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CCR2000049AMENDED COMMON COUNCIL - CITY OF MUSKEGO RESOLUTION #49-2000 CITY OF MUSKEGO AND MUSKEGO POLICE ASSOCIATION RETIREE HEALTH TRUST WHEREAS, The negotiated Agreement between the City of Muskego and The Muskego Police Association for the period January 1, 1996 through December 3 1, 2000 allowed for a segregated trust fund for longevity and sick pay for health insurance pay out. NOW, THEREFORE, BE IT RESOLVED That the Common Council of the City of Muskego, upon the recommendation of the Finance Committee, does hereby approve of the attached City of Muskego and Muskego Police Association Retiree Health Trust as amended. BE IT FURTHER RESOLVED That Paul Geiszler and Dawn Gunderson are hereby authorized to sign the Trust as the trustees. DATED THIS 14th DAY OF March , 2000. SPONSORED BY: FINANCE COMMITTEE Ald. Mark Slocomb Ald. David Sanders Ald. Nancy Salentine Deferred 2/22/2000 This is to certify that this is a true and accurate copy ofResolution #49-2000 which was adopted by the Common Council of the City of Muskego. CITY OF MUSKEGO AND MUSKEGO POLICE ASSOCIATION RETIREE HEALTH TRUST Effective April 1, 2000 CITY OF MUSKEG0 AND MUSKEG0 POLICE ASSOCIATION RETIREE HEALTH TRUST Table of Contents Page ARTICLE I Definitions and Construction 1.1 Definitions 1.2 Effective Date 1.3 Construction ARTICLE I1 3.1 3.2 4.1 4.2 4.3 4.4 4.5 4.6 4.7 Creation and Acceptance of Trust ARTICLE 111 Purpose of and Payments To and From Plan Purpose Payments To and From Trust ARTICLE IV Designation of Trustee Number of Individuals Serving as Trustee Qualification of Trustee Identity of Trustee Acceptance of Appointment Tenure Resignation of a Trustee Removal of Trustee I- 1 1-2 1-2 11-1 111- 1 111- 1 IV- 1 1v-1 IV- 1 IV- 1 IV- 1 IV- 1 1v-1 MW374602BEC:MBW 03/09/2000 1 Page 4.8 4.9 5.1 5.2 5.3 5.4 6. I 6.2 6.3 6.4 7,l 7.2 1.3 1.4 8.1 8.2 8.3 Selection of Successor Trustee Action of Trustee ARTICLE V Organization and Operation of Trustee Office Immunity of the Trustee Compensation of Individual Trustee Service in More Than One Fiduciary Capacity ARTICLE VI Control and Management of Trust Control of Trust Management of Trust Trust Responsibilities Trust Powers ARTICLE VI1 Operation and Administration of Plan Authority of Trustee Plan Responsibilities Plan Powers Expenses ARTICLE VI11 Contributions and Collections Contributions to Trust Transmission of Reports and Contributions Delinquent Contributions iv-2 iv-2 v- 1 v- 1 v-2 v-2 VI- 1 VI- 1 v1-2 v1-2 VII- 1 v11-1 v11-2 v11-6 VIII-1 VIII-1 VIII-1 MW374602BEC:MBW 03/09/2000 11 .. Page 9.1 9.2 9.3 9.4 10.1 10.2 11.1 11.2 12.1 12.2 12.3 12.4 12.5 12.6 12.7 12.8 12.9 ARTICLE IX Controversies and Disputes Reliance Upon Records Determination by Trustee Binding Compromise Right to Obtain Adjudication of Disputes ARTICLE X Amendments Method of Amendment Limitation on Amendments ARTICLE XI Termination Term of Plan and Trust Complete Termination of Plan and Trust ARTICLE XI1 General Provisions Title to the Trust Liability of Union and Employer Nonalienation of Benefits Prohibition of Diversion of Trust Incompetency Information to be Furnished by Employer Execution of Documents Notice and Delivery of Documents Gender, Number and Headings IX- 1 IX- 1 IX- 1 IX- 1 x- 1 x- 1 XI- 1 XI- 1 XII- 1 XI- 1 XII- 1 XII- 1 XII- 1 x1-2 x11-2 x1-2 x11-2 MW374602BEC:MBW 03/09/2000 111 ... Page 0 0 12.10 Construction 12.1 1 Counterparts MW374602BEC:MBW 0310912000 xii-2 x1-3 iv CITY OF MUSKEGO AND MUSKEGO POLICE ASSOCIATION RETIREE HEALTH TRUST This Agreement is adopted by the signatory Trustee hereto, effective as of April 1,2000. WITNESSETH: WHEREAS, the Employer, as the result of collective bargaining, has agreed to adopt one or more programs to provide certain of its employees with post-employment health benefit subsidies; and WHEREAS, effective as of April 1,2000 the Employer and the Union agreed to establish a tax-exempt vehicle under section SOl(c)(9) of the Internal Revenue Code to hold funds and provide benefits pursuant to the post-employment health program; NOW, THEREFORE, for and in consideration of the premises and 0 mutual covenants herein contained, the Trustee hereby agrees to adopt said Agreement in its entirety as follows: MW374602BEC:MBW 03/09/2000 ARTICLE I Definitions and Construction 1.1 Definitions. The following words and phrases shall have the meanings stated below: (a) Aaeement. The Trust Agreement, the agreement set forth herein. as amended from time to time. (b) Employee. Any employee of the Employer on whose behalf payments are required to be made to the Trust by the Employer pursuant to a collective bargaining or other written agreement with a Union, non represented individual or the Trustee. The term "Employee" may also include former Employees and their dependents in accordance with rules of uniform application adopted by the Trustee. Notwithstanding the foregoing, no person may participate in the Plan who is prohibited by law from being covered under the Plan or Trust or whose inclusion would cause the Trust to lose its tax-exempt status. (c) Emulover. City of Muskego, Wisconsin. (d) Participant. Any Employee or former Employee who is eligible for benefits provided under the Plan. (e) Participation Agreement. An agreement in form and content acceptable to the Trustee which evidences the commitment of the signatory thereto to be bound by the adoption of the Plan and the Agreement (f) plan. City of Muskego and Muskego Police Association Retiree Health trust. (8) m. The assets of the Plan, held in trust by the Trustee. (h) Trustee. The person or persons who are named according to the provisions of Article IV hereof and who have authority to control and manage the operation and administration of the Plan and who also have authority to control and manage the Trust. (i) m. The Muskego Police Association, which has entered into a collective bargaining agreement with the MW374602BEC:MBW 03/09/2000 I- 1 Employer requiring the Employer's participation in the Plan. (i) Non represented individuals. Muskego Police Department sworn employees not represented by the union. 1.2 Effective Date. The effective date of the Trust is April 1, 2000. 1.3 Construction. This Plan shall be governed by and construed in accordance with the laws of the State of Wisconsin. Words used in the masculine gender shall include the feminine and words used in the singular shall include the plural, as appropriate. The words "hereof," "herein," "hereunder" and other similar compounds of the word "here" shall refer to the entire Plan, not to a particular section. All references to statutory sections shall include the section so identified as amended from time to time or any other statute of similar import. If the Code renders any provisions of this Agreement unenforceable, such provision shall be of no force and effect only to the minimum extent required by such law. MW374602BEC:MBW 03/09/2000 1-2 ARTICLE I1 Creation and Acceptance of Trust All payments made by the Employer to the Trust pursuant to collective bargaining or other written agreements and such other payments as shall from time to time be made to the Trust by the Employer or Employees, and all other money or property as shall lawfully become a part of the Trust, together with the income, gains and all other increments of any nature whatsoever, if any, therefrom, shall be held, managed and administered in trust pursuant to the terms of this Agreement. The Trust shall be known as the City of Muskego and Muskego Police Association Retiree Health Trust. The Trustee hereby accepts the trust created hereunder and agrees to perform the duties, responsibilities and obligations under this Agreement on its part to be performed. MW374602BEC:MBW 03/09/2000 11- 1 ARTICLE 111 Purpose of and Payments To and From Plan 3.1 Purpose. The purpose of the Plan is to apply the assets of the Trust to provide health care benefits, pursuant to the terms of the Plan, for Employees and their dependents after such Employees terminate employment with the Employer. Such benefits may be provided directly or through the purchase of insurance for Employees and their dependents. Except as otherwise provided herein, nothing in this Agreement shall increase or decrease the rights of any party to any collective bargaining agreement. 3.2 Payments To and From Trust. Payments to the Trust shall be made by the Employer in accordance with its collective bargaining or other written agreements and rules of the Trustee. Employees may also make payments to the Trust to the extent permitted by the collective bargaining agreements to which they are subject on a uniform and nondiscriminatory basis. Payments shall be made from the Trust to such persons or entities, in such manner, at such times, and in such amounts as are indicated by the Trustee from time to time in written directions. Payments from the Trust shall be made without limitation by reason of enumeration, for the following purposes: (a) To provide for: \ (i) the payment of all reasonable and necessary expenses of establishing the Plan (including the payment of benefits), collecting the Employer contributions and operating, administering, controlling or managing the Plan or Trust, including payment of membership dues in educational and other organizations operated for purposes related to the Plan and the payment of expenses incurred by the Trustee in connection with attending and participating in educational conferences, seminars and similar meetings; (ii) the employment of such administrative, legal, expert and clerical assistance as may be reasonably necessary; (iii) the purchase or leasing of such premises as may be necessary for the operation of the affairs of the Plan; and (iv) the purchase or leasing of such materials, supplies and equipment as the Trustee, in their discretion, find necessary or appropriate to the performance of its duties. MW374602BEC:MBW 03/09/2000 111- 1 (b) To pay the premiums on group insurance policies or other contracts obtained from any insurance company or from any association of medical health care personnel or facilities and to self-fund or otherwise to pay and provide for any benefits from time to time offered under the Plan. MW374602BEC:MBW 03/09/2000 111-2 ARTICLE IV Designation of Trustee 4.1 Number of Individuals Serving as Trustee. There shall be four individuals who shall serve as Trustee, two of whom shall be appointed by the Union and two of whom shall be appointed by the Employer. 4.2 Qualification of Trustee. No person shall be disqualified fiom being a Trustee hereunder by reason of the fact that he is or hereafter becomes a Participant hereunder. 4.3 Identity of Trustee. As of the date of the execution of this Agreement, the following persons have been designated and have been duly qualified and are serving as the Trustee: Union Trustees Employer/ Non-rep. Trustees Thomas R. Schilling Paul P Geiszler Jeffrey D. Zarnbo Dawn R. Gunderson 4.4 Acceptance of Appointment. Each person serving as Trustee shall consent to and accept his appointment as a Trustee in writing. 