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CCR1994233COMMON COUNCIL - CITY OF MUSKEG0 RESOLUTION #233-94 APPROVAL OF RESTATED CITY OF MUSKEG0 PENSION PLAN AND TRUST BE IT RESOLVED that the Common Council of the City of Muskego, upon the recommendation of the Finance Committee, does hereby approve the City of Muskego Pension Plan and Trust as restated effective January 1, 1989. BE IT FURTHER RESOLVED that the Mayor and Clerk are authorized to sign said Pension Plan and Trust on behalf of the City of Muskego and as Trustees. DATED THIS 8TH DAY OF NOVEMBER , 1994. SPONSORED BY: FINANCE COMMITTEE Ald. Patrick A. Patterson Ald. Edwin P. Dumke Ald. David J. Sanders This is to certify that this is a true and accurate copy of Resolution #233-94 which was adopted by the Common Council of the City of Muskego. 11/94 jmb c THE CITY OF MUSKEG0 PENSION PLAN AND TRUST RESTATED EFFECTIVE JANUARY 1,1989 TABLE OF CONTENTS PAGE ARTICLE I: DEFINITIONS ..................................... 1 ARTICLE 11: ELIGIBILITY AND PARTICIPATION .................... 4 ARTICLE 111: CONTRIBUTIONS ................................. 5 ARTICLE W: INVESTMENT OF CONTRIBUTIONS .................... 6 ARTICLE V: VALUATION OF ASSETS ............................ 7 ARTICLE VI: NORMAL PENSION BENEFITS ........................ 8 ARTICLE VII: BENEFICIARY ................................. 12 ARTICLE VIII: TERMINATION OF EMPLOYMENT ................... 13 ARTICLE E: BREAKS IN EMPLOYMENT ......................... 15 ARTICLE X: PLAN ADMINISTRATION 16 ARTICLE XI: RIGHT TO ALTER. AMEND OR REVOKE ............... 19 ARTICLE XII: PROVISIONS WITH RESPECT TO THE TRUST ........... 20 ARTICLE XIII: PROVISIONS RELATING TO INSURANCE COMPANIES .... 23 ARTICLE XlV: MISCELLANEOUS PROVISIONS ..................... 24 SCHEDULEA ............................................ 27 ........................... : : PREFACE THIS AGREEMENT, hereby made and entered into this day of , 1994, by and between the City of Muskego (herein referred to as the "Employer") and the Mayor of the City of Muskego and the City Clerk of the City of Muskego (herein collectively referred to as the "Trustee"). WITNESSETH: WHEREAS, the Employer heretofore established a money purchase pension plan and trust effective January 1, 1968 (hereinafter called the "Effective Date") known as the City of Muskego Pension Trust in recognition of the contributions made to its successful operation by its employees for the exclusive benefit of its eligible employees, and which shall hereinafter be known as the City of Muskego Pension Plan and Trust (the "Plan"); and WHEREAS, the Plan was previously amended and restated in its entirety effective January 1, 1987; and WHEREAS, changes in the governing law have since occurred which necessitate further amendment of the Plan; and WHEREAS, under the terms of the Plan, the Employer has the ability to amend the Plan, provided the Trustee joins in such amendment if the provisions of the Plan affecting the Trustee are amended; : NOW, THEREFORE, effective January 1, 1989, except as otherwise provided, the Employer and the Trustee, in accordance with the provisions of the Plan pertaining to amendments thereof, hereby amend the Plan in its entirety and restate the Plan to provide as ARTICLE I DEFINITIONS 1.01. "Account" shall mean, with respect to each Participant, the value of the account maintained on behalf of a Participant to which Employer contributions are made from time to time under this Plan and Trust. 1.02. "Age" shall mean, as determined with respect to any date, the age at nearest birthday on such date. 1.03. "Beneficiary" shall mean the person or persons entitled to receive any amount payable pursuant to this Plan and Trust upon the death of a Participant. 1.04. "Compensation" shall mean, for an Employee paid on an hourly basis, the total of his basic weekly wage payments from the Employer, including all amounts paid for overtime. "Compensation" shall mean, for an Employee paid on a salary basis, the total of his basic salary In all cases, compensation shall include vacation and sick pay, but shall not include bonuses, if any, non-taxable fringe benefits or contributions made on behalf of any Participant under this plan or any other Employee benefit plan of the Employer. For all purposes of the Plan and notwithstanding any of the above, annual Compensation for any Participant in excess of Two Hundred Thousand Dollars ($200,000). as adjusted by the Secretary of the Treasury, shall be disregarded for Plan Years commencing prior to January 1, 1994. If the applicable period for determination of Compensation for the Plan is fewer than twelve months, then the adjusted $200,000 limit shall be prorated based on the number of months in the applicable period. In determining the Compensation of a Participant for the purposes of the $200,000 limit, the rules of Code section 414(q)(6) shall apply, except that in applying such rules, the term "family" shall include only the spouse of the participant and any lineal descendants of the participant who have not attained age 19 before the close of the year. If as a result of the application of such rules the adjusted $200,000 limitation is exceeded, then the limitation shall be prorated among the affected individuals in proportion to each such individual's Compensation as determined under this section prior to the application of this limitation. Effective with the Plan Year beginning January 1, 1994, the $200,000 limitation described above shall be reduced to $150,000, and as may be adjusted thereafter by the Secretary of the Treasury. 1.05. "Effective Date" shall mean January 1, 1968. 1.06. "Employee" shall mean any person who is employed by the Employer for not less than twenty (20) hours per week, and for more than five (5) months in any calendar year. Neither elected officials of the Employer nor employees covered under the Wisconsin Retirement Fun or any other retirement plan provided by the Employer shall constitute Employees for the purposes of this trust. -1- Effective January 1, 1993, "Employee" shall mean (1) any person whose employment by the Employer is governed by the collective bargaining agreement between the Employer and the City Hall and Library Unit of Muskego Area Public Employees Local 2414 Affiliated With the District Council No. 40 of the American Federation of State, County and Municipal Employees, AFL-CIO and (2) any other person who is employed by the Employer for not less than twenty (20) hours per week. The term "Employee" excludes individuals who work less than five (5) months per calendar year, elected officials, and employees who are covered by any other retirement plan sponsored by the Employer, including the Wisconsin Retirement Fund. 1.07. "Employer" shall mean the City of Muskego, a municipal corporation of the State of Wisconsin. 1.08. "Entry Date" shall mean January 1 of each year. 1.09. "Forfeiture" shall mean that portion of a Participant's Account that is not vested, and occurs on the earlier of (a) the distribution of the entire vested portion of a Participant's Account, or (b) the last day of the Plan Year in which the Participant incurs a break in Employment pursuant to Article IX. 1.10. "Insurance Company'' shall mean any legal reserve life insurance company licensed to do business in one or more states of the United States. 