4A continues in employment beyond normal retirement age, there shall be no retirement benefits paid until employment ceases and the participant's retirement actually begins. The retirement benefit of a participant who continues employment after attainment of normal retirement age shall be calculated in accordance with § 69-4B on the basis of the final monthly average compensation and/or years of aggregate service accumulated as of such participant's actual retirement. Such benefit payments shall commence on the participant's late retirement date.
D.
Early retirement. A participant shall be entitled
to an early retirement benefit after retirement on or after attainment
of early retirement age.
E.
Early retirement benefit. If a participant shall retire
on an early retirement date, the participant shall be entitled to
receive, upon making an election, either a deferred pension benefit
commencing on the normal retirement date equal to the participant's
accrued benefit determined as of the participant's early retirement
date, or an immediate pension benefit commencing as of the participant's
early retirement date equal to the participant's accrued benefit determined
as of the participant's early retirement date, actuarially reduced
for early commencement.
F.
Application for benefit. A participant must complete
and execute an application for benefit on a form and in the manner
prescribed by the Plan Administrator and deliver the said application
to the Plan Administrator at least 30 days prior to the date on which
benefit payments are to commence. Notwithstanding anything contained
herein to the contrary, no retirement benefit payments or any other
benefit payments shall be due or payable on or before the first day
of the month coincident with or next following the date that is 30
days after the date the Plan Administrator receives the application
for benefit.
G.
Cost-of-living adjustment. Any participant who was
an employee prior to July 15, 2006, and subsequently retires entitled
to a vested benefit shall be eligible to receive a cost-of-living
adjustment to the amount of monthly retirement benefit payable to
them. Such cost-of-living adjustment shall be equal to the percentage
increase (not to exceed 3%) in the Consumer Price Index for Urban
Wage Earners and Clerical Workers (CPI-W) from the preceding calendar
year. Such cost-of-living adjustment shall be granted effective as
of each anniversary of the participant's actual retirement date. The
total amount of retirement benefit payment and cost-of-living adjustment
paid to the participant may never exceed 60% of the participant's
final monthly average compensation.
H.
Maximum benefit limitations. Notwithstanding any provision of this Plan to the contrary, no benefit provided under this Plan attributable to contributions of the employer shall exceed, as an annual amount, the amount specified in Code Section 415(b)(1)(A) as adjusted pursuant to Code Section 415(d), assuming the form of benefit shall be a straight life annuity (with no ancillary benefits). The limitations described in this Subsection H shall be governed by the following conditions and definitions:
(1)
Benefits paid or payable in a form other than a straight
life annuity (with no ancillary benefits) or where the employee contributes
to the Plan or makes rollover contributions shall be adjusted on an
actuarially equivalent basis in accordance with applicable regulations
to determine the limitation contained herein;
(2)
In the case of a benefit which commences prior to
the attainment of age 62 by the participant, the limitation herein
shall be adjusted on an actuarially equivalent basis to the amount
determined pursuant to this section commencing at age 62; however,
in the case of a qualified participant (a participant with respect
to whom a period of at least 15 years of service, including applicable
military service, as a full-time employee of a police or fire department
is taken into account in determining the amount of benefit), the limitation
contained herein shall not apply;
(3)
In the case of a benefit which commences after attainment
of age 65 by the participant, the limitation herein shall be adjusted
on an actuarially equivalent basis in accordance with applicable regulations
to the amount determined commencing at age 65;
(4)
Benefits paid to a participant which total less than $10,000 from all defined benefit plans maintained by the employer expressed as an annual benefit shall be deemed not to exceed the limitation of this section provided that the employer has not at any time maintained a defined contribution plan in which the participant has participated; however, in the case of a participant who is not receiving a disability retirement benefit pursuant to § 69-6B or a survivor benefit pursuant to § 69-7C, with fewer than 10 years of participation the limitation expressed in this Subsection H(4) shall be reduced by 1/10 for each year of participation less than 10 but in no event shall this limitation be less than $1,000;
(5)
The limitations expressed herein shall be based upon
plan years for calculation purposes, shall be applied to all defined
benefit plans maintained by the employer as one defined benefit plan
and to all defined contribution plans maintained by the employer as
one defined contribution plan, and shall be applied and interpreted
consistent with Code Section 415 and regulations thereunder as applicable
to government plans in general and this Plan in particular; and
(6)
In the case of a survivor benefit under § 69-7C or a disability retirement benefit under § 69-6B, the adjustment under Subsection H(2) hereof shall not apply and the applicable limitation shall be the limitation contained herein without regard to the age of the benefit recipient.
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Notwithstanding anything contained in this section
to the contrary, the limitations, adjustments, and other requirements
prescribed in this section shall at all times comply with the provisions
of Code Section 415 and the regulations thereunder (as such apply
to governmental plans), the terms of which are specifically incorporated
herein by reference.
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I.
Retired participants. Any participant who shall have retired prior to the restatement date shall not have the benefit altered in any way by the provisions of this amended and restated Plan, except where otherwise expressly provided herein. Such retired participants shall continue to have their benefits governed by the terms of the Plan in effect on the day preceding the restatement date. Any participant who shall have terminated employment and elected to receive a deferred retirement benefit under § 69-8C shall have such benefit determined based upon the provisions of the Plan in effect as of the date of such termination of employment and shall not have the benefit altered by the provisions of this amended and restated Plan.
J.
Limitation of liability. Nothing contained herein
shall obligate the employer, the Plan Administrator, any fiduciary
or any agent or representative of any of the foregoing, to provide
any retirement or other benefit to any participant or beneficiary
which cannot be provided from the assets available in the Pension
Fund, whether such benefits are in pay status or otherwise payable
under the terms of the Plan. The Council retains the right to amend
or terminate this Plan consistent with applicable law at any time,
with or without cause and whether or not such action directly or indirectly
results in the suspension, reduction or termination of any benefit
payable under the Plan or in pay status, and without liability to
any person for any such action.
K.
Personal right of participant. The right to receive
any benefits under this Plan is a personal right of the participant
and shall expire upon the death of the participant. No heir, legatee,
devisee, beneficiary, assignee or other person claiming by or through
a participant shall have any interest in any benefits hereunder unless
clearly and expressly so provided by the terms of this Plan or the
provisions of applicable law. A participant's election, failure to
make an election or revocation of an election hereunder shall be final
and binding on all persons.
A.
Normal form of benefit payment. The normal form of
payment of retirement benefits shall be an annuity payable monthly
for the life of the participant and if the participant shall die at
a time when no other benefit is payable to any beneficiary hereunder
and prior to receipt of annuity payments, the total of which equal
or exceed the value of the participant's accumulated contributions
as of the retirement date, then the value of accumulated contributions
less the total value of annuity payments made shall be paid to the
beneficiary.
B.
Optional forms of benefit payment. The automatic form of payment of retirement benefits shall be the normal form specified in § 69-5A unless a participant elects to receive benefits in some other form as provided herein. A participant who retires under § 69-4A, C or D may elect, by giving written notice to the employer at least 30 days prior to the date retirement benefits payments shall commence, to receive payment in one of the optional forms of payment, which shall be the actuarial equivalent of the normal form. The available optional forms of benefit payment shall be as follows:
(1)
Life annuity with period certain option. In lieu of
receiving a retirement benefit under the normal form, a participant
may elect to convert the benefit to this option which provides for
a retirement benefit payable monthly to the participant until the
death of the participant occurs or for a period certain, whichever
is longer. If the participant shall die before receiving payment of
benefits at least equal to the period certain, then the remainder
of the period certain payments shall be paid as they become due to
a designated beneficiary. The total number of payments made to the
participant and beneficiary shall equal to the number of period certain
payments selected. If the participant shall die after receiving payment
of benefits equal to or greater than the period certain there shall
be no additional payments due hereunder after the participant's death.
The period certain which may be elected shall be 60 months, 120 months
or 180 months.
(2)
Joint and survivor annuity option. In lieu of receiving
a retirement benefit under the normal form, a participant may elect
to convert the benefit to this option which provides a reduced benefit
payable during his life, with the provision that upon the participant's
death, payments shall be continued to the participant's surviving
spouse throughout the remainder of the surviving spouse's lifetime.
The monthly benefit to the surviving spouse shall be equal to either
50%, 66 2/3%, 75% or 100% of the participant's reduced pension
benefit based upon the percentage elected by the participant. If a
participant commences receiving reduced benefits in this form and
the spouse predeceases the participant, then the participant's benefits
shall be continued in the same monthly amount, and no other payments
shall be made to any other person subsequent to the participant's
death.
C.
Commencement of benefits. A participant may elect
to commence receiving distribution of retirement benefit payments
as of the early, normal or late retirement date. A participant must
complete an application for benefits in the manner prescribed by the
Plan Administrator and deliver such application to the Plan Administrator
at least 30 days prior to the date on which benefit payments shall
commence. Notwithstanding anything contained herein to the contrary,
no retirement benefit payments nor any other payments shall be due
or payable on or before the date that is 30 days after the date the
Plan Administrator receives the application for benefits.
D.
Required distributions.
(1)
Notwithstanding any other provision of this Plan,
the entire benefit of any participant who becomes entitled to benefits
prior to death shall be distributed either:
(a)
Not later than the required beginning date; or
(b)
Over a period beginning not later than the required
beginning date and extending over the life of such participant or
over the lives of such participant and a designated beneficiary (or
over a period not extending beyond the life expectancy of such participant,
or the joint life expectancies of such participant and a designated
beneficiary).
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If a participant who is entitled to benefits under this Plan dies prior to the date when the entire interest has been distributed after distribution of the benefits has begun in accordance with Subsection D(1)(b) above, the remaining portion of such benefit shall be distributed at least as rapidly as under the method of distribution being used under Subsection D(1)(b) as of the date of the death.
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(2)
If a participant who is entitled to benefits under
this Plan dies before distribution of the benefit has begun, the entire
interest of such employee shall be distributed within five years of
the death of such employee, unless the following sentence is applicable.
If any portion of the employee's interest is payable to (or for the
benefit of) a designated beneficiary, such portion shall be distributed
over the life of such designated beneficiary (or over a period not
extending beyond the life expectancy of such beneficiary), and such
distributions begin not later than one year after the date of the
employee's death or such later date as provided by regulations issued
by the Secretary of the Treasury, then for purposes of the five-year
rule set forth in the preceding sentence, the benefit payable to the
beneficiary shall be treated as distributed on the date on which such
distributions begin. Provided, however, that notwithstanding the preceding
sentence, if the designated beneficiary is the surviving spouse of
the participant, then the date on which distributions are required
to begin shall not be earlier than the date upon which the employee
would have attained age 70 1/2 and, further provided, if the
surviving spouse dies before the distributions to such spouse begin,
this subparagraph shall be applied as if the surviving spouse were
the employee.
(3)
For purposes of this section, the following definitions
and procedures shall apply:
(a)
"Required beginning date" shall mean April 1 of the
calendar year following the later of the calendar year in which the
employee attains age 70 1/2, or the calendar year in which the
employee retires.
(b)
The phrase "designated beneficiary" shall mean any
individual designated by the employee under this Plan according to
its rules.
(c)
Any amount paid to a child shall be treated as if
it had been paid to the surviving spouse if such amount will become
payable to the surviving spouse upon such child's reaching majority
(or other designated event permitted under regulations issued by the
Secretary of the Treasury).
(d)
For purposes of this section, the life expectancy
of an employee and/or the employee's spouse (other than in the case
of a life annuity) may be redetermined but not more frequently than
annually.
E.
Direct rollovers.
(1)
Notwithstanding any provision of the Plan to the contrary
that would otherwise limit a distributee's election under this section,
a distributee may elect, at the time and in the manner prescribed
by the Plan Administrator, to have any portion of an eligible rollover
distribution paid directly to an eligible retirement plan specified
by the distributee in a direct rollover.
(2)
This Subsection E(2) shall apply to distributions made on or after January 1, 2006. Notwithstanding any provision of the Plan to the contrary that would otherwise limit a distributee's election under this section, if a distribution in excess of $1,000 is made and the distributee does not make an election under Subsection E(1) and does not elect to receive the distribution directly, the Plan Administrator shall make such transfer to an individual retirement plan of a designated trustee or issuer pursuant to § 69-9C(1)(i). The Plan Administrator shall notify the distributee in writing, within a reasonable period of time and as otherwise prescribed by law, that the distribution may be transferred to another individual retirement plan.
(3)
For purposes of this section, the following definitions
shall apply:
(a)
"Eligible rollover distribution" is any distribution
of all or any portion of the balance to the credit of the distributee,
except that an eligible rollover distribution does not include: any
distribution that is one of a series of substantially equal periodic
payments (not less frequently than annually) made for the life (or
life expectancy) of the distributee or the joint lives (or joint life
expectancies) of the distributee and the distributee's designated
beneficiary, or for a specified period of 10 years or more; any distribution
to the extent such distribution is required under Code Section 401(a)(9);
and the portion of any distribution that is not includible in gross
income (determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities). For purposes of
the direct rollover provisions in this section of the Plan, a portion
of a distribution shall not fail to be an eligible rollover distribution
merely because the portion consists of after-tax employee contributions
that are not includible in gross income. However, such portion may
be paid only to an individual retirement account or annuity described
in Section 408(a) or (b) of the Code, or to a qualified defined contribution
plan described in Section 401(a) or 403(a) of the Code that agrees
to separately account for amounts so transferred, including separately
accounting for the portion of such distribution which is includible
in gross income and the portion of such distribution which is not
so includible.