4.5 Tenure. Each person serving as Trustee shall continue to serve during the existence of the Plan and Trust until his death, incapacity, resignation or removal. 4.6 Resignation of a Trustee. A Trustee may resign and subsequent thereto shall be discharged from any further duty or responsibility hereunder by giving prior written notice to the entity that appointed the Trustee, which notice shall state the date such resignation shall take effect and such resignation shall take effect on said date unless a successor Trustee shall have been appointed at an earlier date in accordance with the provisions of section 4.8 hereof, in which event such resignation shall take effect immediately upon the appointment of such successor Trustee. A Trustee, upon leaving office, shall forthwith turn over and deliver to the other persons serving as Trustee any and all property in his possession or under his control which belongs to the Plan. MW374602BEC:MBW 03/09/2000 IV- 1 0 4.7 Removal of Trustee. A Trustee appointed by the Employer may be removed from office at any time by the Employer. A Trustee appointed by the Union may be removed from office at any time by the Union. Any notice of removal, in order to be effective, shall be delivered to the Trustee, shall specify the date the removal shall take effect, and thereafter appoint a successor to fill the vacancy caused by the removal. 4.8 Selection of Successor Trustee. If a person serving as Trustee shall die, resign, be removed, become incapacitated or refuse to act, a successor Trustee shall be appointed forthwith by written instrument signed by an authorized representative of the entity that had appointed the Trustee who is being replaced. 4.9 Action of Trustee. The Trustee may act at a meeting upon the affirmative vote of a majority of its then serving members. In the absence of a meeting of the members, the Trustee may act by resolution signed by all of its members. MW374602BEC:MBW 03/09/2000 TV-2 ARTICLE V Organization and Operation of Trustee 5. I Office. The Trustee shall establish an office in Muskego, Wisconsin at such location as the Trustee may approve for the transaction of the business of the Plan, the exact location of which is to be made known to the parties interested in said Plan. At such office there shall be maintained the books, reports and records pertaining to the Plan and its administration. 5.2 Immunity of the Trustee. (a) Exculpation of Trustee and Plan Employees From Liability. No Trustee or Plan employee shall incur any liability individually or on behalf of other individuals for any act or failure to act unless such act or failure to act is due to his own gross negligence or willful misconduct or lack of good faith. The fiduciaries must act as a “prudent man” for the “exclusive benefit” of the participants. A Trustee or Plan employee may act or rely upon any of the following: 0 (i) Any instrument, application, notice, request, signed letter, telegram or other paper or document believed by him to be genuine and to contain a true statement of facts and to be signed or sent by the proper person; or (ii) The advice, opinion, records, reports or recommendations of any accountant, actuary, administrator, attorney, consultant, co-trustee, investment agent or investment manager or any other advisor selected by the Trustee with reasonable care. (b) Indemnification of Trustee and Plan Employees. The Trustee shall cause any person who is or has served as a Trustee or employee of the Plan to be indemnified out of the Trust against all damages, liabilities and expenses incurred by or imposed on him in connection with any claim, suit, action or proceeding concerning the Plan or his acts or omissions as a Trustee or employee thereof, including, without limitation, legal fees and amounts paid in any compromise or settlement unless such acts or omissions constitute gross negligence, willful misconduct or lack of good faith. Any indemnification provided herein shall be limited to amounts not collected pursuant to valid and a enforceable liability insurance policies. MW374602BEC:MEIW 03/09/2000 v- 1 To the extent permitted by law, the Trustee, in its discretion, may also cause the Trust to indemnify any person who is rendering services to the Plan against all damages, liabilities and expenses incurred by or imposed upon such a person in connection with any claim, suit, action or proceeding concerning the Plan or the acts or omissions of such a person, including without limitation, legal fees and amounts paid in any compromise or settlement unless such act or omission constitutes gross negligence, willful misconduct or lack of good faith. 5.3 ComDensation of Individual Trustee. An individual Trustee shall not be paid any compensation from the Trust for his services hereunder, but the Trustee may receive reimbursement from the Trust for reasonable expenses incurred on behalf of the Plan or Trust or in connection with its duties hereunder. 5.4 Service in More Than One Fiduciarv Capacity. Any individual, entity or group of persons may serve in more than one fiduciary capacity with respect to the Plan, the Trust or both to the extent such is permitted by law. MW374602BEC:MBW 03/09/2000 v-2 ARTICLE VI Control and Management of Trust 6.1 Control of Trust. The Trustee shall be the named fiduciary of the Trust and shall have the power to control the Trust and to perform all such acts, to take all such proceedings, and to exercise all such rights and privileges, although not specifically mentioned herein, as the Trustee may deem necessary or advisable to administer the Plan and Trust or to carry out the purposes of the Plan and this Agreement. 6.2 Management of Trust. The management, including the acquisition and disposition of property comprising the Trust, shall be as follows: (a) General Authority. The Trustee shall have exclusive authority and responsibility with respect to the custody and management of the Trust, except to the extent any such authority has been delegated pursuant to the provisions of subparagraph (b) or (c) below and subparagraph (f) or (g) of section 7.3. 0 (b) Delegation of Custody. The Trustee is authorized to delegate custody of all or any portion of the Trust. Such custodian shall hold the Trust as directed in writing by the Trustee. (c) Delegation of Investment Control. The Trustee may appoint one or more investment managers to supervise and direct the investment and reinvestment of a portion or all of the Trust in accordance with the provisions of the Agreement and in the same manner and with the same powers, duties, obligations, responsibilities and limitations as apply to the Trustee as set forth herein. Any investment manager so appointed shall be an investment advisor registered under the Investment Advisers Act of 1940, a bank as defined in such Act or an insurance company which is qualified to manage the assets of employee benefit plans under the laws of more than one state. As a condition to its appointment, an investment manager shall acknowledge in writing that it is a fiduciary with respect to the Plan. The Trustee may furnish an investment manager with written investment guidelines for investment, which guidelines may include directions with respect to the diversification of the investments. Any investment manager shall receive such reasonable compensation chargeable against the Trust as shall be agreed upon with the Trustee. The trustees may and must monitor the investment expert and remove, instruct, or restrict the expert if hisher work is inadequate. 0 MW374602BEC:MBW 03/09/2000 VI- 1 0 6.3 Trust Responsibilities. In connection with the management and control of the Trust, unless the following responsibilities are allocated or delegated in accordance with the procedures set forth in sections 7.3(f) and (g) or elsewhere herein, the Trustee shall: (a) cause the assets of the Plan to be held and administered in trust; (b) cause accounts of all investments, receipts, disbursements and all other transactions affecting all or any portion of the Trust to be maintained; and (c) pay from the Trust all taxes of any and all kinds whatsoever that may be levied or assessed under existing or future laws upon, or in respect of, the Trust or its income. 6.4 Trust Powers. The Trustee shall have such powers as may be necessary to discharge its responsibilities in managing and controlling the Trust. The Trustee shall have full and complete authority and control over the Trust unless such authority or control is allocated or delegated by the Trustee in accordance with the procedures set forth in sections 7.3(f) and (g) or elsewhere herein. Any determination made by the Trustee in the exercise of these powers shall be binding on all persons. In addition to such powers as are conferred by law or as set forth elsewhere in this Agreement, the powers of the Trustee in connection with their managing and controlling the Trust shall include, but shall not be limited to, the following: 0 (a) To invest and reinvest all or part of the principal and income of the Trust, without distinction between principal and income as the Trustee determines, in such securities or in such property, real or personal, or share or part thereof, or part interest therein, wherever situated, as the Trustee shall deem advisable, including, but not limited to, governmental, corporate or personal obligations, shares of stock, common or preferred, whether or not listed on any exchange, participations in mutual investment funds, bonds and mortgages, and other evidences of indebtedness or ownership, including stocks, bonds or other obligations secured by personal property and participations in any common trust fund established or maintained for the collective investment of fiduciary funds as set forth herein. 0 If required by the bank, prior to investing in a common trust fund the Trustee and the bank maintaining the common trust fund shall MW374602BEC:MBW 03l09R000 VI-2 execute an agreement designating the common trust fund and providing that during the time that any part or all of the Trust is held in such common trust fund the declarations of trust creating the common trust fund shall be part of this Agreement; provided that said declarations of trust comply with the Rules and Regulations of the Comptroller of the Currency, if necessary, and the laws of any state having jurisdiction thereover and have, where appropriate, been approved by the Internal Revenue Service. (b) To sell, convey, transfer, exchange, partition, lease for any term, mortgage, pledge or otherwise dispose of any and all property, real or personal or to grant options with respect to any property held by the Trustee by private contract or at public auction or to surrender for cash value any contracts issued by an insurance company and held by the Trustee. Any sale, option or other disposition of property may be at such time and on such terms as the Trustee sees fit. Any sale, option or other disposition of property may be made for cash or upon credit, or partly in cash and partly on credit. No person dealing with the Trustee shall be bound to see to the application of the purchase money or to inquire into the validity, expedience or propriety of any such sale, option or other disposition. (c) To receive, hold, manage, invest, reinvest, improve, repair and control all monies and property, real or personal, at any time forming part of the Trust. 