1.11. "Insurance Contract" shall mean a life insurance, annuity or variable annuity contract or any combination thereof, including both individual and group contracts issued by an insurer, 1.12. "Normal Retirement Date" shall mean the Entry Date on which the Participant is age 65. 1.13. "Participant" shall mean an Employee who becomes a participating Employee under this trust as provided in Article 11. 1.14. "Plan" shall mean the Plan and Trust Agreement embodied in this instrument and any amendments or supplements thereto and shall be known as the City of Muskego Pension Plan and Trust. 1.15. "Plan Administrator" shall be the Employer. 1.16. "Plan Year" shall mean the twelve consecutive month period beginning on January 1st ending on December 31st of each year. 1.17. "Trust Fund" shall mean and include all cash, securities, contracts, and other property, real, personal, or mixed at any time and from time to time held by the Trustees without distinguishing between principal and income. -2 - : 1.18. "Trustee" shall mean the Mayor of the City of Muskego and the City Clerk of the City of Muskego who shall serve as co-Trustees, and any named Successor Trustee, who shall be referred to herein in the singular as "Trustee." 1.19. "Year of Service" for vesting purposes under this Plan shall mean a period of service as a Participant based on the Participant's actual period of employment from the beginning to the end of a Plan Year, Effective January 1, 1993, "Year of Service" for vesting purposes under this Plan shall mean a period of service as a Participant based on the Participant's actual period of employment from the beginning to the end of a Plan Year. For individuals whose employment is governed by the collective bargaining agreement between the Employer and the City Hall and Library Unit of Muskego Area Public Employees Local 2414 Affiliated With the District Council No. 40 of the American Federation of State, County and Municipal Employees, AFL-CIO, and who become eligible to participate under the Plan after their initial Date of Hue due to an increase in hours to 20 or more per week, "Year of Service" for vesting purposes shall include periods of service from the individual's adjusted seniority date. -3- ARTICLE I1 ELIGIBILITY AND PARTICIPATION 2.01. Elieible EmDlovee. An Employee shall become eligible to participate in this Plan and Trust on the first Entry Date on which he meets both of the following requirements: (a) Service Reauirement. He shall have been an Employee continuously throughout the period of one year immediately preceding such Entry Date. For the purpose of determining eligibility, continuity of service shall not be deemed to be interrupted by the absence of an Employee with the consent of the Employer, or during a term of active duty in the armed forces of the United States or of any states thereof, for the duration of a national emergency or a state of war and for ninety (90) days thereafter, or for such longer period during which his employment rights are protected by law. However, no Employee shall become a Participant earlier than the first Entry Date on or next following his return from such absence. (b) Aee Reouirement. His age shall be not less than 18 years. 2.02. Notification of Elieibility. At least fifteen (15) days, but not more than forty-five (45) days, before each Entry Date, the Plan Administrator shall notify each person who will become an eligible Employee for the first time on such Entry Date of the fact of such eligibility and shall give him an opportunity to become a Participant. 2.03. ADDlication for ParticiDation. Every eligible Employee who desires to become a Participant shall signify his acceptance of the terms and conditions of this Plan and Trust by executing a written application on a form provided for the purpose by the Plan Administrator and shall execute such additional application forms as may be required by an Insurance Company designated by the Plan Administrator, 2.04. Failure to Make Timelv ADDlication. If an eligible Employee shall not have performed all acts required of hun for participation in this Plan and Trust within sixty (60) days after the date on which the Plan Administrator shall have notified him of his eligibility, he may not become a Participant prior to the first Entry Date thereafter, preceding which he shall have performed such acts, and then only provided he is an eligible Employee. 2.05. Special Entrv Date. Only with respect to Employees who satisfy the eligibility requirements of this Article I1 between January 1, 1987, and March 8, 1988, an extra Entry Date will be provided on July 1 during such time period. -4- T ? ARTICLE 111 CONTRIBUTIONS 3.01. In General. Subject to the right of the Employer to alter, amend, or terminate the trust, the Employer shall contribute the amount, reduced by any forfeitures, designated in Section 3.02. All amounts contributed by the employer shall be made for the exclusive benefit of the Participants and Beneficiaries of their estates and in no event shall any contribution by the Employer or income therefrom revert to the Employer except as provided in Section 3.05. 3.02. Amount of Contribution, The amount of the Employer’s contribution shall be the amount on behalf of each participating Employee called for in separate written agreements then in effect between the Employer and its Employees. Such contributions shall be as shown in Schedule A attached hereto. Schedule A will be amended from time to time as the amount of the Employer’s contribution changes, pursuant to written agreement with its employees. 3.03. Effect of Forfeitures. Forfeitures shall be used to reduce the Employer’s contributions under Section 3.02. 3.04. Timine of Contribution, The Employer shall pay the contribution for each Plan Year to the Trustee within the time prescribed by law, 3.05. Reversions for Mistake of Fact. In no event shall any contribution by the Employer or income on such contribution revert to the Employer except that any contribution made because of a mistake of fact may be returned. 3.06. Section 415 Maximum Annual Additions. The Maximum Annual Additions pursuant to Section 415 of the Internal Revenue Code credited to a Participant’s accounts under this and any other defined contribution plan maintained by the Employer for any Plan Year shall equal the lesser of: (1) $30,000 (or, if greater, one-fourth of the dollar limitation in effect under Code Section 415(b)(l)(A) as adjusted by the Secretary of the Treasury) or (2) twenty-five percent (25%) of the Participant’s Compensation (as defined in this Article) for such Plan Year. The Plan shall also comply with all other limitations set forth in Section 415 of the Internal Revenue Code. If, as a result of allocations performed under the terms of this Plan, a reasonable error in estimating a participant’s Compensation, or other facts and circumstances to which Treas. Reg. 1.415-6(b)(6) shall be applicable, the Annual Additions under this Plan would cause the Maximum Annual Additions to be exceeded for any Participant, such Excess Amounts shall be shall be held in an Excess Annual Additions Suspense Account. Such Excess Amounts shall be used in the next Plan Year (and succeeding Plan Years, if necessary) to reduce Employer contributions for that Participant if that Participant is covered by the Plan as of the end of the Plan Year. If the Participant is not covered by the Plan as of the end of the Plan Year, Excess Amounts shall be allocated and reallocated to all Participants in the Plan before any Employer contributions which would constitute Annual Additions are made to the Plan for such Plan Year (and succeeding Plan Years, if necessary). The Excess Annual Additions Suspense Account shall not share in any earnings or losses of the Trust Fund. Excess Amounts may not be distributed to Participants or Former Participants, other than as set forth in sub (A) above. -5 - ARTICLE lV INVESTMENT OF CONTRIBUTIONS 4.01. Standard of Care. The Trustee shall receive, hold, invest, and reinvest all contributions and monies of this Trust Fund and shall exercise the judgment and care under the circumstances then prevailing, which individuals of prudence, discretion, and intelligence familiar with such matters exercise in a like situation and shall diversify such investments to minimize the risk of large losses. 