(b)
"Eligible retirement plan" is a qualified trust described
in Code Section 401(a), an individual retirement account described
in Code Section 408(a), an individual retirement annuity described
in Code Section 408(b), an annuity plan described in Code Section
403(a), an annuity contract described in Code Section 403(b), an eligible
plan under Section 457(b) of the Code which is maintained by a state,
political subdivision of a state, or any agency or instrumentality
of a state or political subdivision of a state and which agrees to
separately account for amounts transferred into such plan from this
plan.
(c)
"Distributee" includes an employee or former employee.
In addition, the employee's or former employee's surviving spouse
and the employee's or former employee's spouse or former spouse who
is the alternate payee under a qualified domestic relations order,
as defined in Code Section 414(p), are distributees with regard to
the interest of the spouse or former spouse.
(d)
"Direct rollover" is a payment by the Plan to an eligible
retirement plan specified by the distributee or the Plan Administrator,
if the distributee does not make an election.
F.
Assignment. The pension benefit payments prescribed
herein shall not be subject to attachment, execution, levy, garnishment
or other legal process and shall be payable only to the participant
or designated beneficiary and shall not be subject to assignment or
transfer unless the subject of a domestic relations order, mandated
by a court of competent jurisdiction, that clearly provides for proper
distribution of a portion of the pension benefit payments to an alternate
payee (former spouse of the participant) and does not require any
benefit to be paid in excess of the available earned and accrued under
the Plan.
G.
Nonduplication of benefit. To avoid any duplication
of benefits, a participant who is receiving a retirement benefit under
the Plan and who shall resume employment shall have benefit payments
suspended until the first day of the month coincident with or next
following the date such employment shall cease. Upon resumption of
benefit payments, such participant shall receive the greater of the
amount of the suspended benefit or the amount of benefit based upon
final monthly average compensation and years of aggregate service
as of the date that such period of resumed employment shall cease.
A.
Disability retirement. A participant who has incurred
a total and permanent disability before attaining normal retirement
age shall be entitled to a disability retirement benefit as of the
disability date.
B.
Disability retirement benefit. A participant who shall be entitled to a disability retirement benefit under § 69-6A shall receive a monthly amount equal to 2% of their final monthly average compensation determined as of the disability date and multiplied by years of aggregate service completed prior to the disability date. The disability retirement benefit shall be offset by 20% of any social security disability benefit to which the participant is entitled to for the same injuries.
C.
Payment of disability benefits.
(1)
Such participant shall be entitled to receive a disability retirement benefit payable from the first of the month coincident with or immediately following the participant's disability date and continuing until the earliest of the death of the participant, cessation of total and permanent disability or attainment of normal retirement age (such a participant who attains normal retirement age shall thereafter receive a normal retirement benefit pursuant to § 69-4B).
(2)
A participant who shall fail to return within three months to employment as an employee of the employer upon cessation of total and permanent disability prior to attainment of normal retirement age shall be deemed to have terminated employment as of the disability date and shall not be entitled to any distribution of accumulated contributions pursuant to § 69-8B to the extent that the total amount of disability retirement benefit payments exceeds the value of the participant's accumulated contributions as of the disability date, and shall not be entitled to any other benefits under the Plan on account of any years of aggregate service as of the disability date.
D.
Verification of disability. The Plan Administrator
shall in its sole discretion determine whether a participant shall
have incurred a total and permanent disability. The Plan Administrator
shall rely on the report of a physician acceptable to the Plan Administrator.
E.
Cessation of disability. A participant who is receiving
payment of disability retirement benefits under this Plan must notify
the Plan Administrator of any change which may cause a cessation of
entitlement to receipt of such benefits hereunder. If a participant
fails to provide immediate notice to the Plan Administrator of any
such change in status and continues to receive payment of benefits
hereunder to which the participant is not entitled, then the Plan
may take whatever action is necessary to recover any amount of improperly
paid amounts, including legal action or offsetting such amounts against
any future payments of retirement or other benefits under the Plan,
including the costs of such actions.
A.
Death of participant. Upon the occurrence of the death of a participant, there shall be benefits payable in accordance with the following sections of this § 69-7.
B.
Preretirement death benefit. If a participant shall
die during his or her employment as an employee and prior to eligibility
for commencement of benefits, the participant's beneficiary shall
be entitled to a refund of the participant's accumulated contributions.
The death benefit shall be payable to the participant's beneficiary
and shall only be payable in one cash lump-sum payment as soon as
practicable following the participant's date of death.
C.
Postretirement death benefits. If a participant shall die after retirement, there shall only be a death benefit payable in accord with the form of benefit payment elected pursuant to § 69-5B. If a participant dies before the total benefits paid equal or exceed the amount of his or her accumulated contributions, the beneficiary shall be entitled to the difference in the amount of benefits already paid to the participant and the amount of accumulated contributions, provided no other benefits are due and payable under the Plan.
A.
Rights of terminated employees. A participant who
shall cease to be an employee except as otherwise hereinbefore provided
shall have all interest and rights under this Plan limited to those
contained in the following subsections of this section.
B.
Distribution of accumulated contributions. A participant
whose employment with the employer shall cease for any reason other
than death, retirement or total and permanent disability prior to
completion of at least seven years of aggregate service shall be entitled
to receive a distribution of accumulated contributions. Upon receipt
of such accumulated contributions, said participant and beneficiary
shall not be entitled to any further payments from the Plan.
C.
Deferred vested benefit. A participant who has completed
at least seven years of aggregate service and whose employment with
the employer shall terminate for any reason other than death, retirement
or total and permanent disability prior to attainment of a retirement
age shall be entitled to elect, by giving written notice of such election
to the Plan Administrator within 90 days following the date that the
participant's employment terminated, to receive a deferred vested
benefit. Such a deferred vested benefit shall be in an amount equal
to the participant's accrued benefit as of the date employment terminates
and shall commence as of the first day of the month coincident with
or next following the date on which the participant's normal retirement
age would be attained if the participant continued in employment until
such date.
A.
Plan Administrator. The Plan Administrator may be
the Committee or the individual appointed by the Council who shall
have the power and authority to do all acts and to execute, acknowledge
and deliver all instruments necessary to implement and effectuate
the purpose of this Plan, provided that the Council chooses to delegate
said power and authority. The Plan Administrator may delegate authority
to act on its behalf to any persons it deems appropriate. If a Plan
Administrator is not appointed, the Committee shall be the Plan Administrator.
B.
Pension Committee. The Council may appoint a Pension
Plan Committee to administer the affairs of the Plan. If a Pension
Plan Committee is appointed, the Council shall delegate such authority
as it shall deem appropriate to the Committee. The Committee shall
consist of not more than five members. Each member of the Committee
shall serve in that capacity until the earliest of resignation, death,
removal or otherwise. Each member may be removed at any time, with
or without cause, by the Council. Each member may resign by delivering
written notice to the Council and other members of the Committee.
Vacancies on the Committee shall be filled by the Council; provided,
however, that the remaining members of the Committee shall have full
power to act pending the filling of such vacancies.
C.
Authority and duties of the Plan Administrator.
(1)
The Plan Administrator shall have full power and authority
to do whatever shall, in its judgment, be reasonably necessary for
the proper administration and operation of the Plan. The interpretation
or construction placed upon any term or provision of the Plan by the
Plan Administrator or any action of the Plan Administrator taken in
good faith shall, upon the Council's review and approval thereof,
be final and conclusive upon all parties hereto, whether employees,
participants or other persons concerned. By way of specification and
not limitation and except as specifically limited hereafter, the Plan
Administrator is authorized:
(a)
To construe this Plan;
(b)
To determine all questions affecting the eligibility
of any employee to participate herein;
(c)
To compute the amount and source of any benefit payable
hereunder to any participant or beneficiary;
(d)
To authorize any and all disbursements;
(e)
To prescribe any procedure to be followed by any participant
or other person in filing any application or election;
(f)
To prepare and distribute, in such manner as may be
required by law or as the Plan Administrator deems appropriate, information
explaining the Plan;
(g)
To require from the employer or any participant such
information as shall be necessary for the proper administration of
the Plan;
(h)
To appoint and retain any individual to assist in
the administration of the Plan, including such legal, clerical, accounting
and actuarial services as may be required by any applicable law or
laws; and
(2)
The Plan Administrator shall have no power to add
to, subtract from or modify the terms of the Plan or change or add
to any benefits provided by the Plan, or to waive or fail to apply
any requirements of eligibility for benefits under the Plan. Further,
the Plan Administrator shall have no power to adopt, amend, or terminate
the Plan, to select or appoint any trustee or to determine or require
any contributions to the Plan, said powers being exclusively reserved
to the Council.
D.
Powers and duties of Committee. The Committee may
organize itself in any manner deemed appropriate to effectuate its
purposes hereunder, provided that it shall operate and act by a majority
of its members at the time in office either by vote at a meeting or
in writing without a meeting. The Committee shall receive and disperse
all sums of money placed in the Fund and applicable to the purpose
described herein.
(1)
All checks disbursing money from the Fund shall be
signed by all three of the Committee members.
(2)
The Committee shall use the same depository that the
Borough of Churchill constituted or constitutes at its normal reorganization
meetings.
(3)
The Committee shall be the applicant for contracts
of insurance and/or annuities as may be required from time to time
for the participants and is empowered to execute all forms and documents
as may be required from time to time in the normal operation of the
Plan.
(4)
The Committee may authorize any one of its members
to sign as applicant for insurance contracts and/or annuities.
(5)
The Committee shall pay premiums on contracts of insurance
and/or annuities issued for the participants as they become due.
(6)
The Committee shall keep a record of all income and
disbursements and advise the Council of the financial requirements
of the Plan once each year at least two months prior to the establishment
of the annual budget requirements of the Borough.
(7)
The Committee shall maintain and keep such records
as are necessary for the efficient operation of the Plan or as may
be required by any applicable law, regulation or ruling, and shall
provide for the preparation and filing of such forms, reports or documents
as may be required to be filed with any governmental agency or department
and with the participants or other persons entitled to benefits under
the Plan.
(8)
The Committee is subject to all normal fiduciary duties
imposed upon any trustee by law and the Committee in whole or as individuals
shall act in pursuance of this article as agents of the Borough. All
actions of the Committee must be by majority vote.
E.
Plan Administrator costs. The Plan Administrator shall
serve without compensation for services unless otherwise agreed by
the Council in writing. All reasonable expenses incident to the functioning
of the Plan Administrator, including but not limited to fees of accountants,
counsel, actuaries and other specialists, and other costs of administering
the Plan, may be paid from the Pension Fund upon approval by the Council
to the extent permitted under applicable law and not otherwise paid
by the employer.
F.
Hold harmless. No member of the Council, the Plan
Administrator, the enrolled actuary, nor any other person involved
in the administration of the Plan shall be liable to any person on
account of any act or failure to act which is taken or omitted to
be taken in good faith in performing their respective duties under
the terms of this Plan. To the extent permitted by law, the employer
shall, and hereby does agree to, indemnify and hold harmless the Plan
Administrator and each successor and each of any such individual's
heirs, executors and administrators, and the delegates and appointees
(other than any person, bank, firm or corporation which is independent
of the employer and which renders services to the Plan for a fee)
from any and all liability and expenses, including counsel fees, reasonably
incurred in any action, suit or proceeding to which he is or may be
made a party by reason of being or having been a member, delegate
or appointee of the Plan Administrator, except in matters involving
criminal liability, intentional or willful misconduct. If the employer
purchases insurance to cover claims of a nature described above, then
there shall be no right of indemnification except to the extent of
any deductible amount under the insurance coverage or to the extent
of the amount the claims exceed the insured amount.
G.
Approval of benefits. The Plan Administrator shall
review and approve or deny any application for retirement benefits
within 30 days following receipt thereof or within such longer time
as may be necessary under the circumstances. Any denial of an application
for retirement benefits shall be in writing and shall specify the
reason for such denial.
H.
Appeal procedure. Any person whose application for
retirement benefits is denied, who questions the amount of benefit
paid, who believes a benefit should have commenced which did not so
commence or who has some other claim arising under the Plan ("claimant"),
shall first seek a resolution of such claim under the procedure hereinafter
set forth.
(1)
Any claimant shall file a notice of the claim with
the Plan Administrator, which shall fully describe the nature of the
claim. The Plan Administrator shall review the claim and make an initial
determination approving or denying the claim.
(2)
If the claim is denied in whole or in part, the Plan
Administrator shall, within 90 days (or such other period as may be
established by applicable law) from the time the application is received,
mail notice of such denial to the claimant. Such ninety-day period
may be extended by the Plan Administrator if special circumstances
so require for up to 90 additional days by the Plan Administrator's
delivering notice of such extension to the claimant within the first
ninety-day period. Any notice hereunder shall be written in a manner
calculated to be understood by the claimant and, if a notice of denial,
shall set forth: a) the specific Plan provisions on which the denial
is based; b) an explanation of additional material or information,
if any, necessary to perfect such claim and a statement of why such
material or information is necessary; and c) an explanation of the
review procedure.