0 (d) To purchase and sell contracts or other properties through such broker or brokers as the Trustee may choose. (e) To vote or refrain from voting upon any stocks, bonds or other securities; to give general or special proxies or powers of attorney with or without power of substitution; to appoint one or more individuals or corporations as voting trustees under voting trust agreements pursuant to such voting agreements to delegate to such voting trustees' discretion to vote; to exercise any conversion privileges, subscription rights, or other options, and to make any payments incidental thereto; to oppose, or to consent to, or otherwise participate in, corporate reorganizations or other changes affecting corporate securities, and to pay any assessments or charges in connection therewith; and generally to exercise any of the powers of an owner with respect to property held as part of the Trust. (0 To cause any securities or other property to be registered in the name of the Trust, the Trustee, a custodian or in the name of a nominee without designating the same as trust property, and to hold any investments in bearer form or otherwise in such form that title passes by delivery, 0 MW374602BEC:MBW 03/09/2000 VI-3 0 but the books and records of the Trustee shall at all times show that all such investments are part of the Trust. (g) To exercise or dispose of any right they may have as the holders of any security to convert the same into another or other securities, or to acquire an additional security or securities, to make any payments, exchange any security or do any act with reference thereto which they may deem advisable. (h) To consent to take any action in connection with (including the deposit of any property with and participation with respect to any protective or similar committee) and receive and retain any securities or other property resulting from any reorganization, consolidation, merger, readjustment of the financial structure, sale, lease or other disposition of assets of any corporation or other organization, the securities of which may constitute a portion of the Trust, and the Trustee may delegate to any such protective or similar committee such power and authority as they may deem proper in the premises and may pay such portion of the expenses and compensation of such committee as they deem proper. (i) To borrow or raise money for the purposes of the Plan in such amount, and upon such terms and conditions as the Trustee shall deem advisable; and for any sum so borrowed to issue the promissory note of the Plan, and to secure the repayment thereof by creating a security interest in all or any part, of the Trust; and no person lending such money shall be obligated to see that the money lent is applied to Trust purposes or'to inquire into the validity, expedience or propriety of any such borrowing. 0 (i) To hold cash, uninvested, for such length of time as the Trustee may determine without liability for interest thereon. (k) To make, execute, acknowledge and deliver any and all documents of transfer and conveyance, including but not limited to, deeds, leases, mortgages, conveyances, contracts, waivers and releases, and any and all other instruments that may be necessary or appropriate to cany out the powers herein granted. (1) To renew or extend or participate in the renewal or extension of any mortgage, upon such terms as may be deemed advisable, and to agree to a reduction in the rate of interest on any mortgage or to any other modification or change in the terns of any mortgage, or of any guarantee pertaining thereto, in any manner and to any extent that may be deemed advisable for the protection of the Trust or the preservation of the value of the investment; to waive any default whether in the performance of any covenant or conditions of any I 0 MW374602BEC:MBW 03/09/2000 VI-4 mortgage or in the performance of any guarantee or to enforce any such default in such manner and to such extent as may be deemed advisable; to exercise and enforce any and all rights of foreclosure, to bid on property in foreclosure, to take a deed in lieu of foreclosure with or without paying any consideration therefor, and in connection therewith to release the obligation on the bond secured by such mortgage and to exercise and enforce in any action, suit or proceeding at law or in equity any rights or remedies in respect of any such mortgage or guarantee. (m) To employ suitable agents, advisors and counsel as they may deem necessary and advisable for the efficient operation and administration of the Trust and to charge the expense thereof to the Trust to the extent permitted by applicable law. (n) To form a corporation or corporations under the laws of any jurisdiction, to participate in the forming of any such corporation or corporations or acquire an interest in or otherwise make use of any corporation or corporations already formed, for the purpose of investing in and holding title to any property. (0) To continue to have and to exercise after the 0 termination of the Plan and until final distribution, all of the title, powers, discretions, rights and duties conferred or imposed upon the Trustee hereunder, or by law. MW374602BEC:MBW 03/09/2000 VI-5 ARTICLE VI1 Operation and Administration of Plan 7.1 Authority of Trustee. The Trustee shall be the named fiduciary for the Plan and shall have authority to and shall be responsible for the operation and administration of the Plan and shall conduct the business and activities of the Plan in accordance with the provisions of the Plan and this Agreement. 7.2 Plan ResDonsibilities. The Trustee shall have full and complete authority and control over the Plan. In connection with its operation and administration of the Plan, unless the following responsibilities are allocated or delegated in accordance with the procedures set forth in sections 7.3(f) and (g), the Trustee shall: (a) Formulate and adopt a program of benefits consistent with the purposes of the Plan. Such program of benefits shall be described in an insurance contract, benefit schedules, employee benefits booklet or other form of 0 written instrument. (b) Determine the right of any person to a benefit. In the exercise of this responsibility, the Trustee shall provide every applicant whose application for a benefit is denied wholly or partially with a written notice setting forth the reason or reasons for the denial and any additional information required by applicable law. Further, the Trustee shall adopt a written appeal procedure which shall provide a claimant with a reasonable opportunity to appeal a full or partial denial of a benefit application. (c) Establish and maintain a funding policy and method consistent with the Plan's objectives and in accordance with any law applicable to the Plan. (d) Maintain books of account, records and other data as may be necessary for the proper administration and operation of the Plan, and a record of all its transactions and actions taken. All of said books, records and data shall be available at the office of the Plan during business hours for inspection by authorized representatives of the Employer or the Union and by the Trustee. MW374602BEC:MBW 06/21/1999 VII- 1 0 (e) Prepare, execute, file and retain a copy for the Plan records of all reports required by law or deemed by them to be necessary or appropriate for the proper administration and operation of the Plan. (f) Maintain the books of the Plan. (9) Procure and maintain at the expense of the Plan such bonds as are required by law, together with such additional bonding coverage as they may determine for the Trustee, employees of the Plan, any agents acting on behalf of or retained by the Trustee and persons to whom fiduciary responsibilities have been delegated. 7.3 Plan Powers. The Trustee shall have such powers as may be necessary to discharge their responsibilities in managing and controlling the general operations and administration of the Plan. The Trustee shall have full and complete authority and control with respect to the operations and administration of the Plan unless such authority or control is allocated or delegated by the Trustee in accordance with the procedures set forth in subparagraphs (f) and (8) below. Any determination by the Trustee in the exercise of these powers shall be binding on all persons. In addition to such other powers as are conferred by law or are set forth elsewhere in this Agreement, the powers of the Trustee in connection with their operation and administration of the Plan shall include, but shall not be limited to, the following: 0 (a) To amend the program of benefits at any time and from time to time as deemed appropriate by the Trustee. The Trustee may, in the event collective bargaining agreements between the Employer and the Union provide for different amounts to be contributed to the Plan by the Employer (or permit contributions by Employees), establish various programs or classes of benefits to be paid Participants on an equitable basis relevant to such different amounts of contributions. The Trustee shall have full authority to determine all questions of any nature relating to the benefits to be provided based on what in their opinion the Plan can reasonably provide after adequate provision for reserves and costs of administration. (b) To determine, from time to time, who shall be Participants, who shall be eligible for benefits under the Plan; the nature, type, character and amount of benefits to be provided including the ability to reduce benefits under the Plan to the extent permitted by applicable law and the medium (k, insurance contract, medical or hospital service contract, self-funding, maintenance of medical and hospital facilities, health maintenance organizations or otherwise) by which such benefits shall be provided. In determining who shall be 0 MW374602BEC:MBW 06R111999 VII-2 a eligible for benefits under the Plan, the Trustee may establish standards for granting or denying such eligibility to Employees. (c) To extend the coverage of the Plan to the Employer and its Employees upon such terms and conditions as the Trustee deems appropriate. (d) To select, apply for, accept delivery and act as policyholder under any group insurance policy purchased for the Plan and to exercise all rights or privileges granted to a policyholder by the provisions of each policy or allowed by the insurance carrier of such policy, including the right to receive and hold as part of the Trust all dividends and experience rating refunds or reimbursements of any kind whatsoever, regardless