4.02. Scooe of Investments. The Trustee is authorized and empowered to invest and reinvest the principal and income, in real or personal property, including but not limited to, any common or preferred stocks, bonds, notes, mortgages, trust certificates, mutual funds, Insurance Contracts, and pooled accounts of a bank or trust company maintained exclusively for Qualified Plans. In making such investments or reinvestments, the Tmsree has wide latitude in the selection of investments and shall not be restricted to securities or other property of a character authorized or required by applicable state law for trust investments. The Trustee may keep whatever portion of the Trust Fund in cash or cash equivalents as it may from time to time deem to be in the best interest of the Participants. -6- 0 0 0 ARTICLE V VALUATION OF ASSETS 5.01. Particiuant Accounts. The Plan Administrator shall maintain an Account for each Participant (including any terminated Participant who receives a distribution of an amount less than his vested accrued benefit). The total value of a Participant’s Account shall be determined for each Plan Year and shall include the value of the Participant’s share in the Trust Fund and contributions accrued but not yet made, on behalf of the Participant for the Plan Year, 5.02. Allocation of Earnines and Losses. The allocation of net earnings and losses of the trust fund shall be allocated on a pro rata basis based on each Participant’s Account balance at the end of each Plan Year. 5.03. Valuation of Trust Fund. The Trustee shall determine as of the end of the Plan Year the net value of the Trust Fund and convey this information to the Plan Administrator, In determining the net value, the Trustee shall value all assets at their fair market value as of the close of the first business day on or immediately following the end of the Plan Year, 5.04. Statements of Account. As soon as practical after the end of each Plan Year, the Plan Administrator shall convey to each Participant the total value of such Participant’s Account as determined in Section 5.03. However, neither the maintenance of Accounts nor the allocations of credits to accounts shall operate to vest in any Participant any right to or interest in any assets of the Trust Fund except as the Plan and Trust specifically provides. -7 - ARTICLE VI NORMAL PENSION BENEFITS 6.01. Normal Retirement. The Account of each Participant who retires on the Normal Retirement Date shall be payable as provided in Section 6.05. The Account of each Participant shall be fully vested Le., 100% non-forfeitable on and after the Normal Retirement Date. 6.02. Early Retirement. If a participant shall cease to be an Employee within five years prior to his Normal Retirement Date, such shall be deemed an Early Retirement for the purposes of this Plan and Trust. The vested portion of the Account of such Participant shall be payable as provided in Section 6.05 and payments shall commence at or after the date of cessation of employment, as the participant shall elect, but not later than the Participant's Normal Retirement Date. The Plan Administrator and the Trustee shall take such action as shall be necessary to give effect to the election made by the Participant. Pension payments shall be of whatever amount shall be provided under the option selected, determined as of the date the Participant ceased to be an Employee. 6.03. Late Retirement. A Participant may continue in active employment after his Normal Retirement Date. After his Normal Retirement Date and until his actual retirement, a Participant may continue to participate under this Plan and Trust and shall continue to accme benefits and share in Employer contributions. The receipt of benefits upon late retirement shall be governed by Section 6.05. 6.04. Disability of a Particiuant. (a) If a medical examiner selected by the Plan Administrator certifies that a Participant is totally and permanently disabled, such Participant's account shall be fully vested. "Total and permanent disability" means a physical or mental condition of a Participant resulting from bodily injury, disease or mental disorder which renders him incapable of continuing in the employment of the Employer in a capacity for which the Participant is reasonably suited by reason of training, education, and experience as determined by the Plan Administrator. Disability shall at all times be determined on a uniform and consistent basis for all Participants. (b) Upon determination that a Participant is totally and permanently disabled, such Participant's account (now fully vested) shall be payable as provided in Section 6.05. 6.05. Normal. Early or Late Retirement or Disabilitv Benefit. The Plan Administrator shall direct the Trustee to make the payment of any benefits provided under this Plan and Trust upon the event giving rise to such benefit within the time prescribed by Section 6.07 The form of the benefit provided shall be determined as follows: (a) The normal pension payable to a retired or disabled Participant under this Plan and Trust shall be an annuity which provides monthly payments commencing on the Participant's annuity starting date and continuing thereafter throughout his lifetime with the guarantee that no less than 120 monthly payments shall be made. -8- (b) The monthly amount of a Participant’s normal pension shall be equal to that amount of annuity that can be provided by the actuarial value of the vested portion of the Participant’s account. (c) The Trustee, in its sole discretion, may make optional forms of benefit distribution available subject to a written request by the Participant and subject to the provisions of the Insurance Contract, if any, then in effect for the Plan and Trust. The optional forms shall be the actuarial value of the normal form of payment or retirement benefits and may be more than or less than the normal form and may or may not provide for a period certain. 6.06. Death of a Participant. (a) If a Participant shall die while an Employee and prior to his retirement, such participating Employee’s Account shall be fully vested. (b) If a Participant ceases to be an Employee either by way of retirement or for any other reason other than death and then dies before beginning to receive in benefits the vested portion of his Account, the Participant’s Beneficiary shall receive a death benefit in the form of life annuity payable monthly and equal in actuarial value to the vested portion of such Account. (c) If a Participant retires (whether Early, Normal, or Late) and has begun receiving benefits and then dies before the guaranteed portion of such benefits, if any, has been fully paid, any remaining guaranteed benefits will be paid to the Participant’s Beneficiary as they become due. (d) The Trustee, in its sole discretion, may make optional forms of benefit distribution available subject to a written request by the Beneficiary and subject to the provisions of the Insurance Contract, if any, then in effect for the Plan and Trust. The optional forms shall be the actuarial value of the normal form of payment or of remaining guaranteed benefits and may be more or less than the normal form and may or may not provide for a period certain. 