(3)
Upon receipt of notice denying the claim, the claimant
shall have the right to request a full and fair review by the Council
of the initial determination. Such request for review must be made
by notice to the Council within 60 days of receipt of such notice
of denial. During such review, the claimant or a duly authorized representative
shall have the right to review any pertinent documents and to submit
any issues or comments in writing. The Council shall, within 60 days
after receipt of the notice requesting such review, (or in special
circumstances, such as where the Council in its sole discretion holds
a hearing, within 120 days of receipt of such notice), submit its
decision in writing to the person or persons whose claim has been
denied. The decision shall be final, conclusive and binding on all
parties, shall be written in a manner calculated to be understood
by the claimant and shall contain specific references to the pertinent
Plan provisions on which the decision is based.
(4)
Any notice of a claim questioning the amount of a
benefit in pay status shall be filed within 90 days following the
date of the first payment which would be adjusted if the claim is
granted, unless the Plan Administrator allows a later filing for good
cause shown.
(5)
A claimant who does not submit a notice of a claim
or a notice requesting a review of a denial of a claim within the
time limitations specified above shall be deemed to have waived such
claim or right to review.
(6)
Nothing contained herein is intended to abridge any
right of a claimant to appeal any final decision hereunder to a court
of competent jurisdiction under 2 Pa.C.S.A. § 752. No decision
hereunder is a final decision from which such an appeal may be taken
until the entire appeal procedure of this § 69-8H of the
Plan has been exhausted.
A.
Operation of the Pension Fund.
(1)
The Council is hereby authorized to hold and supervise
the investment of the assets of the Pension Fund, subject to the provisions
of the laws of the commonwealth and of this Plan and any amendment
thereto.
(2)
The Pension Fund shall be used to pay benefits as
provided in the Plan and, to the extent not paid directly by the employer,
to pay the expenses of administering the Plan pursuant to authorization
by the employer.
(3)
The employer intends the Plan to be permanent and
for the exclusive benefit of its employees. It expects to make the
contributions to the Pension Fund required under the Plan. The employer
shall not be liable in any manner for any insufficiency in the Pension
Fund; benefits are payable only from the Pension Fund, and only to
the extent that there are monies available therein. The Pension Fund
will consist of all funds held by the employer under the Plan, including
contributions made pursuant to the provisions hereof and the investments,
reinvestments and proceeds thereof. The Pension Fund shall be held,
managed, and administered pursuant to the terms of the Plan. Except
as otherwise expressly provided in the Plan, the employer has exclusive
authority and discretion to manage and control the Pension Fund assets.
The employer may, however, appoint a trustee, custodian or investment
manager, at its sole discretion.
B.
Powers and duties of employer. With respect to the
Pension Fund, the employer shall have the following powers, rights
and duties, in addition to those vested in it elsewhere in the Plan
or by law, unless such duties are delegated.
(1)
To retain in cash so much of the Pension Fund as it
deems advisable and to deposit any cash so retained in any bank or
similar financial institution (including any such institution which
may be appointed to serve as trustee hereunder), without liability
for interest thereon.
(2)
To invest and reinvest the principal and income of
the Fund and keep said Fund invested, without distinction between
principal and income, in securities which are at the time legal investments
for fiduciaries under the Pennsylvania Fiduciaries Investment Act,
or as the same may be subsequently modified or amended.
(3)
To sell property held in the Fund at either public
or private sale for cash or on credit at such times as it may deem
appropriate; to exchange such property; to grant options for the purchase
or exchange thereof.
(4)
To consent to and participate in any plan of reorganization,
consolidation, merger, extension or other similar plan affecting property
held in the Fund; to consent to any contract, lease, mortgage, purchase,
sale or other action by any corporation pursuant to any such plan.
(5)
To exercise all conversion and subscription rights
pertaining to property held in the Fund.
(6)
To exercise all voting rights with respect to property
held in the Fund and in connection therewith to grant proxies, discretionary
or otherwise.
(7)
To place money at any time in a deposit bank deemed
to be appropriate for the purposes of this Plan no matter where situated,
including in those cases where a bank has been appointed to serve
as trustee hereunder, the savings department of its own commercial
bank.
(8)
In addition to the foregoing powers, the employer
shall also have all of the powers, rights, and privileges conferred
upon trustees by the Pennsylvania Fiduciaries Investment Act, or as
the same may be subsequently modified or amended, and the power to
do all acts, take all proceedings and execute all rights and privileges,
although not specifically mentioned herein, as the employer may deem
necessary to administer the Pension Fund.
(9)
To maintain and invest the assets of this Plan on
a collective and commingled basis with the assets of other pension
plans maintained by the employer, provided that the assets of each
respective plan shall be accounted for and administered separately.
(10)
To invest the assets of the Pension Fund in any collective
commingled trust fund maintained by a bank or trust company, including
any bank or trust company which may act as a trustee hereunder. In
this connection, the commingling of the assets of this Plan with assets
of other eligible, participating plans through such a medium is hereby
specifically authorized. Any assets of the Plan which may be so added
to such collective trusts shall be subject to all of the provisions
of the applicable declaration of trust, as amended from time to time,
which declaration, if required by its terms or by applicable law,
is hereby adopted as part of the Plan, to the extent of the participation
in such collective or commingled trust fund by the Plan.
(11)
To make any payment or distribution required or advisable
to carry out the provisions of the Plan, provided that, if a trustee
is appointed by the employer, such trustee shall make such distribution
only at the direction of the employer.
(12)
To compromise, contest, arbitrate, enforce or abandon
claims and demands with respect to the Plan.
(13)
To retain any funds or property subject to any dispute
without liability for the payment of interest thereon, and to decline
to make payment or delivery thereof until final adjudication is made
by a court of competent jurisdiction.
(14)
To pay, and to deduct from and charge against the
Pension Fund, any taxes which may be imposed thereon, whether with
respect to the income, property or transfer thereof, or upon or with
respect to the interest of any person therein, which the Fund is required
to pay; to contest, in its discretion, the validity or amount of any
tax, assessment, claim or demand which may be levied or made against
or in respect of the Pension Fund, the income, property or transfer
thereof, or in any matter or thing connected therewith.
(15)
To appoint any persons or firms (including but not
limited to, accountants, investment advisors, counsel, actuaries,
physicians, appraisers, consultants, professional plan administrators
and other specialists), or otherwise act to secure specialized advice
or assistance, as it deems necessary or desirable in connection with
the management of the Fund; to the extent not prohibited by applicable
law, the employer shall be entitled to rely conclusively upon and
shall be fully protected in any action or omission taken by it in
good faith reliance upon, the advice or opinion of such persons or
firms, provided such persons or firms were prudently chosen by the
employer, taking into account the interests of the participants and
Beneficiaries and with due regard to the ability of the persons or
firms to perform their assigned functions.
(16)
To retain the services of one or more persons or firms
for the management of (including the power to acquire and dispose
of) all or any part of the Fund assets, provided that each of such
persons or firms is registered as an investment advisor under the
Investment Advisors Act of 1940, is a bank (as defined in that Act),
or is an insurance company qualified to manage, acquire or dispose
of pension trust assets under the laws of more than one state; in
such event, the employer shall follow the directions of such investment
manager or managers with respect to the acquisition and disposition
of Fund assets, but shall not be liable for the acts or omissions
of such investment manager or managers, nor shall it be under any
obligation to review or otherwise manage any Fund assets which are
subject to the management of such investment manager or managers.
If the employer appoints a trustee, the trustee shall not be permitted
to retain such an Investment Manager except with the express written
consent of the employer.
C.
Common investments. The employer shall not be required
to make separate investments for individual participants or to maintain
separate investments for each participant's account, but may invest
contributions and any profits or gains therefrom in common investments.
D.
Compensation and expenses of appointed trustee. If
a trustee is appointed, the trustee shall be entitled to such reasonable
compensation as shall from time to time be agreed upon by the employer
and the trustee, unless such compensation is prohibited by law. Such
compensation, and all expenses reasonably incurred by the trustee
in carrying out its functions, shall constitute a charge upon the
employer or the Pension Fund, which may be executed at any time after
30 days written notice to the employer. The employer shall be under
no obligation to pay such costs and expenses, and, in the event of
its failure to do so, the trustee shall be entitled to pay the same,
or to be reimbursed for the payment thereof, from the Pension Fund.
E.
Periodic accounting. If a trustee is appointed, the
Pension Fund shall be evaluated annually, or at more frequent intervals,
by the trustee and a written accounting rendered as of each fiscal
year end of the Fund, and as of the effective date of any removal
or resignation of the trustee, and such additional dates as requested
by the employer, showing the condition of the fund and all receipts,
disbursements and other transactions effected by the trustee during
the period covered by the accounting, based on fair market values
prevailing as of such date.
F.
Value of the Pension Fund. All determinations as to
the value of the assets of the Pension Fund, and as to the amount
of the liabilities thereof, shall be made by the employer or its appointed
trustee, whose decisions shall be final and conclusive and binding
on all parties hereto, the participants and beneficiaries and their
estates. In making any such determination, the employer or trustee
shall be entitled to seek and rely upon the opinion of or any information
furnished by brokers, appraisers and other experts, and shall also
be entitled to rely upon reports as to sales and quotations, both
on security exchanges and otherwise as contained in newspapers and
in financial publications.
A.
Amendment of the Plan. The employer may amend this
Plan at any time or from time to time by an instrument in writing
executed in the name of the employer under its municipal seal by officers
duly authorized to execute such instrument and delivered to the Council;
provided, however:
(1)
That no amendment shall deprive any participant or
any beneficiary of a deceased participant of any of the benefits to
which each is entitled under this Plan with respect to contributions
previously made;
B.
Termination of the Plan. The employer shall have the
power to terminate this Plan in its entirety at any time by an instrument
in writing executed in the name of the employer.
C.
Automatic termination of contributions. Subject to
the provisions of the Act governing financially distressed municipalities,
the liability of the employer to make contributions to the Pension
Fund shall automatically terminate upon liquidation or dissolution
of the employer, upon its adjudication as a bankrupt or upon the making
of a general assignment for the benefit of its creditors.
D.
Distribution upon termination.
(1)
In the event of the termination of the Plan, all amounts
of vested benefits accrued by the affected participants as of the
date of such termination, to the extent funded on such date, shall
be nonforfeitable hereunder. In the event of termination of the Plan,
the employer shall direct either: a) that the Plan Administrator continue
to hold the vested accrued benefits of participants in the Pension
Fund in accordance with the provisions of the Plan (other than those
provisions related to forfeitures) without regard to such termination
until all funds have been distributed in accordance with the provisions;
or b) that the Plan Administrator immediately distribute to each participant
an amount equal to the vested accrued benefit to the date.
(2)
If there are insufficient assets in the Pension Fund
to provide for all vested accrued benefits as of the date of Plan
termination, priority shall first be given to the distribution of
any amounts attributable to mandatory or voluntary employee contributions
before assets are applied to the distribution of any vested benefits
attributable to other sources hereunder.
(3)
All other assets attributable to the terminated Plan
shall be distributed and disposed of in accordance with the provisions
of applicable law and the terms of any instrument adopted by the employer
which effects such termination.
E.
Residual assets. If all liabilities to vested participants
and any others entitled to receive a benefit under the terms of the
Plan have been satisfied and there remain any residual assets in the
Pension Fund, such residual assets remaining shall be returned to
the employer insofar as such return does not contravene any provision
of law, and any remaining balance in excess of employer contributions
shall be returned to the commonwealth.
F.
Exclusive benefit rule. In the event of the discontinuance
and termination of the Plan as provided herein, the employer shall
dispose of the Pension Fund in accordance with the terms of the Plan
and applicable law; at no time prior to the satisfaction of all liabilities
under the Plan shall any part of the corpus or income of the Pension
Fund, after deducting any administrative or other expenses properly
chargeable to the Pension Fund, be used for or diverted to purposes
other than for the exclusive benefit of the participants in the Plan,
their beneficiaries or their estates.
A.
Actuarial valuations.
(1)
The Plan's actuary shall perform an actuarial valuation
at least biennially unless the employer is applying or has applied
for supplemental state assistance pursuant to Section 603 of the Act,
whereupon actuarial valuation reports shall be made annually.
(2)
Such biennial actuarial valuation report shall be
made as of the beginning of each plan year occurring in an odd-numbered
calendar year, beginning with the year 1985.
(3)
Such actuarial valuation shall be prepared and certified
by an approved actuary, as such term is defined in the Act.
(4)
The expenses attributable to the preparation of any
actuarial valuation report or investigation required by the Act or
any other expense which is permissible under the terms of the Act
and which are directly associated with administering the Plan shall
be an allowable administrative expense payable from the assets of
the Pension Fund. Such allowable expenses shall include but not be
limited to the following:
(a)
Investment costs associated with obtaining authorized
investments and investment management fees;
(b)
Accounting expenses;
(c)
Premiums for insurance coverage on Fund assets;
(d)
Reasonable and necessary counsel fees incurred
for advice or to defend the Fund; and
(e)
Legitimate travel and education expenses for
Plan officials; provided, however, that the municipal officials of
the employer, in their fiduciary role, shall monitor the services
provided to the Plan to ensure that the expenses are necessary, reasonable
and benefit the Plan; and further provided that the Plan Administrator
shall document all such expenses item by item and, where necessary,
hour by hour.