of the designation thereof, made on any such policy and to cancel any policy or policies of insurance which they have caused to be issued and may purchase in lieu thereof other like insurance from another insurance carrier or carriers. The Trustee may agree with each insurance carrier upon all the provisions to be contained in each policy and to any alteration, modification or amendment of any policy. The Trustee may take any action respecting any policy or the insurance provided thereunder which may be necessary or advisable, in their sole judgment, and no insurance carrier shall be required to inquire into the authority of the Trustee with regard to any dealings in connection with any policy. Any powers granted to the Trustee under this Agreement with respect to insurance shall extend to any medical or hospital service contract or to any other means of providing benefits under the Plan. 0 (e) To employ such consultants, accountants, counsel or other persons as they deem necessary or desirable in connection with the administration of the Plan and to employ one or more persons to render advice with regard to any responsibility or power of the Trustee. The costs of such services and other administrative expenses shall be paid by the Trust. (f) To designate in writing persons who are not serving as Trustee to cany out fiduciary or nonfiduciq responsibilities or duties of the Trustee, and in the event of such a designation the Trustee shall not be liable for any act or omission of such a person. (g) To construe and interpret the Agreement and the Plan. (h) To receive from the Employer, the Union, the Participants or their beneficiaries or dependents such information as shall be necessary for the proper administration of the Plan. 0 MW374602BEC:MBW 06/21/1999 VII-3 0 (i) To finish the Employer and the Union, such annual reports with respect to the administration of the Plan as are reasonable and appropriate. (j) To maintain such bank accounts as they deem appropriate for the administration of the Plan; provided, however, all checks, drafts, vouchers or other withdrawals of funds from the Trust shall be signed by the Trustee, or by a person to whom such responsibility has been delegated. (k) To receive and review reports of the financial condition and of the receipts and disbursements of the Trust. (1) To prescribe procedures to be followed by any persons in applying for any benefits under the Plan; and to designate in the forms or documents, evidence and such other information as the Trustee may reasonably deem necessary, desirable or convenient to support an application for benefits under the Plan. (m) To adopt such by-laws, rules, regulations, actuarial tables, forms and procedures from time to time as they deem advisable and appropriate in the proper administration of the Plan, provided the same are consistent with the terms of this Agreement and do not modify or increase the burdens or obligations of the Employer or Union under the terms of its collective bargaining agreement. 0 (n) To have a judicial settlement of their accounts and judicial determination of any questions in connection with their duties and obligations hereunder, or in connection with the administration or distribution thereof. The costs and expenses, including accounting and legal fees, for such judicial settlement of accounts or other judicial determination shall be paid by the Plan as a general administration expense to the extent permitted by applicable law. (0) To file, from time to time, with the Union and the Employer a statement of their accounts and such other reports as the Trustee deems necessary or appropriate and the Union and Employer may enter into an agreement approving and allowing such statement, account or report and any such agreement shall be binding and conclusive upon all persons whomsoever, and shall constitute a full discharge and acquittance of the Trustee with respect to the matters set forth in such statement, account or report. 0 @) To purchase out of the assets of the Trust, insurance for the benefit of the Plan and/or the protection of the Trustee, Plan employees or MW374602BEC:MBW 06/21/1999 VII-4 0 other fiduciaries of the Plan against any losses by reason of errors or omissions or breach of fiduciary duty. (9) To enter into any and all contracts and agreements for carrying out the terms of the Plan and for the administration and operation of the Plan and to do all acts as they, in their discretion, may deem necessary or advisable, and such contracts and agreements and acts shall be binding and conclusive on the parties hereto and on the Participants involved. (r) To borrow money, with or without security, for the Plan. (s) To extend the time of payment of any obligation and to compromise and accept either total or partial satisfaction, or write off as uncollectible any Employer contribution to the Plan or any other indebtedness or other obligation as the Trustee may deem appropriate, provided such action is consistent with applicable law. An extension of time of payment, compromise or a decision to write off as uncollectible shall be deemed appropriate if the Trustee determines that the likelihood of collection or the anticipated expense of collecting justifies such action. 0 (t) To have an audit performed, at the expense of the Plan, of the payroll records of the Employer (at the Employer's place of business) to the extent necessary to determine whether the proper contributions required to be made to the Trust have been made; provided, however, if so requested by the Employer, instead of having such an audit conducted by the Plan's representative or agent, the Employer, at its expense may cause the firm of independent certified public accountants who regularly audit its books to furnish the Trustee with a certified statement addressed to the Trustee to the effect that they have reviewed such Employer's records and the collective bargaining agreement requiring contributions to the extent necessary to determine whether the proper contributions required to be made to the Trust have been made and identifying the nature and extent of any underpayment and the periods involved. Any audit performed by the Employer's firm of independent certified public accountants shall be at least as comprehensive in scope as the audit procedures utilized by the Plan's representative or agent in the audits of Employer contributions performed pursuant to this paragraph. Any such audit shall be limited solely to the information necessary to verify that proper contributions have been made to the Trust, and the Employer shall not be required to provide any information or documents beyond the scope of this purpose. MW374602BEC:MBW 06/21/1999 VII-5 0 (u) To establish and accumulate as part of the Trust a reserve or reserves, adequate, in the opinion of the Trustee, to carry out the purposes of the Plan. (v) To receive contributions or payments from any source whatsoever to the extent permitted by law. (w) To pay membership dues in educational and other organizations operated for purposes related to the Plan. (x) To attend and participate in conferences, seminars and similar educational meetings, which the Trustee deems helpful to it in the operation, administration, control or management of the Plan or Trust and to cause payment for all reasonable expenses therefor by the Trust. (y) To do all acts, whether or not expressly authorized herein, which the Trustee may deem necessary or proper in connection with the Plan, although the power to do such acts is not specifically set forth herein. 7.4 Expenses. Expenses of administering and operating the Plan 0 and Trust shall be paid by the Plan (unless paid by the Union or Employer). MW374602BEC:MBW 06/21/1999 VII-6 ARTICLE VI11 Contributions and Collections 8.1 Contributions to Trust. The Employer's financial obligation to the Plan and Trust is limited to making continuing and proper payments to the Trust as required by the collective bargaining or other written agreement to which the Employer is a party The Employer shall have no liability for fimding or paying the benefits provided under the Plan. In no event shall the Union or Employer, directly or indirectly, receive any refund on contributions made to the Trust, except in case of a bona fide mistake (and if a refund in such circumstances is permitted by applicable law and will not adversely affect the tax-exempt status of the Trust). Upon payment to the Trustee, all responsibilities of the Employer for its contributions shall cease. The Employer's obligation under the collective bargaining agreement to contribute to the Trust shall not be subject to setoff or counterclaim by the Employer for any liability of the Union or an Employee to the Employer. No contributions received by the Trust shall be deemed wages due to Employees; provided, however, in the event of the Employer's insolvency or liquidation the preceding shall not act to preclude the collection of contributions pursuant to a priority allowed for "wages" if the law recognizes such contributions as "wages" for such purposes. a 8.2 Transmission of Reports and Contributions, The Trustee shall establish a uniform system with the Employer for the timely transmission of such reports and contributions, as the Trustee deems necessary, and shall also establish a periodic date on which such reports and contributions shall be due; provided, any such reporting and contribution dates so established shall be consistent with the Employer's collective bargaining agreements. 8.3 Delinquent Contributions, The Trustee shall immediately notify the Employer of a delinquency, mistake or discrepancy in its report or contribution. If the Employer refuses or fails to make contributions or a correct report, the Trustee shall have authority to take any one or more of the following actions: (a) Establish rules and regulations providing for liquidated damages to be added to any delinquent contributions and to take such legal action, including proceedings at law, in equity or, if the Trustee so chooses to submit the issue, to arbitration, as in its discretion may be necessary to collect contributions and liquidated damages assessed by them and to recover from any delinquent e MW374602BEC:MBW 03/09/2000 VIII- 1 e contributor on behalf of the Plan all costs and reasonable attorney's fees incurred in connection therewith. (b) Terminate the Employer from further participation in the Plan by giving notice of termination to the Employer and the Employees of such Employer. Such notice shall state the cause for termination and shall state the date on which the benefits provided by the Plan for the Employer's Employees shall cease. MW374602BEC:MBW 03109/2000 VIII-2 ARTICLE IX Controversies and Disputes 9.1 Reliance Upon Records. In any controversy, claim, demand, suit at law, or other proceeding between any Participant or any other person and the Trustee, the Trustee shall be entitled to rely upon any facts appearing in the records of the Trustee, certified to the Trustee by the Union or the Employer, any facts which are of public record and any other evidence pertinent to the issue involved. 