6.07. Timing of Benefit Payments. Payment of benefits provided by this Article shall commence upon the event giving rise to such benefit, or as soon as administratively feasible, but no later than sixty (60) days after the close of the Plan Year in which the latest of the following events occur: (a) the date on which the Participant attains Normal Retirement Age; (b) the tenth (10th) anniversary of the date on which the Participant commenced participation in this Plan; (c) the date the Participant terminates his Service with the Employer; (d) the date specified under a written election made by the Participant. If the amount of the payment required to commence on the date determined above cannot be ascertained by such date, the time of the payment with respect to such date may be delayed -9- no later than sixty (60) days after the earliest date on which the amount could be ascertained. If a Participant elects to defer any benefit payment beyond the dates specified in (a), (b), or (c), above, such election must be in writing and must describe the benefit and date on which such benefit shall commence. Notwithstanding any provision of this Plan and Trust to the contrary, distribution of a Participant’s benefits shall commence not later than April 1 of the calendar year following the year in which he attains age seventy and one-half (70%). If distributions are made other than in a lump sum, distributions to a Participant must begin no later than the April 1 following such calendar year and must be made over the life of the Participant (or the lives of the Participant and the Participant’s designated Beneficiary) or the life expectancy of the Participant (or the life expectancies of the Participant and his designated Beneficiary). For purposes of this Section, the life expectancy of a Participant and a Participant’s spouse may be redetermined, but not more frequently than annually, and in accordance with such rules as may be prescribed by Treasury Regulations. 6.08. Direct Rollover. (a) This Section applies to distributions made on or after January 1, 1993. 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, (1) An 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 ten years or more; any distribution to the extent such distribution is required under section 401(a)(9) of the Code; and the portion of any distribution that is not includible in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to employer securities). (2) An eligible retirement plan is an individual retirement account described in section 408(a) of the Code, an individual retirement annuity described in section 408(b) of the Code, an annuity plan described in section 403(a) of the Code, or a qualified trust described in section401(a) of the Code, that accepts the distributee’s eligible rollover distribution. However, in the case of an eligible rollover distribution to the surviving spouse, an eligible retirement plan is an individual retirement account or individual retirement annuity (3) A 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 section 414(p) of the Code, are distributees with regard to the interest of the spouse or former spouse. - 10- (4) A direct rollover is a payment by the plan to the eligible retirement plan specified by the distributee. 6.09. Non-Transferability of Contracts. Any annuity contract distributed under this Plan and Trust shall be nontransferable. - 11 - ARTICLE VII BENEFICIARY 7.01. Desipnation of Beneficiary. (a) Each eligible Employee shall, in his application for participation, designate the Beneficiary or Beneficiaries to whom he wishes paid any amount payable to his Beneficiary in accordance with the terms of this Plan and Trust as a result of his death. Each Participant shall have the right at any time and from time to time to direct the Plan Administrator to change the designation of Beneficiary The Plan Administrator shall perform such acts as may be necessary to give effect to the instructions of the Participants. The Plan Administrator may require that the Participant’s spouse cosign any election made by the Participant which designates a Beneficiary other than the spouse. (b) Unless otherwise elected under (a) above, if a married Participant dies while in the Service of the Employer after the Early or Normal Retirement Date, the surviving spouse shall be deemed the designated Beneficiary. (c) In the absence of a Beneficiary under either (a) or (b) above, the estate of the Participant shall be deemed to be the designated Beneficiary - 12 - ARTICLE VIII TERMINATION OF EMPLOYMENT 8.01. In General. If a Participant shall cease to be an Employee other than by death, disability or retirement (other than early retirement), the rights of such Participant shall be governed by the following provisions of this Article, and such rights shall be in lieu of all other benefits otherwise available under the Plan and Trust. 8.02. Vesting of Benefit. As of the date a Participant ceases to be an Employee for any reason other than death, disability or retirement (other than early retirement), he shall be entitled to a benefit consisting of the vested portion of all amounts accrued to his account which shall be payable pursuant to Sections 8.03 and 8.04. The vested portion of any Participant’s Account shall be a percentage of the total amount credited to his Account determined on the basis of the Participant’s number of Years of Service according to the following schedule: VESTING SCHEDULE Years of Service Vested Percentage 0 to 2 30% 3 0% 90 % 9 80 % 8 70 % I 60 % 6 50% 5 40 % 4 10 or more 100% The computation of a Participant’s nonforfeitable percentage of his interest in the Plan shall not be reduced as the result of any direct or indirect amendment to this Article. In the event that the Plan is amended to change or modify any vesting schedule, a Participant with at least three (3) Years of Service as of the expiration date of the election period may elect to have his nonforfeitable percentage computed under the Plan without regard to such amendment. If a Participant fails to make such election, then such Participant shall be subject to the new vesting schedule. The Participant’s election period shall commence on the adoption date of the amendment and shall end sixty (60) days after the latest of - 13 - (i) the adoption date of the amendment; (ii) the effective date of the amendment or (iii) the date the Participant receives written notice of the amendment from the Employer or Plan Administrator. 