B.
Duties of Chief Administrative Officer.
(1)
Such actuarial reports shall be prepared and filed
under the supervision of the Chief Administrative Officer.
(2)
The Chief Administrative Officer of the Plan shall
determine the financial requirements of the Plan on the basis of the
most recent actuarial report and shall determine the minimum municipal
obligation of the employer with respect to funding the Plan for any
given plan year. The Chief Administrative Officer shall submit the
financial requirements of the Plan and the minimum municipal obligation
of the employer to the Council annually and shall certify the accuracy
of such calculations and their conformance with the Act.
C.
Benefit plan modifications. Prior to the adoption
of any benefit plan modification by the employer, the Chief Administrative
Officer of the Plan shall provide to the Council a cost estimate of
the proposed benefit plan modification. Such estimate shall be prepared
by an approved actuary, which estimate shall disclose to the Council
the impact of the proposed benefit plan modification on the future
financial requirements of the Plan and the future minimum municipal
obligation of the employer with respect to the Plan.
A.
Employment rights. No employee of the employer nor
anyone else shall have any rights whatsoever against the employer
or the Plan Administrator as a result of this Plan except those expressly
granted hereunder. Participation in this Plan shall not give any right
to any employee to be retained in the employ of the employer, nor
shall interfere with the right of the employer to discharge any employee
and to deal with such employee without regard to the effect such treatment
might have upon participation in this Plan.
B.
Meaning of certain words. For purposes of this Plan,
the masculine gender shall include the feminine gender and the singular
shall include the plural, and vice versa, in all cases wherever the
person or context shall plainly so require. Headings of articles and
sections are inserted only for convenience of reference and are not
to be considered in the construction of the Plan.
C.
Information to be furnished by the employer. The employer
shall furnish to the Plan Administrator (and where applicable, the
trustee) information in the employer's possession as the Plan Administrator
and the trustee shall require from time to time to perform their duties
under the Plan.
D.
Severability of provisions. Should any provisions
of this Plan be held illegal or invalid for any reason, said illegality
or invalidity shall not affect the remaining parts of this Plan, and
the Plan shall be construed and enforced as if said illegal and invalid
provisions had never been inserted herein.
E.
Incapacity of participant. If any participant shall
be physically or mentally incapable of receiving or acknowledging
receipt of any payment of pension benefits hereunder, the Plan Administrator,
upon the receipt of satisfactory evidence that such participant is
so incapacitated and that another person or institution is maintaining
the participant and that no guardian or committee has been appointed
for the participant, may provide for such payment of pension benefits
hereunder to such person or institution so maintaining the participant,
and any such payments so made shall be deemed for every purpose to
have been made to such participant.
F.
Pension Fund for sole benefit of participants. The
income and principal of the Pension Fund are for the sole use and
benefit of the participants covered hereunder, and to the extent permitted
by law, shall be free, clear and discharged from and are not to be
in any way liable for debts, contracts or agreements now contracted
or which may hereafter be contracted, and from all claims and liabilities
now or hereafter incurred by any participant or beneficiary.
G.
Benefits for a deceased participant. If any benefit
shall be payable under the Plan to or on behalf of a participant who
has died, if the Plan provides that the payment of such benefits shall
be made to the participant's estate, and if no administration of such
participant's estate is pending in the court of proper jurisdiction,
then the Plan Administrator, at its sole option, may pay such benefits
to the surviving spouse of such deceased participant, or, if there
is no surviving spouse, to such participant's then-living issue, per
stirpes; provided, however, that nothing contained herein shall prevent
the Plan Administrator from insisting upon the commencement of estate
administration proceedings and the delivery of any such benefits to
a duly appointed executor or administrator.
H.
Assets of the Fund. Nothing contained herein shall
be deemed to give any participant or beneficiary any interest in any
specific property of the Pension Fund or any right except to receive
such distributions as are expressly provided for under the Plan.
I.
Personal liability. Subject to the provisions of the
Act and unless otherwise specifically required by other applicable
laws, no past, present or future officer or agent of the employer
or Plan Administrator shall be personally liable to any participant,
beneficiary or other person under any provision of the Plan.
J.
Construction of document. This Plan may be executed
and/or conformed in any number of counterparts, each of which shall
be deemed an original and shall be construed and enforced according
to the laws of the commonwealth, excepting such commonwealth's choice
of law rules.
[Adopted 5-12-2014 by Ord. No. 720[1]]
[1]
Editor's Note: This ordinance supersedes former Art.
II, Police Pension Plan, adopted 10-14-1997 by Ord. No. 664, amended
in its entirety 2-14-2006 by Ord. No. 695.
The following words and phrases as used in this plan shall have
the meaning set forth in this section, unless a different meaning
is otherwise clearly required by the context:
As of any given date, the benefit determined under section
4.02, calculated on the basis of final monthly average salary as of
the date of determination and multiplied by a fraction, the numerator
of which shall be the participant's aggregate service determined
as of such date and the denominator of which shall be the participant's
projected aggregate service provided that the participant is assumed
to continue in active employment until attainment of normal retirement
age. Notwithstanding anything contained herein to the contrary, in
no event shall the fraction exceed one. In no event, however, shall
the accrued benefit exceed the maximum limitation, determined as of
the date of computation, provided under section 4.09. All accrued
benefits are subject to all applicable limitations, reductions, offsets,
and actuarial adjustments provided pursuant to the terms of the plan
prior to the actual payment thereof. The accrued benefit shall include
any service increment determined pursuant to section 4.04 attributable
to the participant's aggregate service, including time spent
on workers' compensation or leave under the Pennsylvania Heart
and Lung Act, as of the date of determination.
The total amount contributed by any participant to this fund
or its predecessor by way of payroll deduction or otherwise, plus
interest credited at 3% per annum. Interest shall be credited in the
form of a compound interest rate compounded quarterly from the date
on which the contributions were made to the date that a distribution
of accumulated contributions under sections 6.03 and 7.02 shall be
paid or payment of benefits shall commence.
The Municipal Pension Plan Funding Standard and Recovery
Act which was enacted as Act 205 of 1984, as amended, 53 P.S. § 895.101
et seq.
Two forms of payment of equal actuarial present value on
a specified date. The actuarial present value shall be determined
by use of the UP-1984 Mortality Table and interest of 7% unless otherwise
specifically provided herein.
The person, partnership, association or corporation which
at any given time is serving as actuary; provided that such actuary
must be an "approved actuary" as defined in the Act.
The total period or periods of the participant's employment
with the employer whether or not interrupted. Notwithstanding the
preceding sentence, should any such participant receive a distribution
of accumulated contributions with respect to a period of employment,
such period of employment shall not be included in aggregate service
thereafter unless, at the commencement of the next period of employment,
the participant repays to the fund the amount of such distribution
with interest. For purposes of this definition, interest shall accrue
as of the date the employee receives a distribution of accumulated
contributions and shall be computed at the same rate and in the same
manner as described in the definition of "accumulated contributions."
Aggregate service shall be calculated in whole years and completed
months.
The eligible dependent children are registered at an accredited
institution of higher learning and are carrying a minimum course load
of seven credit hours per semester.
The person or entity designated by the participant to receive
a distribution of the participant's accumulated contributions
should the participant die prior to becoming entitled to a retirement
benefit. In the event that a participant does not designate a beneficiary
or the beneficiary does not survive the participant, the beneficiary
shall be the surviving spouse, or if there is no surviving spouse,
the issue, per stirpes, or if there is no surviving issue, the estate;
but if no personal representative has been appointed, to those persons
who would be entitled to the estate under the intestacy laws of the
Commonwealth of Pennsylvania if the participant had died intestate
and a resident of Pennsylvania.
The person designated by the Borough who has the primary
responsibility for the execution of the administrative affairs for
the plan.
The Internal Revenue Code of 1986, as amended.
The Police Pension Committee as determined pursuant to section
8.02.
The Commonwealth of Pennsylvania.
The total remuneration, whether salary or hourly wages paid
to an employee by the employer for services rendered in employment,
including overtime pay, officer in charge rate pay, unused vacation
days pay, unused sick days pay and unused floating holidays pay, and
reported on the employee's form W-2, wage and tax statement.
Compensation shall also include fixed, periodic amounts paid for periods
during which the participant is not actively employed as a member
of the employer's regular full-time police force, which amounts
are paid directly by the employer or through a program to which the
employer has made contributions on behalf of the employee, other than
under this plan (including, without limitation, a workers' compensation
program or payments made under the Pennsylvania Heart and Lung Act).
Compensation shall also include longevity, shift differential and
any lump sum payments made during the thirty-six-month averaging period.
Compensation shall be limited on an annual basis for purposes of the
plan to the amount specified for government plans pursuant to Code
Section 401(a)(17), as adjusted under Code Section 415(d).
The Council of the Borough of Churchill.
The date when a participant is determined by the Plan Administrator
to be incapacitated due to total and permanent disability, or the
date when the participant's employment terminates due to such
total and permanent disability, if later.
Any individual employed by the employer on a regular, full-time
basis as a member of the employer's police force. Full-time shall
be herein defined as 40 hours per week.
The Borough of Churchill, Allegheny County, Pennsylvania.
For the purpose of determining aggregate service:
The period of time for which an employee is directly or indirectly
compensated or entitled to compensation by the employer for the performance
of duties as a police officer;
Any period of time for which an employee is granted an authorized
leave of absence provided that the participant shall pay participant
contributions to the plan in an amount equal to the amount which would
have been paid if the participant continued in active employment unless
Council shall waive the payment of such participant contributions.
Such an authorized leave of absence may be granted for a period of
time for which an employee is paid a fixed, periodic amount in the
nature of salary continuation payments for reasons other than the
performance of duties (such as vacation, holidays, sickness, entitlement
to benefits under workers' compensation or similar laws), either
directly by the employer or through a program to which the employer
has made contributions on behalf of the employee; or a period during
which an employee is entitled to disability benefits under this plan,
provided that the employee returns to employment within three months
of the date on which it is determined that the employee is no longer
totally and permanently disabled if such determination occurs prior
to the date a participant attains normal retirement age; or for any
other reason acceptable to the Council;
Any period of voluntary or involuntary military service with
the armed forces of the United States of America, provided that the
participant has been employed as a regular, full-time member of the
employer's police force for a period of at least six months immediately
prior to the period of military service; and the participant returns
to employment within six months following discharge from military
service or within such longer period during which employment rights
are guaranteed by applicable law or under the terms of a collective
bargaining agreement with the employer;
Any period of voluntary or involuntary military service with
the armed forces of the United States of America not to exceed a total
of 24 months which occurred prior to the date on which a participant
first became employed as an employee of the employer, provided that
the participant shall pay into the plan the required sum as determined
herein for the purchase of such service credit under the plan. The
participant may make application for such purchase of military service
credit at any time prior to retirement or other termination of employment
as an employee of the employer. The participant shall pay an amount
as determined by the actuary based upon the cost to provide the service
credit requested under applicable law; and
Any period of qualified military service as determined under
the requirement of Chapter 43 of Title 38, United States Code, provided
that the participant returns to employment following such period of
qualified military service, and the participant makes payment to the
plan in an amount equal to the required participant contributions,
that would otherwise have been paid to the plan during such period
of qualified military service to pay for benefits derived from participant
contributions. The amount of participant and/or employer contributions
shall be based upon an estimate of the compensation that would have
been paid to the participant during such period of qualified military
service as determined by the average compensation paid to the participant
during the 12 months immediately preceding the period of qualified
military service. The amount of participant contributions calculated
must be paid into the plan before the end of the period that begins
on the date of reemployment and ends on the earlier of the date that
ends the period that has a duration of three times the period of qualified
military service or the date that is five years after the date of
reemployment.
"Employment" shall not mean for the purpose of determining aggregate
service any period of disability for a participant who was disabled
as a result of a non-service-related disability.
The average monthly salary earned by the participant and paid
by the employer during the final 36 months immediately preceding termination
of employment as an employee of the employer. Salary shall include
the employee's total compensation, including, but not limited
to, overtime pay, longevity pay, shift differential pay, workers'
compensation benefits and payment received under the Pennsylvania
Heart and Lung Act.
Final monthly average salary shall be calculated by taking into
account only those periods during which an employee receives salary,
as that term is defined in this definition. Therefore, for example,
the final monthly average salary for a participant who receives disability
benefits from the plan or who is voluntarily or involuntarily in service
in the United States armed forces during the final 36 months of aggregate
service shall be based on the period during which the employee last
received salary (as defined in the preceding paragraph) from the employer.
Compensation used to determine final monthly average salary
shall be limited on an annual basis for the purpose of the plan to
the amount specified for government plans in accordance with Code
Section 401(a)(17), as adjusted under Code Section 415(d).
A legal reserve life insurance company authorized to do business
in the Commonwealth of Pennsylvania.