9.2 p. All questions or controversies, of whatsoever character, arising in any manner or between any parties or persons in connection with the Trust or Plan or their operation, whether as to any claim for benefits, or as to the construction of language or meaning of this Agreement, or the rules and regulations adopted by the Trustee, or as to any writing, decision, instrument or account in connection with the operation of the Trust or Plan or otherwise, shall be submitted to the Trustee or, where Trustee responsibility has been delegated to others, to such delegates for decision. The decision of the Trustee or its delegates, shall be binding upon all persons dealing with the Trust or Plan or claiming any benefit thereunder, except to the extent that such decision may be determined to be arbitrary or capricious by a court having jurisdiction over such matter. 0 9.3 Compromise. The Trustee may, in its sole discretion, compromise or settle any claim or controversy, and any decision made by the Trustee in compromise or settlement of a claim or controversy or any compromise or settlement agreement entered into by the Trustee, shall be conclusive and binding on all parties. 9.4 Right to Obtain Adjudication of Disputes. In the event any question or dispute shall arise as to the proper person or persons to whom any payments shall be made hereunder, the Trustee may withhold such payment until an adjudication of such question or dispute, satisfactory to the Trustee, in its sole discretion, shall have been made, or the Trustee shall have been adequately indemnified against loss to its satisfaction. MW374602BEC:MBW 03/09/2000 IX- 1 ARTICLE X Amendments 10.1 Method of Amendment. This Agreement may be amended in writing at any time as follows: The Trustee shall submit the amendment in writing to the Employer and to the Union. Within 30 days after date of mailing of said amendment, the Employer or Union may present in writing to the Trustee its objection thereto. If the Union or the Employer object, then the amendment shall not become effective. If, however, within the aforesaid time such Union or Employer do not present such objection, then the amendment shall become effective as of the effective date set forth in the amendment. If the Union or the Employer object to an amendment the Trustee can submit the amendment to a third party arbitrator whose decision shall be binding upon all parties. 10.2 Limitation on Amendments. No amendment shall be adopted which alters the basic purpose of the Plan or Trust, conflicts with any applicable law or government regulation, causes the use or diversion of any part of the Trust for purposes other than those authorized herein, retroactively deprives anyone of a vested right or interest, increases the burdens or obligations of the Union or Employer except to the extent provided herein or permitted in its collective bargaining or other written agreement or affects the tax-exempt status of the Trust. 0 MW374602BEC:MBW 03/09/2000 x- 1 ARTICLE XI Termination 1 1.1 Term of Plan and Trust. The Plan and Trust shall continue until all the collective bargaining agreements providing for contributions to the Trust have expired and negotiations for extension thereof have ceased. The Plan may be terminated at an earlier date by written agreement of the Union and Employer, which agreement shall be served upon the Trustee by registered mail. The termination shall not be effective until 60 days after mailing of such written agreement to the Trustee. 1 1.2 Complete Termination of Plan and Trust. In the event the obligations of the Employer to make contributions to the Trust shall terminate or the Plan and Trust otherwise terminates, the Trustee shall determine the disposition of any assets in the Trust remaining after all expenses of the Plan have been paid; provided that any such distribution shall be made only for the benefit of former Participants and for the purposes set forth in the Plan. Upon the termination of the Plan and Trust, the Trustee shall continue in such capacity for the purpose of dissolution of the Trust with full powers as herein provided and may execute any and all instruments which may be required. The Trustee may defer any distribution upon termination pending receipt of a favorable determination letter from the Internal Revenue Service that the termination will not adversely affect the tax-exempt status of the Trust. 0 MW374602BEC:MBW 03/09/2000 XI- I ARTICLE XI1 General Provisions 12.1 Title to the Trust. Title to the Trust shall be vested in and remain exclusively in the Trustee and no Employer, Union, Employee or any beneficiary shall have any right, title or interest in the Trust nor any right to contributions to be made thereto, nor any claim against the Employer on account thereof, except only as provided from time to time by this Agreement or by any group insurance policy purchased hereunder and then only to the extent of the benefits payable from such policy or out of the Trust. 12.2 Liability of Union and Emulover. Neither the Union nor the Employer shall be responsible for the acts of the Trustee or for the debts, liabilities, obligations or insufficiency of the Plan or Trust. 12.3 Nonalienation of Benefits. The Trust shall not be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge by any person other than the Trustee and its duly authorized representatives, and by such Trustee or representatives, only to the extent and for the purposes as herein specifically provided. a 12.4 Prohibition of Diversion of Trust. It shall be impossible by operation of the Trust or by its natural termination, by power of revocation or amendment, by the happening of any contingency, by collateral arrangement or by any other means, for any part of the corpus or income of the Trust or any funds contributed thereto to be used for, or diverted to purposes other than the exclusive benefit of Participants, former Participants, their beneficiaries or dependents. No part of net earnings of the Trust shall inure (other than benefit payments as outlined above) to the benefit of the Employer, Union or any individual; provided, however, a contribution made by the Employer as the result of a mistake may be returned to the Employer if the Trustee so direct provided the repayment is not prohibited by applicable law and will not adversely affect the tax-exempt status of the Trust. 12.5 Incomuetency. In the event it is determined that any person entitled to receive benefits is unable to care for his affairs because of mental or physical incapacity, the benefits due such person may be paid to his legal guardian or conservator, or to any relative by blood or by marriage to be used and applied for the benefit of such person. Payment to such legal representative or relative of the persons on whose account benefits are payable shall operate to discharge the 0 MW374602BEC:MBW 03/09/2000 XII- 1 *. payor from any liability to such person or to anyone representing him or his interest and the Trustee shall have no duty or obligation to see that the funds are used or applied ,for the benefit of such person. 12.6 Information to be Furnished by Employer. The Employer shall furnish the Trustee such information as the Trustee may require in connection with the administration of the Plan. In the event of an alleged discrepancy in Employer contributions to the Trust or in any other data required from the Employer, the Trustee shall notify the Employer in writing of such alleged discrepancy and the period of time that the discrepancy is claimed to cover. On receipt of such written notice, the Employer shall promptly furnish to the Trustee any data requested that pertains to such alleged discrepancy. 12.7 Merger. The Trustee is hereby authorized to merge the Plan and the Trust, including the monies on deposit with any insurance carrier, or any portion thereof, with another health and welfare plan (in which either this Plan or the other plan may be the surviving plan), provided that said merger and transfer of assets in connection therewith shall be contingent upon receipt of a favorable determination letter from the Internal Revenue Service with respect to the continued qualification of the surviving health and welfare plan and trust after 0 effecting such merger. 12.8 Notice and Delivew of Documents. Any notice required to be given hereunder by mail shall be deemed to have been given as of the date of posting to the last known address of the addressee. 12.9 Gender, Number 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. Titles of articles and headings of sections and subsections are inserted for convenience of reference. They constitute no part of this Agreement and are not to be considered in the construction hereof. 12.10 Construction. This Agreement is created and accepted in the State of Wisconsin. All questions pertaining to is validity or construction not otherwise preempted by federal law shall be determined in accordance with the laws of the State of Wisconsin. If any provision contained in this Agreement or in any collective bargaining agreement pursuant to which this Agreement is created should be held unlawful, such provision shall be of no force and effect and this 0 MW374602BEC:MBW 03/09/2000 XI-2 -e Agreement or any such collective bargaining agreement shall be treated as if such provision had not been contained therein. 12.11 Countemarts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. IN WITNESS WHEREOF, the undersigned, as the Trustee of the City of Muskego and Muskego Police Association Retiree Health Trust, does hereby accept the trust created hereunder and agree to perform the duties, responsibilities and obligations under this Agreement as of the day, month and year first above written. UNION TRUSTEES EMPLOYERI NON-REP. TRUSTEES Thomas R. Schilling Paul P Geiszler - Jeffrey D. Zambo Dawn R. Gunderson MW374602BEC:MBW 03/09/2000 XII-3 CITY OF MUSKEG0 AND MUSKEG0 POLICE ASSOCIATION RETIREE HEALTH TRUST Effective August 1, 1999 1.1 1.2 1.3 3.,1 3.2 4.1 4.2 4.3 4.4 4.5 4.6 4.7 CITY OF MUSKEGO AND MUSKEG0 POLICE ASSOCIATION RETIREE HEALTH TRUST Table of Contents Page ARTICLE I Definitions and Construction Definitions Effective Date Construction ARTICLE I1 Creation and Acceptance of Trust I- 1 1-2 1-2 11-1 ARTICLE I11 Purpose of and Payments To and From Plan Purpose 111- 1 Payments To and From Trust 111-1 ARTICLE IV Designation of Trustee Number of Individuals Serving as Trustee Qualification of Trustee Identity of Trustee Acceptance of Appointment Tenure Resignation of a Trustee Removal of Trustee IV- 1 IV- 1 IV- 1 IV- 1 IV- 1 IV- 1 IV- 1 MW374602BEC:MBW OU22R000 I 4.8 4.9 5.1 5.2 5.3 5.4 6.1 6.2 6.3 6.4 7.1 7.2 7.3 7.4 8.1 8.2 8.3 Selection of Successor Trustee Action of Trustee ARTICLE V Organization and Operation of Trustee Office Immunity of the Trustee Compensation of Individual Trustee Service in More Than One Fiduciary Capacity ARTICLE VI Control and Management of Trust Control of Trust Management of Trust Trust Responsibilities Trust Powers ARTICLE VI1 Operation and Administration of Plan Authority of Trustee Plan Responsibilities Plan Powers Expenses ARTICLE VI11 Contributions and Collections Contributions to Trust Transmission of Reports and Contributions Delinquent Contributions Page iv-2 iv-2 v- 1 v- 1 v-2 v-2 VI- 1 VI- 1 vi-2 v1-2 v11-1 VII- 1 v11-2 v11-6 VIII- 1 VIII-1 VIII-1 MW374602BEC:MBW 0212212000 11 .. 