8.03. Accounts of Terminated Participants. When a Participant ceases to be an Employee, the Plan Administrator shall immediately notify the Trustee of that fact and shall also notify the Trustee of the date such Participant ceased to be an Employee and the amount of the benefits for which the Participant is eligible. The Plan Administrator may direct the Trustee to segregate the amount of the vested portion of such terminated Participant’s Account and invest the aggregate amount thereof in a separate, federally insured savings account, certificate of deposit, common or collective trust fund of a bank or a deferred annuity In the event the vested portion of a Participant’s Account is not segregated, the amount shall remain in a separate account for the terminated Participant and share in allocations of earnings and losses per Section 5.02, until such time as a distribution is made to the terminated Participant. The amount of the terminated Participant’s Account which is not vested shall be used to reduce the Employer’s contributions to this Plan and Trust in accordance with the terms of this Plan and Trust at such time as the amount becomes a Forfeiture. In the event that the amount of the vested portion of the terminated Participant’s Account equals or exceeds the cash surrender value of any Insurance Contract(s), the Trustee, when so directed by the Plan Administrator, and agreed to by the terminated Participant, shall assign, transfer, and set over to such terminated Participant all Insurance Contracts on his life in such form or with such endorsements, so that the settlement options are limited to the provisions of Section 6.05, as the Plan Administrator may, in its discretion, direct, restricting the right of the terminated Participant to surrender, assign or otherwise realize cash on the Insurance Contract prior to Normal Retirement Date. In the event that the terminated Participant’s vested portion does not at least equal the. cash surrender value of the Insurance Contract(s), if any, the terminated Participant may, with the approval of the Plan Administrator, pay over to the Trustee the sum needed to make the distribution equal to the value of the Contract(s) being assigned or transferred, or the Trustee may borrow the cash surrender value of the Contract(s) from the insurer and then assign the Contract(s) to the terminated Participant. 8.04. Distributions to Terminated Participants. Distribution of the funds due to a terminated Participant shall be made on the occurrence of an event which would result in the distribution had the terminated Participant remained in the employ of the Employer (upon the Participant’s death, or Early or Normal Retirement). However, if the Participant so requests, the Plan Administrator shall direct the Trustee to cause the entire vested portion of the terminated Participant’s Account to be payable to such terminated Participant. - 14 - ARTICLE M BREAKS IN EMPLOYMENT 9.01. Breaks in Service. In the event of termination of employment of a Participant and his subsequent reemployment by the Employer, he shall be considered a new Employee for the purposes of this Plan and Trust with respect to the new period of employment. Eligibility and benefits shall be determined for the new period of employment with respect to the date of re- employment. Such benefits shall be unaffected by any benefits which may have been made available to him at the time of his previous termination of employment. 9.02. Exception for Militarv Duty. Active duty in the armed forces of the United States or of any states thereof for the duration of a national emergency or a state of war, shall not constitute termination of employment of a Participant if he returns to the employment of the Employer within ninety (90) days, or such longer period during which his employment rights are protected by law, after release from such active duty; any leave of absence authorized by the Employer shall not constitute a termination of employment, provided the Participant returns to the service of the Employer on or before the expiration date of the leave of absence. During any such period, he shall not be deemed to be in receipt of compensation and the Employer will not make contributions to the Plan and Trust on his behalf. However, during such period, the Participant shall be deemed to be in the service of the Employer for vesting purposes. - 15 - ARTICLE X PLAN ADMINISTRATION 10.01. Designation and Acceptance of the Plan Administrator. The Employer shall designate the person, persons, entity, or entities including the Employer itself, to serve as Plan Administrator, and such designee shall signify its acceptance of this responsibility as a Named Fiduciary of the Employer’s Plan and Trust by joining in the execution of the documents creating or amending this Plan. If more than one (1) person is so designated, the committee so formed shall be known as the Administrative Committee, and all. references in the Plan and Trust to the Plan Administrator shall be deemed to refer to the Administrative Committee. The initial Plan Administrator shall be the Employer. 10.02. Resignation and Removal, Appointment of Successor of Plan Administrator. The Plan Administrator, or any member of the Administrative Committee, may resign at any time by delivering to the Employer a written notice of resignation to take effect at a date specified therein, which shall not be less than thirty (30) days after the delivery thereof, unless such notice shall be waived. The Plan Administrator may be removed with or without cause by the Employer by delivery of written notice of removal to take effect at a date specified therein, which shall not be less than ten (10) days after delivery thereof, unless such notice shall be waived. The Employer, upon receipt of or giving notice of the resignation or removal of the Plan Administrator, shall promptly designate a successor administrator who must signify acceptance of this position in writing. In the event no successor is appointed, the Board of Directors of the Employer will function as the Administrative Committee until a new Plan Administrator has been appointed and has accepted such appointment. 10.03. Allocation and Delegation of Responsibilities of Plan Administrator. As a Named Fiduciary, the Plan Administrator may engage agents to assist it in carrying out its functions hereunder, If there is an Administrative Committee, its members are expressly authorized to allocate fiduciary responsibilities, other than Trustee responsibilities, to named persons or parties providing such allocation or delegation as evidenced in a signed written document, which must be retained with the other Plan documents. 10.04. Duties and Responsibility of Plan Administrator. The primary responsibility of the Plan Administrator is to administer the Plan for the exclusive benefit of the Participants and their beneficiaries, subject to the specific terms of the Plan. The Plan Administrator shall administer the Plan and shall construe this Plan and Trust and determine all questions of interpretation or policy in a manner not inconsistent with this Plan and Trust, and its construction or determination in good faith shall be final and conclusive. The Plan Administrator may correct any defect, supply any omission, or reconcile any inconsistency in such manner and to such extent as shall be deemed necessary or advisable to carry out the purposes of this Plan; provided, however, that any interpretation or construction shall be done in a nondiscriminatory manner and shall be consistent with the intent that the Plan shall continue - 16 - to be deemed a qualified Plan under the terms of the Internal Revenue Code of 1986, as amended from time to time. The Plan Administrator shall have all powers necessary or appropriate to accomplish its duties under this Plan. The Plan Administrator