The fixed, periodic payment for the last month of active
service based on a participant's compensation and final monthly
average salary.
The minimum obligation of the municipality as determined
by the actuary pursuant to the provisions of the Act.
The date on which the participant has completed 25 years
of aggregate service with the employer and has attained age 55.
A written document prepared in the form specified by the
Plan Administrator and delivered as follows: If such notice or election
is to be provided by the employer or the Plan Administrator, it shall
be mailed in a properly addressed envelope, postage prepaid, to the
last known address of the person entitled thereto, on or before the
last day of the specified notice or election period; or, if such notice
or election is to be provided to the employer or the Plan Administrator,
it must be received by the recipient on or before the last day of
the specified notice or election period.
An employee who has met the eligibility requirements to participate in the plan as provided in § 69-23A and who has not for any reason ceased to be a participant hereunder.
The Police Pension Fund administered under the terms of this
plan and which shall include all money, property, investments, policies
and contracts standing in the name of the plan.
The plan set forth herein, as amended from time to time and
designated as the Borough of Churchill Police Pension Plan.
The Committee or the individual appointed for the purpose
of supervising and administering the provisions of the plan. In the
event that no such appointment is made, the Plan Administrator shall
be the Council.
The twelve-month period beginning on January 1 and ending
on December 31 of each year.
A retirement annuity or retirement income endowment policy
(or a combination of both) or any other form of insurance contract
or policy which shall be deemed appropriate in accordance with the
provisions of applicable law.
January 1, 2013, the date upon which this amendment and restatement
of the plan becomes effective.
The first day of the month coincident with or next following
the date on which the participant retires from employment or the first
day of any month thereafter on which the payment of retirement benefits
pursuant to this plan shall commence.
The amount calculated pursuant to § 69-25D on behalf of a participant for each completed year of service in excess of 25 years, not to exceed $100.
A condition of physical or mental impairment due to which a participant is unable to perform the usual and customary duties of a Churchill police officer, which condition is reasonably expected to continue to be permanent for the remainder of the participant's lifetime. Whether a participant is totally and permanently disabled shall be determined by a medical examiner appointed by or acceptable to the Borough. For purposes of this definition and § 69-26, a condition shall not be treated as a total and permanent disability unless such condition is a direct result of and occurs in the line of duty of employment. Therefore, an employee whose physical or mental impairment does not occur in the line of duty or which is the result of alcoholism, addiction to narcotics, perpetration of felonious criminal activity or is willfully self-inflicted, is not entitled to receive disability benefits under the plan.
A.
Eligibility requirements. Each employee who is employed as a regular,
full-time permanent member of the Police Department of the employer
shall participate herein as of the date on which such employee's
employment first commences or recommences provided all prerequisites
to participation under this plan shall have been fulfilled, including,
but not limited to, completion of all forms required by the Plan Administrator.
B.
Notification of Plan Administrator. The Council shall furnish the
Plan Administrator with written notification of the appointment of
any new full-time permanent employee who is eligible for participation
hereunder.
C.
Designation of beneficiary. Any new, full-time employee who becomes
a participant hereunder shall provide a written notice in the manner
prescribed by the Plan Administrator which designates a beneficiary
at the time participation commences. The participant's election
of any such beneficiary may be rescinded or changed, without the consent
of the beneficiary, at any time provided the participant provides
the written notice of the changed designation to the Plan Administrator
in the manner prescribed by the Plan Administrator. Any designation
of a beneficiary made in any manner other than one acceptable to the
Plan Administrator shall be null and void and have no effect under
the terms of this plan.
D.
Change in status. A participant who remains in the service of the
employer but ceases to be an employee eligible for participation hereunder,
or ceases or fails to make any contributions which are required as
a condition of participation hereunder, shall have no further benefit
accruals occur until the individual again qualifies as a participant
hereunder eligible to resume such accrual of benefits.
E.
Recordkeeping. The employer shall furnish the Plan Administrator
with such information as will aid the Plan Administrator in the administration
of the plan. Such information shall include all pertinent data on
employees for purposes of determining their eligibility to participate
in this plan.
A.
Participant contributions. Each participant shall as a requirement
of participation pay regular contributions to the Pension Fund in
an amount equal to 5% of the participant's compensation. Payment
of participant contributions is required for time spent on workers'
compensation or leave under the Pennsylvania Heart and Lung Act. Each
participant shall complete the necessary forms to authorize the payment
of participant contributions by way of payroll deduction.
B.
Reduction of participant contributions. Notwithstanding the preceding Subsection A, if an actuarial study performed by the actuary shows that the condition of the Pension Fund is such that payments into the Pension Fund by participants may be reduced below the minimum percentages prescribed in Subsection A, or may be eliminated, and that if such payments are reduced or eliminated, contributions by the employer will not be required to keep the Pension Fund actuarially sound, the employer may, by ordinance, reduce or eliminate payments into the Pension Fund by participants on an annual basis.
C.
Employer contributions. The Chief Administrative Officer, in accordance
with the Act, shall determine the minimum municipal obligation of
the employer. The employer shall pay into the Pension Fund, by annual
appropriations or otherwise, the contributions necessary to satisfy
the minimum municipal obligation.
D.
State aid. General municipal pension system state aid, or any other
amount of state aid received by the employer from the Commonwealth
in accordance with the Act, may be deposited into the Pension Fund
governed by this plan and shall be used to reduce the amount of the
minimum municipal obligation of the employer.
E.
Gifts. The Council is authorized to take by gift, grant, devise or
otherwise any money or property, real or personal, for the benefit
of the plan and cause the same to be held as a part of the Pension
Fund. The care, management, investment and disposal of such amounts
shall be vested in the Council or its delegate, the Plan Administrator,
subject to the direction of the donor and not inconsistent with applicable
laws and the terms of the plan.
F.
Employer reversion. At no time shall it be possible for the plan assets to be used for, or diverted to, any purpose other than for the exclusive benefit of the participants and their beneficiaries, including payment of any reasonable plan expenses. Notwithstanding the foregoing, any contributions made by the employer may be returned to the employer if the contribution was made due to a mistake and the contribution is returned within one year of the date on which the discovery of the mistaken payment of the contribution was made or reasonably should have been made or the plan is terminated, as provided in § 69-31. In the event that a return of contributions is necessary, the employer will advise all participants why the reversion is being made, the amount of the reversion and when it will occur.
A.
Normal retirement. Each participant shall be entitled to normal retirement
benefits after retirement on or after the participant has attained
normal retirement age.
B.
Normal retirement benefit. Each participant who shall become entitled
to a benefit pursuant to Section 4.01 shall receive a benefit paid
monthly in an amount equal to 50% of the participant's final
monthly average salary as determined herein.
C.
Late retirement. A participant may continue to work beyond the attainment of normal retirement age subject to the employer's rules and regulations regarding retirement age. If a participant who has met the requirements of § 69-25A continues to work beyond normal retirement age, there shall be no retirement benefits paid until employment ceases and retirement begins. The retirement benefit of a participant who retires after attainment of normal retirement age shall be calculated in accordance with § 69-25B on the basis of the final monthly average salary as of such participant's actual retirement date.
D.
Service increment. A participant who shall retire after completion
of at least 25 years of aggregate service may be eligible to receive
a service increment in addition to the normal retirement benefit under
section 4.02.[1] The monthly amount of the service increment shall be equal
to a monthly benefit of $100 for each year of completed service in
excess of 25 years of service, not to exceed a total of $100. The
calculation of such service increment shall include both periods of
time when the participant actively renders service in employment and
time spent on workers' compensation or leave under the Pennsylvania
Heart and Lung Act.
[Amended 4-9-2018 by Ord.
No. 742]
E.
Normal form. The normal form for payment of retirement benefits shall
be a monthly pension benefit payable for the life of the participant.
F.
Payment of benefits. Retirement benefit payments shall be payable
as of the participant's retirement date and the first day of
each month thereafter during the participant's lifetime. A participant
must complete an application for benefit in the manner prescribed
by the Plan Administrator and deliver such application to the Plan
Administrator at least 30 days prior to the date on which benefit
payments shall commence. Notwithstanding anything contained herein
to the contrary, no retirement benefit payments nor any other payments
shall be due or payable on or before the date that is 30 days after
the date the Plan Administrator receives the application for benefits.
Payment of benefits hereunder shall cease as of the date of death
of the participant.
G.
Cost-of-living adjustments. Each participant who shall retire and
commence receipt of retirement benefits hereunder, shall be entitled
to receive a cost-of-living adjustment to the amount of benefits paid
under section 4.02 of the plan. For those participants retiring after
January 1, 1993 with vested benefits but prior to January 1, 2006,
a cost-of-living adjustment of 3% per annum of the participant's
final monthly average salary up to a maximum of 60% of the participant's
final monthly average salary payable as of the anniversary of the
participant's retirement.
(1)
Each participant who shall retire on or after January 1, 2006, shall be granted a cost-of-living adjustment to the participant's retirement benefit, effective as of each January 1 following the date of the original commencement of the participant's retirement benefit payments hereunder. The cost-of-living adjustment may be prorated for the first year. Such cost-of-living adjustment shall be an amount equal to the percentage increase in the annual October Consumer Price Index from Urban Wage Earners and Clerical Workers (CPI-W) during the last year times the amount of retirement benefit payment not including any service increment. In addition thereto, this cost-of-living adjustment shall also apply to a disability retirement benefit under § 69-26B.
(2)
Such cost-of-living adjustment shall not exceed any of the following
limits:
(a)
The percentage increase in the Consumer Price for year in which
the participant was last employed as an employee of the employer;
(b)
The total retirement benefits payable under this plan shall
not exceed 75% of the participant's Final Monthly Average Salary;
(c)
The total Cost of Living Adjustment shall not exceed 30% of
the participant's original retirement benefit under this plan;
and
(d)
The cost-of-living adjustments shall not impair the actuarial
soundness of the Pension Fund.
H.
Retired participants. Any participant who shall have retired prior
to the restatement date shall not have the benefit altered in any
way by the provisions of this amended and restated plan, except where
otherwise expressly provided herein. Such retired participants shall
continue to have their benefits governed by the terms of the plan
in effect on the day preceding the restatement date.
I.
Defined benefit dollar limitation; incorporation of Code Section 415 by reference. Notwithstanding anything contained in this Subsection I to the contrary, the limitations, adjustments, and other requirements prescribed in Subsection I shall at all times comply with the provisions of Code Section 415 and the regulations thereunder (as such apply to governmental plans), the terms of which are specifically incorporated herein by reference. Effective for limitation years beginning on and after July 1, 2007, the plan shall comply with the final regulations issued under Code Section 415.
J.
Maximum benefit limitations. Notwithstanding any provision of this plan to the contrary, no benefit provided under this plan attributable to contributions of the employer shall exceed, as an annual amount, the amount specified in Code Section 415(b)(1)(A) as adjusted pursuant to Code Section 415(d), assuming the form of benefit shall be a straight life annuity (with no ancillary benefits). The limitations described in this Subsection J shall be governed by the following conditions and definitions:
(1)
Benefits paid or payable in a form other than a straight life annuity
(with no ancillary benefits) or where the employee contributes to
the plan or makes rollover contributions shall be adjusted on an actuarially
equivalent basis in accordance with applicable regulations to determine
the limitation contained herein;
(2)
In the case of a benefit which commences prior to the attainment
of age 62 by the participant, the limitation herein shall be adjusted
on an actuarially equivalent basis in accordance with applicable regulations
to the amount determined pursuant to this section commencing at age
62; however, in the case of a qualified participant (a participant
with respect to whom a period of at least 15 years of service, as
a full-time employee of a police or fire department or as a member
of the Armed Forces of the United States is taken into account in
determining the amount of benefit), the limitation contained herein
shall not apply;
(3)
In the case of a benefit which commences after attainment of age
65 by the participant, the limitation herein shall be adjusted on
an actuarially equivalent basis in accordance with applicable regulations
to the amount determined commencing at age 65;
(4)
Benefits paid to a participant which total less than $10,000 from all defined benefit plans maintained by the employer expressed as an annual benefit shall be deemed not to exceed the limitation of this section provided that the employer has not at any time maintained a defined contribution plan in which the participant has participated; however, in the case of a participant who is not receiving a disability retirement benefit pursuant to § 69-26B or a survivor benefit pursuant to § 69-27B, with fewer than 10 years of participation, the limitation expressed in this Subsection J(1) shall be reduced by 1/10 for each year of participation less than 10 but in no event shall this limitation be less than $1,000;
(5)
The limitations expressed herein shall be based upon plan years for
calculation purposes, shall be applied to all defined benefit plans
maintained by the employer as one defined benefit plan and to all
defined contribution plans maintained by the employer as one defined
contribution plan, and shall be applied and interpreted consistent
with Code Section 415 and regulations thereunder as applicable to
government plans in general and this plan in particular;
(7)
For mandatory employee contributions, the rules set forth in Treasury
Regulation 1.415(b)-1(b)(2)(iii) shall apply; and
(8)
Effective for distributions with annuity starting dates beginning
on or after December 31, 2008, notwithstanding any other plan provisions
to the contrary, the applicable mortality table used solely for purposes
of adjusting any benefit or limitation under Section 415(b)(2)(B),
(C), or (D) of the Internal Revenue Code as set forth in the applicable
maximum benefit limitations section of the plan is the applicable
mortality table under Code Section 417(e)(3)(B).