9.1 9.2 9.3 9.4 10.1 10.2 11.1 11.2 12.1 12.2 12.3 12.4 12.5 12.6 12.7 12.8 12.9 ARTICLE IX Controversies and Disoutes Reliance Upon Records Determination by Trustee Binding Compromise Right to Obtain Adjudication of Disputes ARTICLE X Amendments Method of Amendment Limitation on Amendments ARTICLE XI Termination Term of Plan and Trust Complete Termination of Plan and Trust ARTICLE XI1 General Provisions Title to the Trust Liability of Union and Employer Nonalienation of Benefits Prohibition of Diversion of Trust Incompetency Information to be Furnished by Employer Execution of Documents Notice and Delivery of Documents Gender, Number and Headings Page IX- 1 IX- 1 IX- 1 IX- 1 x- 1 x- 1 XI- 1 XI- 1 x11-1 XII- 1 XII- 1 XII- 1 XI- 1 xii-2 x11-2 xii-2 xii-2 MW374602BEC.MBW 02/22/2000 ... 111 12.10 Construction 12.1 1 Counterparts MW374602BEC:MBW 02/22/2000 Page xi-2 xii-3 iv CITY OF MUSKEGO AND MUSKEGO POLICE ASSOCIATION RETIREE HEALTH TRUST This Agreement is adopted by the signatory Trustee hereto, effective as of August 1, 1999. WITNESSETH: WHEREAS, the Employer, as the result of collective bargaining, has agreed to adopt one or more programs to provide certain of its employees with post-employment health benefit subsidies; and WHEREAS, effective as of August 1, 1999 the Employer and the Union agreed to establish a tax-exempt vehicle under section 501(c)(9) of the Internal Revenue Code to hold funds and provide benefits pursuant to the post-employment health program; NOW, THEREFORE, for and in consideration of the premises and mutual covenants herein contained, the Trustee hereby agrees to adopt said Agreement in its entirety as follows: MW374602BEC:MBW 02/22/2000 ARTICLE I Definitions and Construction 1.1 Definitions. The following words and phrases shall have the meanings stated below: (a) Agreement. The Trust Agreement, the agreement set forth herein, as amended from time to time. (b) Emdovee. Any employee of the Employer on whose behalf payments are required to be made to the Trust by the Employer pursuant to a collective bargaining or other written agreement with a Union or the Trustee. The term "Employee" may also include former Employees and their dependents in accordance with rules of uniform application adopted by the Trustee. Notwithstanding the foregoing, no person may participate in the Plan who is prohibited by law from being covered under the Plan or Trust or whose inclusion would cause the Trust to lose its tax-exempt status. (c) Emplover. City of Muskego, Wisconsin. (d) Participant. Any Employee or former Employee who is eligible for benefits provided under the Plan. (e) Participation Ameement. An agreement in form and content acceptable to the Trustee which evidences the commitment of the signatory thereto to be bound by the adoption of the Plan and the Agreement. (0 m. City of Muskego and Muskego Police Association Retiree Health Plan. (g) m. The assets of the Plan, held in trust by the Trustee. (h) Trustee. The person or persons who are named according to the provisions of Article IV hereof and who have authority to control and manage the operation and administration of the Plan and who also have authority to control and manage the Trust. MW374602BEC:MBW 02l2U2000 I- 1 a (i) Union. The Muskego Police Association, which has entered into a collective bargaining agreement with the Employer requiring the Employer's participation in the Plan. 1.2 Effective Date. The effective date of the Trust is August 1, 1999. 1.3 Construction. This Plan shall be governed by and construed in accordance with the laws of the State of Wisconsin. Words used in the masculine gender shall include the feminine and words used in the singular shall include the plural, as appropriate. The words "hereof," "herein," "hereunder" and other similar compounds of the word "here" shall refer to the entire Plan, not to a particular section. All references to statutory sections shall include the section so identified as amended from time to time or any other statute of similar import. If the Code renders any provisions of this Agreement unenforceable, such provision shall be of no force and effect only to the minimum extent required by such law. MW374602BEC:MBW 02/22/2000 1-2 ARTICLE I1 Creation and Acceptance of Trust All payments made by the Employer to the Trust pursuant to collective bargaining or other written agreements and such other payments as shall from time to time be made to the Trust by the Employer or Employees, and all other money or property as shall lawfully become a part of the Trust, together with the income, gains and all other increments of any nature whatsoever, if any, therefrom, shall be held, managed and administered in trust pursuant to the terms of this Agreement. The Trust shall be known as the City of Muskego and Muskego Police Association Retiree Health Trust. The Trustee hereby accepts the trust created hereunder and agrees to perform the duties, responsibilities and obligations under this Agreement on its part to be performed. MW374602BEC:MBW 02/22/2000 11- 1 ARTICLE 111 Purpose of and Payments To and From Plan 3.1 Pumose. The purpose of the Plan is to apply the assets of the Trust to provide health care benefits, pursuant to the terms of the Plan, for Employees and their dependents after such Employees terminate employment with the Employer. Such benefits may be provided directly or through the purchase of insurance for Employees and their dependents. Except as otherwise provided herein, nothing in this Agreement shall increase or decrease the rights of any party to any collective bargaining agreement. 3.2 Payments To and From Trust. Payments to the Trust shall be made by the Employer in accordance with its collective bargaining or other written agreements and rules of the Trustee. Employees may also make payments to the Trust to the extent permitted by the collective bargaining agreements to which they are subject on a uniform and nondiscriminatory basis. Payments shall be made from the Trust to such persons or entities, in such manner, at such times, and in such amounts as are indicated by the Trustee from time to time in written directions. Payments from the Trust shall be made without limitation by reason of enumeration, for the following purposes: (a) To provide for: (i) the payment of all reasonable and necessary expenses of establishing the Plan (including the payment of benefits), collecting the Employer contributions and operating, administering, controlling or managing the Plan or Trust, including payment of membership dues in educational and other organizations operated for purposes related to the Plan and the payment of expenses incurred by the Trustee in connection with attending and participating in educational conferences, seminars and similar meetings; (ii) the employment of such administrative, legal, expert and clerical assistance as may be reasonably necessary; (iii) the purchase or leasing of such premises as may be necessary for the operation of the affairs of the Plan; and (iv) the purchase or leasing of such materials, supplies and equipment as the Trustee, in their discretion, find necessary or appropriate to the performance of its duties. MW374602BEC:MBW 02/22R000 111-1 (b) To pay the premiums on group insurance policies or other contracts obtained from any insurance company or from any association of medical health care personnel or facilities and to self-fund or otherwise to pay and provide for any benefits from time to time offered under the Plan. MW374602BEC:MBW 02/22/2000 111-2 ARTICLE IV Designation of Trustee 4.1 Number of Individuals Serving as Trustee. There shall be four individuals who shall serve as Trustee, two of whom shall be appointed by the Union and two of whom shall be appointed by the Employer. 4.2 Oualification of Trustee. No person shall be disqualified from being a Trustee hereunder by reason of the fact that he is or hereafter becomes a Participant hereunder. 4.3 Identity of Trustee. As of the date of the execution of this Agreement, the following persons have been designated and have been duly qualified and are serving as the Trustee: Union Trustees Employer Trustees Thomas R. Schilling David L. DeAngelis Jeffrey D. Zambo Dawn R. Gunderson 4.4 Acceptance of Appointment. Each person serving as Trustee shall consent to and accept his appointment as a Trustee in writing. 4.5 Tenure. Each person serving as Trustee shall continue to serve during the existence of the Plan and Trust until his death, incapacity, resignation or removal. 4.6 Resignation of a Trustee. A Trustee may resign and subsequent thereto shall be discharged from any further duty or responsibility hereunder by giving prior written notice to the entity that appointed the Trustee, which notice shall state the date such resignation shall take effect and such resignation shall take effect on said date unless a successor Trustee shall have been appointed at an earlier date in accordance with the provisions of section 4.8 hereof, in which event such resignation shall take effect immediately upon the appointment of such successor Trustee. A Trustee, upon leaving office, shall forthwith turn over and deliver to the other persons serving as Trustee any and all property in his possession or under his control which belongs to the Plan. MW374602BEC:MBW 02/22/2000 IV- 1 0 4.7 Removal of Trustee. A Trustee appointed by the Employer may be removed from office at any time by the Employer. A Trustee appointed by the Union may be removed from office at any time by the Union. Any notice of removal, in order to be effective, shall be delivered to the Trustee, shall specify the date the removal shall take effect, and thereafter appoint a successor to fill the vacancy caused by the removal. I I I 4.8 Selection of Successor Trustee. If a person serving as Trustee shall die, resign, be removed, become incapacitated or refuse to act, a successor Trustee shall be appointed forthwith by written instrument signed by an authorized representative of the entity that had appointed the Trustee who is being replaced. 