shall be charged with the duties of the general administration of this Plan, including but not limited to, the following: (1) To determine all questions relating to the eligibility of Employees to participate in or remain a Participant hereunder; (2) To compute, certify, and direct to the Trustee with respect to the amount and kind of benefits to which any Participant shall be entitled hereunder; (3) To authorize and direct the Trustee with respect to all disbursements from the Trust: (4) To maintain all the necessary records for the administration of the Plan; (5) To interpret the provisions of the Plan and to make and publish such rules for regulation of the Plan as are not inconsistent with the terms hereof; (6) To determine the size and type of any contract to be purchased from an insurer for any Participant hereunder; (7) To advise the Trustee regarding the short and long-term liquidity needs of the Plan in order that the Trustee might direct its investments accordingly; (8) To advise, counsel, and assist any Participant regarding any rights, benefits, or elections available under the Plan. The Plan Administrator shall also be responsible for preparing and filing such annual disclosure reports and tax forms as may be required from time to time. The Plan Administrator must furnish to each Participant covered under the Plan and to each beneficiary who is entitled to receive benefits under the Plan such information and reports and under such circumstances as may be required by law. The Plan Administrator shall make copies of the Plan description and the latest annual report and any bargaining agreement, trust agreement, contract, or other instruments under which the Plan was established or is operated available for examination by any Plan Participant or beneficiary in the principal office of the Administrator and the Employer. Whenever it is determined by the Plan Administrator to be in the best interest of the Plan and its Participants or beneficiaries, it may request such variances, deferrals, extensions, or exemptions or make such elections for the Plans as may be available under the law - 11 - The Plan Administrator shall be responsible for procuring bonding for any persons dealing with the Plan or its assets as may be required by law or by the terms of this Plan. The Plan Administrator is hereby designated as agent for service of legal process. 10.05. Exwnses and Compensation. The expenses necessary to administer the Plan shall be borne by the Plan, except as otherwise provided in Schedule A, including but not limited to those involved in retaining necessary professional assistance from an attorney, an accountant, an actuary, or an investment advisor, The Employer shall furnish the Plan Administrator with such clerical and other assistance as is necessary in the performance of its duties. Nothing shall prevent the Plan Administrator from receiving reasonable compensation for services rendered in administering this Plan, provided the Plan Administrator is not a full-time employee of the Employer creating this Plan. 10.06. Information from EmDlover. To enable the Plan Administrator to perform its functions, the Employer shall supply full and timely information to the Plan Administrator on all matters relating to the Compensation of all Participants, their continuous regular employment, their retirement, death, disability, termination of employment, and such other pertinent facts as the Plan Administrator may require; and the Plan Administrator shall advise the Trustee of such of the foregoing facts as may be pertinent to the Trustee’s duties under the Plan. The Plan Administrator is entitled to rely on such information as is supplied by the Employer and shall have no duty or responsibility to verify such information. - 18 - ARTICLE XI RIGHT TO ALTER, AMEND OR REVOKE 11.01. Power to Terminate. The Employer reserves the right to terminate this Plan and Trust, which termination shall become effective upon filing with the Trustee, a written notice of such election to terminate. 11.02. Power to Amend. The Employer reserves the right to amend this Plan and Trust at any time to any extent that it may deem advisable without the consent of any Participant or any Beneficiary provided, however, that no amendment to this Plan and Trust shall deprive any Participant of any vested interest, nor shall such amendment increase the duties and obligations of the Trustee hereunder except with its consent. 11.03. Oualification Under the Internal Revenue Code. This Plan and Trust is created with the intent and purpose that it shall qualify as a Governmental Pension Plan and Trust under Section 414 of the Internal Revenue Code of 1986, as amended, respecting governmental plans. The Employer reserves the right to amend this Plan and Trust in such manner as may be necessary or advisable so that said Plan and Trust may so qualify under the provisions of the Internal Revenue Code in force on the effective date and as may thereafter be changed or amended, or under any other related provisions of said Code. 11.04. Procedure for Amendment. Any amendment to this Plan and Trust shall be set out in writing executed on behalf of the Employer Any statement in such amendment that it was authorized by the Common Council shall be accepted by the Trustee as proof of such action by the Common Council, and from and after the filing of such amendment in writing with the Trustee. this Plan and Trust shall be deemed to have been so amended. 11.05. Effect of Termination. Upon termination or partial termination of this Plan and Trust, the accrued benefit of each Participant as of the date of termination shall become fully vested and shall not thereafter be subject to forfeiture. The amount to be distributed to each Participant may be placed in a nontransferable deferred annuity within sixty (60) days after the amount becomes available with the Participant as owner. Alternatively, the Participant may indicate to the Plan Administrator a preference for an optional method of distribution as provided in Section 6.05 of this Plan and Trust. Upon complete termination, if after such distribution any funds remain after payment of all expenses, such funds shall be allocated pro-rata based on each Participant’s Account balance on the date of the termination of the plan and distributed, as if added to the accrued benefit of each Participant, as set forth in this section. 