K.
Required distributions.
(1)
Distribution prior to death.
(a)
Notwithstanding any other provision of this plan, the entire
benefit of any participant who becomes entitled to benefits prior
to his death shall be distributed either:
[1]
Not later than the required beginning date; or
[2]
Over a period beginning not later than the required beginning
date and extending over the life of such participant or over the lives
of such participant and a designated beneficiary (or over a period
not extending beyond the life expectancy of such participant, or the
joint life expectancies of such participant and a designated beneficiary).
(b)
If a participant who is entitled to benefits under this plan dies prior to the date when his entire interest has been distributed to him after distribution of his benefits has begun in accordance with Subsection K(1)(a)[2] above, the remaining portion of such benefit shall be distributed at least as rapidly as under the method of distribution being used under Subsection K(1)(a)[2] as of the date of his death.
(2)
If a participant who is entitled to benefits under this plan dies
before distribution of his benefit has begun, the entire interest
of such employee shall be distributed within five years of the death
of such employee, unless the following sentence is applicable. If
any portion of the employee's interest is payable to (or for
the benefit of) a designated beneficiary, such portion shall be distributed
over the life of such designated beneficiary (or over a period not
extending beyond the life expectancy of such beneficiary), and such
distributions begin not later than one year after the date of the
employee's death or such later date as provided by regulations
issued by the Secretary of the Treasury, then for purposes of the
five-year rule set forth in the preceding sentence, the benefit payable
to the beneficiary shall be treated as distributed on the date on
which such distributions begin; provided, however, that notwithstanding
the preceding sentence, if the designated beneficiary is the surviving
spouse of the participant, then the date on which distributions are
required to begin shall not be earlier than the date upon which the
employee would have attained age 70 1/2 and, further provided,
if the surviving spouse dies before the distributions to such spouse
begin, this subsection shall be applied as if the surviving spouse
were the employee.
(3)
For purposes of this section, the following definitions and procedures
shall apply:
(a)
"Required beginning date" shall mean April 1 of the calendar
year following the later of the calendar year in which the employee
attains age 70 1/2, or the calendar year in which the employee
retires.
(b)
The phrase "designated beneficiary" shall mean any individual
designated by the employee under this plan according to its rules.
(c)
Any amount paid to a child shall be treated as if it had been
paid to the surviving spouse if such amount will become payable to
the surviving spouse upon such child's reaching maturity (or
other designated event permitted under regulations issued by the Secretary
of the Treasury).
(d)
For purposes of this section, the life expectancy of an employee
and/or the employee's spouse (other than in the case of a life
annuity) may be redetermined but not more frequently than annually.
(4)
General rules. The requirements of this Subsection K will take precedence over any inconsistent provisions of the plan. All distributions required under this Subsection K will be determined and made in accordance with Section 401(a)(9) of the Internal Revenue Code and the Treasury regulations thereunder, and the employer's good faith interpretation of such Code and regulations.
L.
Direct rollovers.
(1)
This Subsection L(1) applies to distributions made on or after December 31, 2001. Notwithstanding any provision of the plan to the contrary that would otherwise limit a distributee's election under this section, a distributee may elect, at the time and in the manner prescribed by the Plan Administrator, to have any portion of an eligible rollover distribution that is equal to at least $500 paid directly to an eligible retirement plan specified by the distributee in a direct rollover.
(2)
This Subsection L(2) shall apply to distributions made on or after January 1, 2006. Notwithstanding any provision of the plan to the contrary that would otherwise limit a distributee's election under this section, if a distribution in excess of $1,000 is made and the distributee does not make an election under Subsection L(1) and does not elect to receive the distribution directly, the Plan Administrator shall make such transfer to an individual retirement plan of a designated trustee or issuer pursuant to Section 8.03(i). The Plan Administrator shall notify the distributee, in writing, within a reasonable period of time and as otherwise prescribed by law, that the distribution may be transferred to another individual retirement plan.
(3)
DIRECT ROLLOVER
DISTRIBUTEE
ELIGIBLE RETIREMENT PLAN
ELIGIBLE ROLLOVER DISTRIBUTION
For purposes of this section, the following definitions shall apply:
A payment by the plan to the eligible retirement plan specified
by the distributee or the Plan Administrator, if the distributee does
not make an election.
Includes an employee or former employee. In addition, the
employee's or former employee's surviving spouse and the
employee's or former employee's spouse or former spouse
who is the alternate payee under a qualified domestic relations order,
as defined in Code Section 414(p), are distributees with regard to
the interest of the spouse or former spouse.
A qualified trust described in Code Section 401(a), an individual
retirement account described in Code Section 408(a), an individual
retirement annuity described in Code Section 408(b), an annuity plan
described in Code Section 403(a), an annuity contract described in
Code Section 403(b), an eligible deferred compensation plan described
in Code Section 457(b), which is maintained by a state, political
subdivision of a state, and any agency or instrumentality of a state
or political subdivision of a state and which agrees to separately
account for amounts transferred into such plan from this plan.
Any distribution of all or any portion of the balance to
the credit of the distributee, except that an eligible rollover distribution
does not include: any distribution that is one of a series of substantially
equal periodic payments (not less frequently than annually) made for
the life or (life expectancy) of the distributee or the joint lives
(or joint life expectancies) of the distributee and the distributee's
designated beneficiary, or for a specified period of 10 years or more;
any distribution to the extent such distribution is required under
Code Section 401(a)(9); and the portion of any distribution that is
not includible in gross income (determined without regard to the exclusion
for net unrealized appreciation with respect to employer securities).
For purposes of the direct rollover provisions in this section of
the plan, a portion of the distribution shall not fail to be an eligible
rollover distribution merely because the portion consists of after-tax
employee contributions that are not includible in gross income. However,
such portion may only be paid to an individual retirement account
or annuity described in Section 408(a) or (b) of the Code, or to a
qualified defined contribution plan described in Section 401(a) or
403(a) of the Code that agrees to separately account for amounts so
transferred, including separately accounting for the portion of such
distribution which is includible in gross income and the portion which
is not includible.
(4)
Effective January 1, 2008, direct rollovers may be made to a Roth
IRA described in Section 408A of the Internal Revenue Code to the
extent that the applicable requirements of Code Section 408A are satisfied
with respect to any direct rollover to such Roth IRA.
(5)
This subsection applies to distributions made on or after January
1, 2010. Notwithstanding any provision of the plan to the contrary
that would otherwise limit a nonspouse beneficiary's election
under this section, a nonspouse beneficiary may elect to have any
portion of a plan distribution (that is payable to such nonspouse
beneficiary due to a participant's death) paid in a direct trustee-to-trustee
transfer to an individual retirement account described in Code Section
408(a) or to an individual retirement annuity described in Section
408(b) (other than an endowment contract) that has been established
for the purposes of receiving the distribution on behalf of such nonspouse
beneficiary. For these purposes, a "nonspouse beneficiary" is an individual
who is a designated beneficiary (as defined by Section 401(a)(9)(E)
of the Internal Revenue Code) of a participant and who is not the
surviving spouse of such participant.
M.
Assignment. The pension benefit payments prescribed herein shall
not be subject to attachment, execution, levy, garnishment or other
legal process and shall be payable only to the participant or designated
beneficiary and shall not be subject to assignment or transfer unless
the subject of a domestic relations order, mandated by a court of
competent jurisdiction, that clearly provides for proper distribution
of a portion of the pension benefit payments to an alternate payee
(former spouse of the participant) and does not require any benefit
to be paid in excess of the available earned and accrued under the
plan.
N.
Personal right of participant. The right to receive any benefits
under this plan is a personal right of the participant and shall expire
upon the death of the participant. No heir, legatee, devisee, beneficiary,
assignee or other person claiming by or through a participant shall
have any interest in any benefits hereunder unless clearly and expressly
so provided by the terms of this plan or the provisions of applicable
law. A participant's election, failure to make an election or
revocation of an election hereunder shall be final and binding on
all persons.
O.
Nonduplication of benefit. To avoid any duplication of benefits,
a participant who is receiving a retirement benefit under the plan
and who shall resume employment shall have benefit payments suspended
until the first day of the month coincident with or next following
the date such employment shall cease. Upon resumption of benefit payments,
such participant shall receive the greater of the amount of the suspended
benefit or the amount of benefit based upon final monthly average
salary and aggregate service as of the date that such period of resumed
employment shall cease.
P.
Limitation of liability. Nothing contained herein shall obligate
the employer, the Plan Administrator, any fiduciary or any agent or
representative of any of the foregoing, to provide any retirement
or other benefit to any participant or beneficiary which cannot be
provided from the assets available in the pension fund, whether such
benefits are in pay status or otherwise payable under the terms of
the plan. The Council retains the right to amend or terminate this
plan consistent with applicable law at any time with or without cause
and whether or not such action directly or indirectly results in the
suspension, reduction or termination of any benefit payable under
the plan or in pay status, and without liability to any person for
any such action.
Q.
Retirement window/enhanced service increment. A participant who is eligible for a normal retirement benefit and who elects to retire between October 10, 2016, and February 15, 2017, will be eligible for a service Increment benefit as described in this Subsection Q instead of the amount described in Subsection D. The service increment payable to a participant who retires pursuant to this section shall be equal to $70 for each completed full year of aggregate service in excess of 25 years, up to a maximum monthly benefit of $350. Any participant who does not retire hereunder prior to February 16, 2017, shall have forever waived any opportunity to do so and shall have their service increment (if eligible) determined in accordance with Subsection D.
[Added 10-10-2016 by Ord.
No. 732]
A.
Disability retirement. A participant who shall incur a total and
permanent disability shall be entitled to a disability retirement
benefit as of the disability date.
B.
Disability retirement benefit. A participant who shall be entitled to a disability retirement benefit under Subsection A, whose total and permanent disability is the direct result of injuries incurred in the line of duty of employment shall be eligible for a disability retirement benefit equal to 50% of the member's salary at the time the disability was incurred as defined pursuant to § 69-22, provided that any member who receives benefits for the same injuries under social security disability shall have the participant's disability benefits offset or reduced by the amount of such benefits. In addition thereto, the cost-of-living adjustment as set forth in § 69-25G shall apply to said disability benefit.
C.
Payment of disability benefits.
(1)
Disability payments shall be made monthly as of the first day of
each month, commencing as of the first day of the month coincident
with or immediately following the participant's disability date
and continuing until the death of the participant.
(2)
A participant who shall fail to return within three months to employment
as an employee of the employer upon cessation of total and permanent
disability prior to attainment of normal retirement age shall be deemed
to have terminated employment as of the disability date, and shall
not be entitled to any distribution of accumulated contributions pursuant
to Section 7.02 to the extent that the total amount of disability
payments exceeds the value of the participant's accumulated contributions
as of the disability date.
D.
Verification of disability. The Plan Administrator shall in its sole
discretion determine whether a participant shall have incurred a total
and permanent disability. The Plan Administrator shall rely on the
report of a physician acceptable to the Plan Administrator. If the
Plan Administrator shall determine that a participant who is totally
and permanently disabled has recovered sufficiently to resume active
employment as a police officer or if a participant refuses to undergo
a medical examination as directed by the Plan Administrator (such
a medical examination may not be required more frequently than once
in any given twelve-month period), the payment of disability retirement
benefits shall cease.
E.
Cessation of disability. A participant who is receiving payment of
disability retirement benefits under this plan must notify the Plan
Administrator of any change which may cause a cessation of entitlement
to receipt of such benefits hereunder. If a participant fails to provide
immediate notice to the Plan Administrator of any such change in status
and continues to receive payment of benefits hereunder to which the
participant is not entitled, then the plan may take whatever action
is necessary to recover any amount of improperly paid amounts, including
legal action or offsetting such amounts against any future payments
of retirement or other benefits under the plan, including the costs
of such actions.
A.
Death benefit. Upon the occurrence of the death of a participant, there shall be benefits payable in accord with the following subsections of this § 69-27.
B.
Survivor benefit.
(1)
If a participant shall die after commencement of retirement or disability benefit payments or after the participant is eligible to retire under § 69-25A and before retirement benefit payments commence, a survivor benefit shall be paid to the surviving spouse of the participant, or, if no spouse survives or the spouse survives and subsequently dies, then the child or children of the participant under the age of 18, or if attending college, under or attaining the age of 23 in an amount equal to 50% of the participant's normal retirement benefit to which the participant was receiving or would have been receiving had the participant been retired at the time of death.
(2)
The survivor benefit shall be paid to the surviving spouse until
the date of death of the surviving spouse. Upon the death of the surviving
spouse, the survivor benefit shall be paid monthly in equal shares
to the surviving children of the deceased participant until the death
or attainment of age 18 of each child or if attending college, under
or attaining the age of 23. The shares payable to the surviving children
shall be adjusted as each child ceases to be eligible to receive a
share of the benefit hereunder.
(3)
Such survivor benefit shall be paid in lieu of any distribution of
accumulated contributions to which the deceased participant may have
been entitled; provided, however, that in the event the amount of
the participant's accumulated contributions exceeds the amount
of survivor benefit payable in accordance with the preceding, then
such participant's death benefit shall be equal to the amount
of the participant's accumulated contributions.