4.9 Action of Trustee. The Trustee may act at a meeting upon the affirmative vote of a majority of its then serving members. In the absence of a meeting of the members, the Trustee may act by resolution signed by all of its members. MW374602BEC:MBW 02/22/2000 IV-2 0 ARTICLE V Organization and Operation of Trustee 5.1 Office. The Trustee shall establish an office in Muskego, Wisconsin at such location as the Trustee may approve for the transaction of the business of the Plan, the exact location of which is to be made known to the parties interested in said Plan. At such office there shall be maintained the books, reports and records pertaining to the Plan and its administration. ~ 5.2 Immunity of the Trustee. i (a) Exculpation of Trustee and Plan Emulovees From I behalf of other individuals for any act or failure to act unless such act or failure to I act is due to his own gross negligence or willful misconduct or lack of good faith. 1 ~0 (i) Any instrument, application, notice, request, ~ Liability. No Trustee or Plan employee shall incur any liability individually or on The fiduciaries must act as a “prudent man” for the “exclusive benefit” of the participants. A Trustee or Plan employee may act or rely upon any of the I following: signed letter, telegram or other paper or document believed by him to be genuine and to contain a true statement of facts and to be signed or sent by the proper person; or l i ! (ii) The advice, opinion, records, reports or recommendations of any accountant, actuary, administrator, attorney, consultant, co-trustee, investment agent or investment manager or any other advisor selected by the Trustee with reasonable care. (b) Indemnification of Trustee and Plan Emulovees. The Trustee shall cause any person who is or has served as a Trustee or employee of the Plan to be indemnified out ofthe Trust against all damages, liabilities and expenses incurred by or imposed on him in connection with any claim, suit, action or proceeding concerning the Plan or his acts or omissions as a Trustee or employee thereof, including, without limitation, legal fees and amounts paid in any compromise or settlement unless such acts or omissions constitute gross negligence, willful misconduct or lack of good faith. Any indemnification provided herein shall be limited to amounts not collected pursuant to valid and enforceable liability insurance policies. a MW374602BEC:MBW 02/22/2000 v- 1 e To the extent permitted by law, the Trustee, in its discretion, may also cause the Trust to indemnify any person who is rendering services to the Plan against all damages, liabilities and expenses incurred by or imposed upon such a person in connection with any claim, suit, action or proceeding concerning the Plan or the acts or omissions of such a person, including without limitation, legal fees and amounts paid in any compromise or settlement unless such act or omission constitutes gross negligence, willful misconduct or lack of good faith. 5.3 Compensation of Individual Trustee. An individual Trustee shall not be paid any compensation from the Trust for his services hereunder, but the Trustee may receive reimbursement from the Trust for reasonable expenses incurred on behalf of the Plan or Trust or in connection with its duties hereunder. 5.4 Service in More Than One Fiduciary Cauacitv. Any individual, entity or group of persons may serve in more than one fiduciary capacity with respect to the Plan, the Trust or both to the extent such is permitted by law. MW374602BEC:MBW 02/2212000 v-2 ARTICLE VI Control and Management of Trust 6.1 Control of Trust. The Trustee shall be the named fiduciary of the Trust and shall have the power to control the Trust and to perform all such acts, to take all such proceedings, and to exercise all such rights and privileges, although not specifically mentioned herein, as the Trustee may deem necessary or advisable to administer the Plan and Trust or to carry out the purposes of the Plan and this Agreement. 6.2 Management of Trust. The management, including the acquisition and disposition of property comprising the Trust, shall be as follows: (a) General Authority. The Trustee shall have exclusive authority and responsibility with respect to the custody and management of the Trust, except to the extent any such authority has been delegated pursuant to the provisions of subparagraph (b) or (c) below and subparagraph (0 or (g) of section 7.3. (b) Delegation of Custody. The Trustee is authorized to delegate custody of all or any portion of the Trust. Such custodian shall hold the Trust as directed in writing by the Trustee. (c) Delegation of Investment Control. The Trustee may appoint one or more investment managers to supervise and direct the investment and reinvestment of a portion or all of the Trust in accordance with the provisions of the Agreement and in the same manner and with the same powers, duties, obligations, responsibilities and limitations as apply to the Trustee as set forth herein. Any investment manager so appointed shall be an investment advisor registered under the Investment Advisers Act of 1940, a bank as defined in such Act or an insurance company which is qualified to manage the assets of employee benefit plans under the laws of more than one state. As a condition to its appointment, an investment manager shall acknowledge in writing that it is a fiduciary with respect to the Plan. The Trustee may furnish an investment manager with written investment guidelines for investment, which guidelines may include directions with respect to the diversification of the investments. Any investment manager shall receive such reasonable compensation chargeable against the Trust as shall be agreed upon with the Trustee. The trustees may and must monitor the investment expert and remove, instruct, or restrict the expert if hisher work is inadequate. MW374602BEC:MBW 02/22/2000 VI-1 6.3 Trust Resuonsibilities. In connection with the management and control of the Trust, unless the following responsibilities are allocated or delegated in accordance with the procedures set forth in sections 7.3(f) and (g) or elsewhere herein, the Trustee shall: (a) cause the assets of the Plan to be held and administered in trust; (b) cause accounts of all investments, receipts, disbursements and all other transactions affecting all or any portion of the Trust to be maintained; and (c) pay from the Trust all taxes of any and all kinds whatsoever that may be levied or assessed under existing or future laws upon, or in respect of, the Trust or its income. 6.4 Trust Powers. The Trustee shall have such powers as may be necessary to discharge its responsibilities in managing and controlling the Trust. The Trustee shall have full and complete authority and control over the Trust unless such authority or control is allocated or delegated by the Trustee in accordance with the procedures set forth in sections 7.3(Q and (g) or elsewhere herein. Any determination made by the Trustee in the exercise of these powers shall be binding on all persons. In addition to such powers as are conferred by law or as set forth elsewhere in this Agreement, the powers of the Trustee in connection with their managing and controlling the Trust shall include, but shall not be limited to, the following: (a) To invest and reinvest all or part of the principal and income of the Trust, without distinction between principal and income as the Trustee determines, in such securities or in such property, real or personal, or share or part thereof, or part interest therein, wherever situated, as the Trustee shall deem advisable, including, but not limited to, governmental, corporate or personal obligations, shares of stock, common or preferred, whether or not listed on any exchange, participations in mutual investment funds, bonds and mortgages, and other evidences of indebtedness or ownership, including stocks, bonds or other obligations secured by personal property and participations in any common trust fund established or maintained for the collective investment of fiduciary funds as set forth herein. If required by the bank, prior to investing in a common trust fund the Trustee and the bank maintaining the common trust fund shall MW374602BECMBW 02/22/2000 VI-2 a execute an agreement designating the common trust fund and providing that during the time that any part or all of the Trust is held in such common trust fund the declarations of trust creating the common trust fund shall be part of this Agreement; provided that said declarations of trust comply with the Rules and Regulations of the Comptroller of the Currency, if necessary, and the laws of any state having jurisdiction thereover and have, where appropriate, been approved by the Internal Revenue Service. (b) To sell, convey, transfer, exchange, partition, lease for any term, mortgage, pledge or otherwise dispose of any and all property, real or personal or to grant options with respect to any property held by the Trustee by private contract or at public auction or to surrender for cash value any contracts issued by an insurance company and held by the Trustee. Any sale, option or other disposition of property may be at such time and on such terms as the Trustee sees fit. Any sale, option or other disposition of property may be made for cash or upon credit, or partly in cash and partly on credit. No person dealing with the Trustee shall be bound to see to the application of the purchase money or to inquire into the validity, expedience or propriety of any such sale, option or other disposition. I (c) To receive, hold, manage, invest, reinvest, improve, repair and control all monies and property, real or personal, at any time forming part of the Trust. (d) To purchase and sell contracts or other properties through such broker or brokers as the Trustee may choose. (e) To vote or refrain from voting upon any stocks, bonds or other securities; to give general or special proxies or powers of attorney with or without power of substitution; to appoint one or more individuals or corporations as voting trustees under voting trust agreements pursuant to such voting agreements to delegate to such voting trustees' discretion to vote; to exercise any conversion privileges, subscription rights, or other options, and to make any payments incidental thereto; to oppose, or to consent to, or otherwise participate in, corporate reorganizations or other changes affecting corporate securities, and to pay any assessments or charges in connection therewith; and generally to exercise any of the powers of an owner with respect to property held as part of the Trust. (f) To cause any securities or other property to be registered in the name of the Trust, the Trustee, a custodian or in the name of a nominee without designating the same as trust property, and to hold any investments in bearer form or otherwise in such form that title passes by delivery, a MW374602BEC:MBW 02/22/2000 VI-3 but the books and records of the Trustee shall at all times show that all such investments are part of the Trust. (g) To exercise or dispose of any right they may have as the holders of any security to convert the same into another or other securities, or to acquire an additional security or securities, to make any payments, exchange any security or do any act with reference thereto which they may deem advisable. (h) To consent to take any action in connection with (including the deposit of any property with and participation