11.06. No Reversions to Emplover. It shall be impossible, at any time prior to the satisfaction of all liabilities with respect to Employees and their Beneficiaries under this Plan and Trust, for any part of the corpus or income to be used for or diverted to, purposes other than for the exclusive benefit of the Participants or their Beneficiaries. The Employer shall not be entitled to recover any part of its contributions to this Plan and Trust, except as provided for in Section 3.05 herein. - 19 - ARTICLE XI1 PROVISIONS WITH RESPECT TO THE TRUSTEE 12.01. Terms and Conditions of AcceDtance. The Trustee accepts the Trust hereby created only upon the terms and conditions of this Plan and Trust, including the following terms and conditions: (a) The named Trustee and its successors in trust and the survivors of it shall be the Trustee of this Trust and, as such it is fully authorized and empowered, subject to the terms, provisions and restrictions of this Trust, to manage, control, handle, or dispose of the whole or any part of the funds and policies which it shall receive in its capacity as Trustee herein; to obtain, maintain, make application for, transfer, assign, amend, deal with, and handle all Insurance Contracts and other funding vehicles necessary in carrying out this Trust; to borrow money against any policy held hereunder provided such borrowing shall be on a ratable basis among all policies so held; and to conflict, defend, prosecute or compromise any claim by or against the Trust. (b) The Trustee shall be liable only for the safeguarding and administration of the Trust estate in accordance with the provisions of this Trust, and any amendments or supplements thereto, and no other or further duties or responsibilities shall be implied. (c) The Trustee shall be fully protected in taking any action upon any paper or document believed by the Trustee to be genuine and to have been properly signed and presented. The Trustee may consult with counsel (who may be counsel for the Employer) selected by the Trustee and the Trustee shall be fully protected for any action taken, suffered, or omitted in good faith in accordance with the opinion of said counsel. It shall be the duty of the Trustee to determine the identity andlor mailing address of any Participant or any person entitled to benefits hereunder, such identity and/or mailing address to be furnished by the Plan Administrator, and in making any payments under this Trust and Trustee shall be under no liability for making any payments in accordance with certification by the Plan Administrator. (d) The Trustee shall not be under any liability or responsibility for the failure to effect any of the objects of this Trust by reason of the refusal of any issuing Insurance Company or companies to take any action requested by the Trustee. (e) The Trustee shall serve and receive such compensation as may be agreed upon by the Trustee and the Employer, The Trustee shall be entitled to reimbursement by the Employer for all proper expenses incurred by it in the performance of its duties as Trustee hereunder, including the cost of any litigation hereunder. Notwithstanding the foregoing, in the event that a Trustee is an employee of the Employer, he shall not be entitled to payment of any compensation for acting as Trustee hereunder. (9 Whenever in the administration of this Trust the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering, or omitting any action hereunder, said matter may be deemed to be conclusively proved and established by a 20 - certificate in writing if signed by the Plan Administrator. Any such certification shall be a complete guarantee to the Trustee in connection with any such action on the faith thereof. (8) All funds in the possession of the Trustee may be deposited in the name of the Trustee in such bank or banks as it shall elect. Any funds so deposited in any bank shall be subject to withdrawal on the signature of any one Trustee. (h) The Trustee shall be the complete and absolute owner of the Insurance Contracts and/or policies held in the Trust Fund and/or each and every incident of ownership thereof, including the power to sell or assign any such policy; to receive all dividends on any such policy; to borrow money upon such policy and to hypothecate the same to secure any such loan; to repay any loans; to surrender any such policies for cash; to receive all payments of any kind which may be payable to the Trustee by the terms of any policy held in trust; to change the amount of any policy; and, without limitation of the foregoing, to exercise any and all of the rights, options and privileges which belong to the absolute owners of a policy, or which are granted by the terms of any policy, or by the terms of this Trust, or are permitted by any Insurance Company 12.02. Records. The Trustee shall keep accurate and detailed records of its administration of the Trust, which records shall be open to inspection at all reasonable times by the Plan Administrator or the Plan Administrator’s designated representatives. A Participant shall also have the right to inspect the records of the Trustee insofar as they relate to his participation at reasonable times. Within sixty (60) days following the close of each calendar year, or at such other date as may he agreed upon between the Plan Administrator and the Trustee, the Trustee shall file with the Plan Administrator a written statement and report of receipts and disbursements and of the balance, if any, on hand. Upon the expiration of ninety (90) days from the date of filing such written statement and report, the Trustee shall be forever released and discharged from any liability or accountability to anyone in respect to the propriety of its acts or transaction shown in such statement and report thereof, except with respect to such acts or transactions as to which the Plan Administrator or any Participant shall within such ninety (90) days period file written objections, and neither the Plan Administrator nor any Participant nor any other person shall have the right to demand or be entitled to any further or different accounting by the Trustee. 12.03. Insurance Contracts. Notwithstanding anything herein contained to the contrary, neither the Plan Administrator nor the Trustee shall have any responsibility for the form, genuineness, validity, sufficiency, or effect of any Insurance Contract at any time included in the Trust estate, or for the act of any person or persons which may render any such Insurance Contract null and void, or for the failure of any Insurance Company to pay the proceeds and avails and benefits of any such Insurance Contract as and when the same shall become due and payable, or for any delay occasioned by any restriction or provision contained in any such Insurance Contract, or if for any reason whatsoever any Insurance Contract or policy shall lapse or otherwise become uncollectible; provided, however, that nothing contained herein shall relieve the Trustee from liability for any willful act or acts of misfeasance. 12.04. Disuuted Benefits. In the event that any dispute shall arise as to the persons to whom payment of any funds and/or delivery of any policies or other property shall be made by - 21 - the Trustee, the Trustee may withhold such payment and/or delivery until such dispute shall have been determined by a court of competent jurisdiction or shall have been settled by the parties concerned. 