C.
Death of participant prior to survivor benefit eligibility. If a participant shall die before payment of a benefit has commenced and without eligibility for payment of a survivor benefit under Subsection B, the beneficiary shall be eligible to receive a distribution in an amount equal to the accumulated contributions of the participant as of the date of death of the participant. If the participant has received disability benefits hereunder, the amount of the distribution of accumulated contributions shall be reduced by the amount of disability retirement benefits which have been paid hereunder.
D.
Veterans' survivor benefits. Notwithstanding any other provision
of the plan to the contrary, in the case of the death of a participant
who dies on or after January 1, 2007, while performing qualified military
service [as defined in Code Section 414(u)], the survivors of the
participant are entitled to any additional benefits under the plan
(if any) had the participant resumed and then terminated employment
on account of death.
A.
Rights of terminated employees. A participant who shall cease to
be an employee except as otherwise hereinbefore provided shall have
all interest and rights under this plan limited to those contained
in the following subsections of this section.
B.
Distribution of accumulated contributions. A participant whose employment
with the employer shall terminate for any reason other than retirement,
death or total and permanent disability, prior to attainment of normal
retirement age, shall be entitled to receive a distribution of accumulated
contributions. Upon receipt of such accumulated contributions, said
participant and beneficiary shall not be entitled to any further payments
from the plan.
C.
Deferred vested benefit. A participant who has completed at least 12 years of aggregate service and whose employment with the employer shall terminate for any reason other than retirement, death or total and permanent disability prior to attainment of normal retirement age shall be entitled to elect to receive a deferred vested benefit in lieu of a distribution of accumulated contributions under § 69-28B. The election hereunder shall be made within 90 days of the date on which the participant's employment shall cease or shall be forever waived and a distribution pursuant to § 69-28B shall occur. Such a deferred vested benefit shall be in an amount equal to the participant's accrued benefit as of the date employment terminates and shall commence after application pursuant to § 69-25F as of the day of the month on which the participant's normal retirement age would be attained if the participant continued in employment until such date.
D.
Forfeiture. To the extent permissible under the Code, rights under
this plan shall be subject to forfeiture pursuant to the act of July
8, 1978, (P.L. 752, No. 140), known as the Public Employee Pension
Forfeiture Act.
A.
Plan Administrator. The Plan Administrator shall be the Committee
or the individual appointed by the Council who shall have the power
and authority to do all acts and to execute, acknowledge and deliver
all instruments necessary to implement and effectuate the purpose
of this plan. The Plan Administrator may delegate authority to act
on its behalf to any persons it deems appropriate. If a Plan Administrator
is not appointed, the Council shall be the Plan Administrator.
B.
Police Pension Committee. The Council may appoint a Police Pension
Committee to administer the affairs of the plan. The Council shall
delegate such authority as it shall deem appropriate to the Committee.
The Committee, if one is appointed, shall consist of no more than
five members, one member shall be a police officer selected by the
police officers of the Borough of Churchill, one member shall be a
member of Council selected by the Council and one member shall be
the Plan Administrator. Each member of the Committee shall serve in
that capacity until the earliest of resignation, death, removal or
otherwise. Each member may resign by delivering written notice to
the Council and other members of the Committee. Vacancies on the Committee
shall be filled in the same manner as the position was originally
filled by the Council; provided, however, that the remaining members
of the Committee shall have full power to act pending the filling
of such vacancies.
C.
Authority and duties of the Plan Administrator. The Plan Administrator
shall have full power and authority to do whatever shall, in its judgment,
be reasonably necessary for the proper administration and operation
of the plan. The interpretation or construction placed upon any term
or provision of the plan by the Plan Administrator or any action of
the Plan Administrator taken in good faith shall, upon the Council's
review and approval thereof, be final and conclusive upon all parties
hereto, whether employees, participants or other persons concerned.
(1)
By way of specification and not limitation and except as specifically
limited hereafter, the Plan Administrator is authorized:
(a)
To construe this plan;
(b)
To determine all questions affecting the eligibility of any
employee to participate herein;
(c)
To compute the amount and source of any benefit payable hereunder
to any participant or beneficiary;
(d)
To authorize any and all disbursements;
(e)
To prescribe any procedure to be followed by any participant
and/or other person in filing any application or election;
(f)
To prepare and distribute, in such manner as may be required
by law or as the Plan Administrator deems appropriate, information
explaining the plan;
(g)
To require from the employer or any participant such information
as shall be necessary for the proper administration of the plan;
(h)
To appoint and retain any individual to assist in the administration
of the plan, including such legal, clerical, accounting and actuarial
services as may be required by any applicable law or laws; and
(2)
The Plan Administrator shall have no power to add to, subtract from
or modify the terms of the plan or change or add to any benefits provided
by the plan, or to waive or fail to apply any requirements of eligibility
for benefits under the plan. Further, the Plan Administrator shall
have no power to adopt, amend, or terminate the plan, to select or
appoint any Trustee or to determine or require any contributions to
the plan, said powers being exclusively reserved to the Council.
D.
Police Pension Committee organization. The Committee may organize
itself in any manner deemed appropriate to effectuate its purposes
hereunder, subject to the following:
(1)
The Committee shall act by a majority of its members at the time
in office and such action may be taken either by vote at a meeting
or in writing without a meeting.
(2)
The Committee shall, from time to time, appoint such agents as it
may deem advisable.
(3)
The Committee may, from time to time, authorize any one or more of
its members to execute any document or documents including any application,
request, certificate, notice, consent, waiver or direction and shall
notify the Council, in writing, of the name or names of the member
or members so authorized. In the absence of a designation, the president
shall be deemed to be so authorized. Any trustee or other fiduciary
appointed hereunder shall accept and be fully protected in relying
upon any document executed by the designated member or members (or
the president in the absence of a designation) as representing a valid
action by the Committee until the Committee shall file with such fiduciary
a written revocation of such designation.
(4)
The Committee or its delegate, shall maintain and keep such records
as are necessary for the efficient operation of the plan or as may
be required by any applicable law, regulation or ruling and shall
provide for the preparation and filing of such forms or reports as
may be required to be filed with any governmental agency or department
and with the participants and/or other persons entitled to benefits
under the plan but only to the extent that the Council shall delegate
such duties and responsibilities to the Committee.
E.
Plan Administrator costs. The Plan Administrator shall serve without
compensation for services unless otherwise agreed by the Council in
writing. All reasonable expenses incident to the functioning of the
Plan Administrator, including but not limited to fees of accountants,
counsel, actuaries and other specialists and other costs of administering
the plan, may be paid from the pension fund upon approval by the Council
to the extent permitted under applicable law and not otherwise paid
by the employer.
F.
Hold harmless. No member of the Council, the Plan Administrator,
the enrolled actuary, nor any other person involved in the administration
of the plan shall be liable to any person on account of any act or
failure to act which is taken or omitted to be taken in good faith
in performing their respective duties under the terms of this plan.
To the extent permitted by law, the employer shall, and hereby does
agree to, indemnify and hold harmless the Plan Administrator and each
successor and each of any such individual's heirs, executors
and administrators, and the delegates and appointees (other than any
person, bank, firm or corporation which is independent of the employer
and which renders services to the plan for a fee) from any and all
liability and expenses, including counsel fees, reasonably incurred
in any action, suit or proceeding to which he is or may be made a
party by reason of being or having been a member, delegate or appointee
of the Plan Administrator, except in matters involving criminal liability,
intentional or willful misconduct. If the employer purchases insurance
to cover claims of a nature described above, then there shall be no
right of indemnification except to the extent of any deductible amount
under the insurance coverage or to the extent of the amount the claims
exceed the insured amount.
G.
Approval of benefits. The Plan Administrator shall review and approve
or deny any application for retirement benefits within 30 days following
receipt thereof or within such longer time as may be necessary under
the circumstances. Any denial of an application for retirement benefits
shall be in writing and shall specify the reason for such denial.
H.
Appeal procedure. Any person whose application for retirement benefits
is denied, who questions the amount of benefit paid, who believes
a benefit should have commenced which did not so commence or who has
some other claim arising under the plan ("claimant"), shall first
seek a resolution of such claim under the procedure hereinafter set
forth.
(1)
Any claimant shall file a notice of the claim with the Plan Administrator
which shall fully describe the nature of the claim. The Plan Administrator
shall review the claim and make an initial determination approving
or denying the claim.
(2)
If the claim is denied in whole or in part, the Plan Administrator
shall, within 90 days (or such other period as may be established
by applicable law) from the time the application is received, mail
notice of such denial to the claimant. Such ninety-day period may
be extended by the Plan Administrator if special circumstances so
require for up to 90 additional days by the Plan Administrator's
delivering notice of such extension to the claimant within the first
ninety-day period. Any notice hereunder shall be written in a manner
calculated to be understood by the claimant and, if a notice of denial,
shall set forth the specific plan provisions on which the denial is
based; an explanation of additional material or information, if any
necessary to perfect such claim and a statement of why such material
or information is necessary; and an explanation of the review procedure.
(3)
Upon receipt of notice denying the claim, the claimant shall have
the right to request a full and fair review by the Council of the
initial determination. Such request for review must be made by notice
to the Council within 60 days of receipt of such notice of denial.
During such review, the claimant or a duly authorized representative
shall have the right to review any pertinent documents and to submit
any issues or comments in writing. The Council shall, within 60 days
of receipt of the notice requesting such review, (or in special circumstances,
such as where the Council in its sole discretion holds a hearing,
within 120 days of receipt of such notice), submit its decision, in
writing, to the person or persons whose claim has been denied. The
decision shall be final, conclusive and binding on all parties, shall
be written in a manner calculated to be understood by the claimant
and shall contain specific references to the pertinent plan provisions
on which the decision is based.
(4)
Any notice of a claim questioning the amount of a benefit in pay
status shall be filed within 90 days following the date of the first
payment which would be adjusted if the claim is granted unless the
Plan Administrator allows a later filing for good cause shown.
(5)
A claimant who does not submit a notice of a claim or a notice requesting
a review of a denial of a claim within the time limitations specified
above shall be deemed to have waived such claim or right to review.
(6)
Nothing contained herein is intended to abridge any right of a claimant to appeal any final decision hereunder to a court of competent jurisdiction under 2 Pa.C.S.A. § 752. No decision hereunder is a final decision from which such an appeal may be taken until the entire appeal procedure of this § 69-29H of the plan has been exhausted.
A.
Operation of the pension fund.
(1)
The Council is hereby authorized to hold and supervise the investment
of the assets of the pension fund, subject to the provisions of the
laws of the Commonwealth and of this plan and any amendment thereto.
The pension fund shall be used to pay benefits as provided in the
plan and, to the extent not paid directly by the employer, to pay
the expenses of administering the plan pursuant to authorization by
the employer.
(2)
The employer intends the plan to be permanent and for the exclusive
benefit of its employees. It expects to make the contributions to
the pension fund required under the plan. The employer shall not be
liable in any manner for any insufficiency in the pension fund; benefits
are payable only from the Pension Fund, and only to the extent that
there are monies available therein.
(3)
The pension fund will consist of all funds held by the employer under
the plan, including contributions made pursuant to the provisions
hereof and the investments, reinvestments and proceeds thereof. The
pension fund shall be held, managed, and administered pursuant to
the terms of the plan. Except as otherwise expressly provided in the
plan, the employer has exclusive authority and discretion to manage
and control the pension fund assets. The employer may, however, appoint
a trustee, custodian and/or investment manager, at its sole discretion.
B.
Powers and duties of employer. With respect to the pension fund,
the employer shall have the following powers, rights and duties, in
addition to those vested in it elsewhere in the plan or by law, unless
such duties are deleted.
(1)
To retain in cash so much of the Pension Fund as it deems advisable
and to deposit any cash so retained in any bank or similar financial
institution (including any such institution which may be appointed
to serve u trustee hereunder), without liability for interest thereon.
(2)
To invest and reinvest the principal and income of the fund and keep
said fund invested, without distinction between principal and income,
in securities which are at the time legal investments for fiduciaries
under the Pennsylvania Fiduciaries Investment Act, or as the same
may be subsequently modified or amended.
(3)
To sell property held in the fund at either public or private sale
for cash or on credit at such times as it may deem appropriate; to
exchange such property; to grant options for the purchase or exchange
thereof.
(4)
To consent to and participate in any plan of reorganization, consolidation,
merger, extension or other similar plan affecting property held in
the fund; to consent to any contract, lease, mortgage, purchase, sale
or other action by any corporation pursuant to any such plan.
(5)
To exercise all conversion and subscription rights pertaining to
property held in the fund.
(6)
To exercise all voting rights with respect to property held in the
fund and in connection therewith to grant proxies, discretionary or
otherwise.
(7)
To place money at any time in a deposit bank deemed to be appropriate
for the purposes of this plan no matter where situated, including
in those cases where a bank has been appointed to serve as trustee
hereunder, the savings department of its own commercial bank.
(8)
In addition to the foregoing powers, the employer shall also have
all of the powers, rights, and privileges conferred upon trustees
by the Pennsylvania Fiduciaries Investment Act, or as the same may
be subsequently modified or amended, and the power to do all acts,
take all proceedings and execute all rights and privileges, although
not specifically mentioned herein, as the employer may deem necessary
to administer the pension fund.
(9)
To maintain and invest the assets of this plan on a collective and
commingled basis with the assets of other pension plans maintained
by the employer, provided that the assets of each respective plan
shall be accounted for and administered separately.
(10)
To invest the assets of the Pension Fund in any collective commingled
trust fund maintained by a bank or trust company, including any bank
or trust company which may act as a trustee hereunder. Accordingly,
the commingling of the assets of this plan with assets of other eligible,
participating plans through such a medium is hereby specifically authorized.
Any assets of the plan which may be added to such collective trusts
shall be subject to all of the provisions of the applicable declaration
of trust, as amended from time to time, which declaration, if required
by its terms or by applicable law, is hereby adopted as put of the
plan, to the extent of the participation in such collective or commingled
trust fund by the plan.
(11)
To make any payment or distribution required or advisable to carry
out the provisions of the plan, provided that if a trustee is appointed
by the employer, such trustee shall make such distribution only at
the direction of the employer.
(12)
To compromise, contest, arbitrate, enforce or abandon claims and
demands with respect to the plan.
(13)
To retain any funds or property subject to any dispute without liability
for the payment of interest thereon, and to decline to make payment
or delivery thereof until final adjudication is made by a court of
competent jurisdiction.
(14)
To pay, and to deduct from and charge against the pension fund, any
taxes which may be imposed thereon, whether with respect to the income,
property or transfer thereof, or upon or with respect to the interest
of any person therein, which the fund is required to pay; to contest,
in its discretion, the validity or amount of any tax, assessment,
claim or demand which may be levied or made against or in respect
of the pension fund, the income, property or transfer thereof, or
in any matter or thing connected therewith.
(15)
To appoint any persons or firms (including but not limited to, accountants,
investment advisors, counsel, actuaries, physicians, appraisers, consultants,
professional plan administrators and other specialists), or otherwise
act to secure specialized advise or assistance, as it deems necessary
or desirable in connection with the management of the fund; to the
extent not prohibited by applicable law, the employer shall be entitled
to rely conclusively upon and shall be fully protected in any action
or omission taken by it in good faith reliance upon the advice or
opinion of such persons or firms, provided such persons or firms were
prudently chosen by the employer, taking into account the interests
of the participants and beneficiaries and with due regard to the ability
of the persons or firms to perform their assigned functions.
(16)
To retain the services of one or more persons or firms for the management
of (including the power to acquire and dispose of) all or any part
of the fund assets, provided that each of such persons or firms is
registered as an investment advisor under the Investment Advisors
Act of 1940, is a bank (as defined in that act), or is an insurance
company qualified to manage, acquire or dispose of pension trust assets
under the laws of more than one state; in such event, the employer
shall follow the directions of such investment manager or managers
with respect to the acquisition and disposition of fund assets, but
shall not be liable for the acts or omissions of such investment manager
or managers, nor shall it be under any obligation to review or otherwise
manage any fund assets which are subject to the management of such
investment manager or managers. If the employer appoints a trustee,
the trustee shall not be permitted to retain such an investment manager
except with the express written consent of the employer.
C.
Common investments. The employer shall not be required to make separate
investments for individual participants or to maintain separate investments
for each participant's account, but may invest contributions
and any profits or gains therefrom in common investments.
D.
Compensation and expenses of appointed trustee. If a trustee is appointed,
the trustee shall be entitled to such reasonable compensation as shall
from time to time be agreed upon by the employer and the trustee,
unless such compensation is prohibited by law. Such compensation,
and all expenses reasonably incurred by the trustee in carrying out
its functions, shall constitute a charge upon the employer or the
pension fund, which may be executed at any time after 30 days written
notice to the employer. The employer shall be under no obligation
to pay such costs and expenses, and, in the event of its failure to
do so, the trustee shall be entitled to pay the same, or to be reimbursed
for the payment thereof, from the pension fund.
E.
Periodic accounting. If a trustee is appointed, the pension fund
shall be evaluated annually, or at more frequent intervals, by the
trustee and a written accounting rendered as of each fiscal year end
of the fund, and as of the effective date of any removal or resignation
of the trustee, and such additional dates as requested by the employer,
showing the condition of the Fund and all receipts, disbursements
and other transactions effected by the trustee during the period covered
by the accounting, based on fair market values prevailing as of such
date.
F.
Value of the pension fund. All determinations as to the value of
the assets of the pension fund, and as to the amount of the liabilities
thereof, shall be made by the employer or its appointed trustee, whose
decisions shall be final and conclusive and binding on all parties
hereto, the participants and beneficiaries and their estates. In making
any such determination, the employer or trustee shall be entitled
to seek and rely upon the opinion of or any information furnished
by brokers, appraisers and other experts, and shall also be entitled
to rely upon reports as to sales and quotations, both on security
exchanges and otherwise as contained in newspapers and in financial
publications.
A.
Amendment of the plan. The employer may amend this plan at any time
or from time to time by an instrument, in writing, executed in the
name of the employer under its municipal seal by officers duly authorized
to execute such instrument and delivered to the Council; provided,
however:
(1)
That no amendment shall deprive any participant or any beneficiary
of a deceased participant of any of the benefits to which he is entitled
under this plan with respect to contributions previously made;
B.
Termination of the plan. The employer shall have the power to terminate
this plan in its entirety at any time by an instrument, in writing,
executed in the name of the employer.
C.
Automatic termination contributions. Subject to the provisions of
the Act governing financially distressed municipalities, the liability
of the employer to make contributions to the Pension Fund shall automatically
terminate upon liquidation or dissolution of the employer, upon its
adjudication as a bankrupt or upon the making of an actual assignment
for the benefit of its creditors.
D.
Distribution upon termination.
(1)
In the event of the termination of the plan, all amounts of vested
benefits accrued by the affected participants as of the date of such
termination, to the extent funded on such date, shall be nonforfeitable
hereunder. In the event of termination of the plan, the employer shall
direct either that the Plan Administrator continue to hold the vested
accrued benefits of participants in the pension fund in accordance
with the provisions of the plan (other than those provisions related
to forfeitures) without regard to such termination until all funds
have been distributed in accordance with the provisions; or that the
Plan Administrator immediately distribute to each participant an amount
equal to the vested accrued benefit to the date.
(2)
If there are insufficient assets in the pension fund to provide for
all vested accrued benefits as of the date of plan termination, priority
shall first be given to the distribution of any amounts attributable
to mandatory or voluntary employee contributions before assets are
applied to the distribution of any vested benefits attributable to
other sources hereunder.
(3)
All other assets attributable to the terminated plan shall be distributed
and disposed of in accordance with the provisions of applicable law
and the terms of any instrument adopted by the employer which effects
such termination.
E.
Residual assets. If all liabilities to vested participants and any
others entitled to receive a benefit under the terms of the plan have
been satisfied and there remain any residual assets in the pension
fund, such residual assets remaining shall be returned to the employer
insofar as such return does not contravene any provision of law, and
any remaining balance, in excess of employer contributions, shall
be returned to the Commonwealth.
F.
Exclusive benefit rule. In the event of the discontinuance and termination
of the plan as provided herein, the employer shall dispose of the
pension fund in accordance with the terms of the plan and applicable
law; at no time prior to the satisfaction of all liabilities under
the plan shall any part of the corpus or income of the Pension Fund,
after deducting any administrative or other expenses properly chargeable
to the Pension Fund, be used for or diverted to purposes other than
for the exclusive benefit of the participants in the plan, their beneficiaries
or their estates.
A.
Actuarial valuations.
(1)
The plan's actuary shall perform an actuarial valuation at least
biennially unless the employer is applying or has applied for supplemental
state assistance pursuant to Section 603 of the Act, whereupon actuarial
valuation reports shall be made annually.
(2)
Such biennial actuarial valuation report shall be made as of the
beginning of each plan year occurring in an odd-numbered calendar
year, beginning with the year 1985.
(3)
Such actuarial valuation shall be prepared and certified by an approved
actuary, as such term is defined in the Act.
(4)
The expenses attributable to the preparation of any actuarial valuation
report or investigation required by the Act or any other expense which
is permissible under the terms of the Act and which are directly associated
with administering the plan shall be an allowable administrative expense
payable from the assets of the pension fund. Such allowable expenses
shall include but not be limited to the following:
(a)
Investment costs associated with obtaining authorized investments
and investment management fees;
(b)
Accounting expenses;
(c)
Premiums for insurance coverage on fund assets;
(d)
Reasonable and necessary counsel fees incurred for advice or
to defend the fund; and
(e)
Legitimate travel and education expense for plan officials;
provided, however, that the municipal officials of the employer, in
their fiduciary role, shall monitor the services provided to the plan
to ensure that the expenses are necessary, reasonable and benefit
the plan; and further provided, that the Plan Administrator shall
document all such expenses item by item, and where necessary, hour
by hour.
B.
Duties of Chief Administrative Officer. Such actuarial reports shall
be prepared and filed under the supervision of the Chief Administrative
Officer. The Chief Administrative Officer of the plan shall determine
the financial requirements of the plan on the basis of the most recent
actuarial report and shall determine the minimum municipal obligation
of the employer with respect to funding the plan for any given plan
year. The Chief Administrative Officer shall submit the financial
requirements of the plan and the minimum municipal obligation of the
employer to the Council annually and shall certify the accuracy of
such calculations and their conformance with the Act.
C.
Benefit plan modifications. Prior to the adoption of any benefit
plan modification by the employer, the Chief Administrative Officer
of the plan shall provide to the Council a cost estimate of the proposed
benefit plan modification. Such estimate shall be prepared by an approved
actuary, which estimate shall disclose to the Council the impact of
the proposed benefit plan modification on the future financial requirements
of the plan and the future minimum municipal obligation of the employer
with respect to the plan.
[1]
Editor's Note: See 53 P.S. § 895.101 et seq.
A.
Employment rights. No employee of the employer nor anyone else shall
have any rights whatsoever against the employer or the Plan Administrator
as a result of this plan except those expressly granted hereunder.
Participation in this plan shall not give any right to any employee
to be retained in the employ of the employer, nor shall interfere
with the right of the employer to discharge any employee and to deal
with such employee without regard to the effect such treatment might
have upon participation in this plan.
B.
Meaning of certain words. For purposes of this plan, the masculine
gender shall include the feminine gender and the singular shall include
the plural, and vice versa, in all cases wherever the person or context
shall plainly so require. Headings of articles and sections are inserted
only for convenience of reference and are not to be considered in
the construction of the plan.
C.
Construction of document. This plan may be executed and/or conformed
in any number of counterparts, each of which shall be deemed an original
and shall be construed and enforced according to the laws of the Commonwealth,
excepting such Commonwealth's choice of law rules.
D.
Information to be furnished by the employer. The employer shall furnish
to the Plan Administrator (and where applicable, the trustee) information
in the employer's possession as the Plan Administrator and the
trustee shall require from time to time to perform their duties under
the plan.
E.
Severability of provisions. In case any provisions of this plan shall
be held illegal or invalid for any reason, said illegality or invalidity
shall not affect the remaining parts of this plan, and the plan shall
be construed and enforced as if said illegal and invalid provisions
had never been inserted therein.
F.
Incapacity of participant. If any participant shall be physically
or mentally incapable of receiving or acknowledging receipt of any
payment of pension benefits hereunder, the Plan Administrator, upon
the receipt of satisfactory evidence that such participant is so incapacitated
and that another person or institution is maintaining him, may provide
for such payment of pension benefits hereunder to such person or institution
so maintaining him, and any such payments so made shall be deemed
for every purpose to have been made to such participant.
G.
Liability of officers of the Plan Administrator and/or employer.
Subject to the provisions of the Act and unless otherwise specifically
required by other applicable laws, no past, present or future officer
of the employer shall be personally liable to any participant, beneficiary
or other person under any provision of the plan.
H.
Assets of the fund. Nothing contained herein shall be deemed to give
any participant or beneficiary any interest in any specific property
of the pension fund or any right except to receive such distributions
as are expressly provided for under the plan.
I.
Pension fund for sole benefit of participants. The income and principal
of the pension fund are for the sole use and benefit of the participants
covered hereunder, and to the extent permitted by law, shall be free,
clear and discharged from and are not to be in any way liable for
debts, contracts or agreements, now contracted or which may hereafter
be contracted, and from all claims and liabilities now or hereafter
incurred by any participant or beneficiary.
J.
Benefits for a deceased participant. If any benefit shall be payable
under the plan to or on behalf of a participant who has died, if the
plan provides that the payment of such benefits shall be made to the
participant's estate, and if no administration of such participant's
estate is pending in the court of proper jurisdiction, then the Plan
Administrator, at its sole option, may pay such benefits to the surviving
spouse of such deceased participant, or, if there is no surviving
spouse, to such of the participant's then living issue, per stirpes;
provided, however, that nothing contained herein shall prevent the
Plan Administrator from insisting upon the commencement of estate
administration proceedings and the delivery of any such benefits to
a duly appointed executor or administrator.