12.05. Maintenance of Actions. The Trustee is hereby authorized to execute all necessary receipts and releases to the issuing Insurance Company or Companies concerned, and shall have power to institute actions or suits to collect any sums that may appear to be due to the Trustee under any contracts; provided, however, that the Trustee shall not be required to maintain any litigation unless it has in its possession funds sufficient for that purpose or has been indemnified to its satisfaction for counsel fees, costs and other liabilities to which it may, in its judgment, be subjected by such action on its part. 12.06. Bonding. The Trustee shall not be required to give any bond or other security for the faithful performance of its duties hereunder, 12.07. Removal of Trustee. A Trustee or Trustees may be removed by the Employer by the delivery to such Trustee of a certified copy of a resolution of the Common Council of the Employer to that effect. A Trustee or Trustees may resign as Trustees hereunder upon written notice to that effect delivered to the Employer, Such removal or resignation shall become effective upon the date specified in such resolution or such written notice, as the case may be, which date shall not be less than thirty (30) days subsequent to the delivery of such copy of resolution or written notice. In the event of such removal or resignation, a successor Trustee or Trustees shall be appointed by the Employer through action of its Common Council and such successor Trustee or Trustees, upon accepting such appointment by an instrument in writing delivered to the Employer, shall become vested with all the rights, powers, duties, privileges and immunities as Trustee or Trustees hereunder, as if he, they or it had originally been designated as Trustee or Trustees in this Trust. Upon such appointment and acceptance, the replaced Trustee or Trustees shall make any endorsements, assignments, conveyances and execute any other instruments necessary to transfer to the successor Trustee or Trustees all of the funds, policies and other property held under the Trust. - 22 - .I . ARTICLE XIII PROVISIONS RELATING TO INSURANCE COMPANIES 13.01. Not a Party to Trust. No Insurance Company which may issue any Insurance Contracts for the purposes of this Trust shall be required to take or permit any action contrary to the provisions of said Insurance Contracts, nor shall such Insurance Company be deemed to be a party to this Trust for any purpose, nor shall it be responsible for the validity of this Trust. 13.02. Validin, of Trust. No such issuing Insurance Company shall be required to look into the terms of this Trust or question any action of the Trustee nor be responsible to see that any action of the Trustee is authorized by the terms of this Trust. 13.03. Execution of Documents. Any and all certificates or other documents requiring the signature of the Trustee may be executed by any one Trustee. When so executed, any such document shall be accepted by the issuing Insurance Company as conclusive evidence of any of the matters mentioned in this Trust, and any such Insurance Company shall be fully protected in taking or permitting any action on the faith hereof and shall incur no liability or responsibility for so doing. - 23 - ARTICLE XIV MISCELLANEOUS PROVISIONS 14.01. Right to Make Payments. If any money shall be payable by the Trustee under any of the provisions of this Plan and Trust on behalf of a Participant who has died and if this Plan and Trust provides that such payment shall be made to the Participant’s estate and if such Participant has no estate pending in the probate court of the county of his residence, then the Trustee shall have authority, if it so elects, to make such payment to the surviving spouse of such deceased Participant, or if there be no surviving spouse, to the then living children in equal shares; but nothing herein shall prevent the Trustee from insisting upon the opening of administration proceedings and the delivery of any such funds to a duly appointed executor or administrator in the event the Trustee shall decide that payment to such a legally authorized personal representative is preferable for the Trustee. 14.02. Limitation on Particioant Riehts. Neither the establishment of the Plan and Trust hereby created, nor any modification thereof, nor the creation of any fund or account, nor the payment of any benefits shall be construed as giving any Participant or any person whomsoever claiming by or through the Participant or otherwise any legal or equitable right as against the Employer, the Plan Administrator or the Trustee unless the same shall be specifically provided for in this Plan and Trust. Nothing herein contained shall be construed or interpreted as giving any Employee the right to be retained in the service of the Employer or shall affect or impair the right of the Employer to control its employment and terminate the service of any Employee at any time. 14.03. Non-alienation of Benefits. (A) In General. No benefits accrued under this Plan and Trust may be anticipated, assigned (either at law or in equity), alienated, or subject to attachment, garnishment, levy, execution, or other legal or equitable process. (B) Exceotion for Oualified Domestic Relations Orders. Notwithstanding the anti- alienation provisions set forth in subparagraph (A) above, a valid court order which calls for payment of benefits under this Plan and Trust to a spouse, former spouse, child or other dependent of a Participant for the provision of marital property, alimony or child support pursuant to state domestic relations law shall be recognized hereunder, but only if the order constitutes a Qualified Domestic Relations Order as defmed in Section 414(p) of the Internal Revenue Code [26 U.S.C. 5 414(p)] and Section 206(d) of the Employee Retirement Income Security Act of 1974 as amended (ERISA) [29 U.S.C. 5 1056(d)], The status of an order as a aualified domestic relations order entitled to enforcement hereunder shall be as determined by the Plan Administrator, 14.04. Governing Laws. This Plan and Trust shall be construed according to the laws of the State of Wisconsin, and all provisions hereof shall be administered according to the laws of such state. When making determinations affecting Employees’ rights pursuant to this Plan and Trust, the Employer, Plan Administrator and Trustee shall uniformly follow rules of consistent application. - 24 - 14.05. Gender and Headings. Wherever any words are used herein in the masculine gender, they shall be construed as though they were also used in the feminine gender in all cases where they would so apply, and wherever any words are used herein in the singular form, they shall be construed as though they were also used in the plural form in all cases where they would so apply. Headings of sections and subsections of this Plan and Trust are inserted for convenience of reference; they constitute no part of this Plan and Trust and are not to be considered in the construction hereof. 14.06. Duplicate Originals. This Plan and Trust rnay'be executed in any number of counterparts, each of which shall be deemed to be an original, and the counterparts shall constitute one and the same instrument, which shall be sufficiently evidenced by any one thereof. - 25 IN WITNESS WHEREOF, the Employer has caused this Plan and Trust Agreement to be signed the date first above written by its duly authorized officials and the Trustee has also signed this agreement. CITY OF MUSKEGO By: Attest: TRUSTEES - 26 - CITY OF MUSKEG0 PENSION PLAN AND TRUST SCHEDULE A The amount of Employer contributions to be made pursuant to Section 3.02 of the Plan are as follows: "HOS" means Hour of Service; COMP means Compensation as defined in the Plan. The amount that the Employer agrees to pay towards the employees' cost of administering the Plan is as follows: Effective Date January 1, 1988 through December 31. 1995 January 1, 1988 through December 31, 1988 January 1, 1989 through December 3 1, 1995 Eligible Employee Class AFCSME City HaWLibrary and Telecommunicators Units; Non-Represented Employees Department of Public Works Department of Public Works Agreement re Cost The Employer agrees to pay the employees' cost of administering the Plan. The Employer agrees to pay up to an amount equal to one percent (1 %) of the value of each employee's account towards the employee's cost of administering the Plan. The Employer agrees to oav the emulovees' cost of idministerkg ?he Plan.