with respect to any protective or similar committee) and receive and retain any securities or other property resulting from any reorganization, consolidation, merger, readjustment of the financial structure, sale, lease or other disposition of assets of any corporation or other organization, the securities of which may constitute a portion of the Trust, and the Trustee may delegate to any such protective or similar committee such power and authority as they may deem proper in the premises and may pay such portion of the expenses and compensation of such committee as they deem proper. (i) To borrow or raise money for the purposes of the Plan in such amount, and upon such terms and conditions as the Trustee shall deem advisable; and for any sum so borrowed to issue the promissory note of the Plan, and to secure the repayment thereof by creating a security interest in all or any part, of the Trust; and no person lending such money shall be obligated to see that the money lent is applied to Trust purposes or to inquire into the validity, expedience or propriety of any such borrowing. (i) To hold cash, uninvested, for such length of time as the Trustee may determine without liability for interest thereon. (k) To make, execute, acknowledge and deliver any and all documents of transfer and conveyance, including but not limited to, deeds, leases, mortgages, conveyances, contracts, waivers and releases, and any and all other instruments that may be necessary or appropriate to carry out the powers herein granted. (1) To renew or extend or participate in the renewal or extension of any mortgage, upon such terms as may be deemed advisable, and to agree to a reduction in the rate of interest on any mortgage or to any other modification or change in the terms of any mortgage, or of any guarantee pertaining thereto, in any manner and to any extent that may be deemed advisable for the protection of the Trust or the preservation of the value of the investment; to waive any default whether in the performance of any covenant or conditions of any MW374602BEC:MBW 02RU2000 VI-4 mortgage or in the performance of any guarantee or to enforce any such default in such manner and to such extent as may be deemed advisable; to exercise and enforce any and all rights of foreclosure, to bid on property in foreclosure, to take in connection therewith to release the obligation on the bond secured by such mortgage and to exercise and enforce in any action, suit or proceeding at law or in equity any rights or remedies in respect of any such mortgage or guarantee. , a deed in lieu of foreclosure with or without paying any consideration therefor, and I (m) To employ suitable agents, advisors and counsel as they may deem necessary and advisable for the efficient operation and administration of the Trust and to charge the expense thereof to the Trust to the extent permitted by applicable law. I (n) To form a corporation or corporations under the laws of any jurisdiction, to participate in the forming of any such corporation or corporations or acquire an interest in or otherwise make use of any corporation or any property. I corporations already formed, for the purpose of investing in and holding title to (0) To continue to have and to exercise after the e termination of the Plan and until final distribution, all of the title, powers, discretions, rights and duties conferred or imposed upon the Trustee hereunder, or by law. MW374602BEC:MBW OV22ROOO VI-5 ARTICLE VI1 Operation and Administration of Plan 7.1 Authority of Trustee. The Trustee shall be the named fiduciary for the Plan and shall have authority to and shall be responsible for the operation and administration of the Plan and shall conduct the business and activities of the Plan in accordance with the provisions of the Plan and this Agreement. 7.2 Plan Responsibilities. The Trustee shall have full and complete authority and control over the Plan. In connection with its operation and administration of the Plan, unless the following responsibilities are allocated or delegated in accordance with the procedures set forth in sections 7.3(f) and (g), the Trustee shall: (a) Formulate and adopt a program of benefits consistent with the purposes of the Plan. Such program of benefits shall be described in an insurance contract, benefit schedules, employee benefits booklet or other form of written instrument. (b) Determine the right of any person to a benefit. In the exercise of this responsibility, the Trustee shall provide every applicant whose application for a benefit is denied wholly or partially with a written notice setting forth the reason or reasons for the denial and any additional information required by applicable law. Further, the Trustee shall adopt a written appeal procedure which shall provide a claimant with a reasonable opportunity to appeal a full or partial denial of a benefit application. (c) Establish and maintain a funding policy and method consistent with the Plan’s objectives and in accordance with any law applicable to the Plan. (d) Maintain books of account, records and other data as may be necessary for the proper administration and operation of the Plan, and a record of all its transactions and actions taken. All of said books, records and data shall be available at the office of the Plan during business hours for inspection by authorized representatives of the Employer or the Union and by the Trustee. MW374602BEC:MBW 06/21/1999 VII-1 (e) Prepare, execute, file and retain a copy for the Plan records of all reports required by law or deemed by them to be necessary or appropriate for the proper administration and operation of the Plan. (0 Maintain the books of the Plan. (8) Procure and maintain at the expense of the Plan such bonds as are required by law, together with such additional bonding coverage as they may determine for the Trustee, employees of the Plan, any agents acting on behalf of or retained by the Trustee and persons to whom fiduciary responsibilities have been delegated. 7.3 Plan Powers. The Trustee shall have such powers as may be necessary to discharge their responsibilities in managing and controlling the general operations and administration of the Plan. The Trustee shall have full and complete authority and control with respect to the operations and administration of the Plan unless such authority or control is allocated or delegated by the Trustee in accordance with the procedures set forth in subparagraphs (0 and (g) below. Any determination by the Trustee in the exercise of these powers shall be binding on all persons. In addition to such other powers as are conferred by law or are set forth elsewhere in this Agreement, the powers of the Trustee in connection with their operation and administration of the Plan shall include, but shall not be limited to, the following: (a) To amend the program of benefits at any time and from time to time as deemed appropriate by the Trustee. The Trustee may, in the event collective bargaining agreements between the Employer and the Union provide for different amounts to be contributed to the Plan by the Employer (or permit contributions by Employees), establish various programs or classes of benefits to be paid Participants on an equitable basis relevant to such different amounts of contributions. The Trustee shall have full authority to determine all questions of any nature relating to the benefits to be provided based on what in their opinion the Plan can reasonably provide after adequate provision for reserves and costs of administration. (b) To determine, from time to time, who shall be Participants, who shall be eligible for benefits under the Plan; the nature, type, character and amount of benefits to be provided including the ability to reduce benefits under the Plan to the extent permitted by applicable law and the medium (k, insurance contract, medical or hospital service contract, self-funding, maintenance of medical and hospital facilities, health maintenance organizations or otherwise) by which such benefits shall be provided. In determining who shall be MW374602BEC:MBW 06/21/1999 VII-2 eligible for benefits under the Plan, the Trustee may establish standards for granting or denying such eligibility to Employees. (c) To extend the coverage of the Plan to the Employer and its Employees upon such terms and conditions as the Trustee deems appropriate. (d) To select, apply for, accept delivery and act as policyholder under any group insurance policy purchased for the Plan and to exercise all rights or privileges granted to a policyholder by the provisions of each policy or allowed by the insurance carrier of such policy, including the right to receive and hold as part of the Trust all dividends and experience rating refunds or reimbursements of any kind whatsoever, regardless of the designation thereof, made on any such policy and to cancel any policy or policies of insurance which they have caused to be issued and may purchase in lieu thereof other like insurance from another insurance carrier or carriers. The Trustee may agree with each insurance carrier upon all the provisions to be contained in each policy and to any alteration, modification or amendment of any policy. The Trustee may take any action respecting any policy or the insurance provided thereunder which may be necessary or advisable, in their sole judgment, and no insurance carrier shall be required to inquire into the authority of the Trustee with regard to any dealings in connection with any policy. Any powers granted to the Trustee under this Agreement with respect to insurance shall extend to any medical or hospital service contract or to any other means of providing benefits under the Plan. (e) To employ such consultants, accountants, counsel or other persons as they deem necessary or desirable in connection with the administration of the Plan and to employ one or more persons to render advice with regard to any responsibility or power of the Trustee. The costs of such services and other administrative expenses shall be paid by the Trust. (f) To designate in writing persons who are not serving as Trustee to carry out fiduciary or nonfiduciary responsibilities or duties of the Trustee, and in the event of such a designation the Trustee shall not be liable for any act or omission of such a person. (g) To construe and interpret the Agreement and the Plan. (h) To receive from the Employer, the Union, the Participants or their beneficiaries or dependents such information as shall be necessary for the proper administration of the Plan. MW374602BEC:MBW 06/21/3999 VII-3 (i) To furnish the Employer and the Union, such annual reports with respect to the administration of the Plan as are reasonable and appropriate. (j) To maintain such bank accounts as they deem appropriate for the administration of the Plan; provided, however, all checks, drafts, vouchers or other withdrawals of funds from the Trust shall be signed by the Trustee, or by a person to whom such responsibility has been delegated. (k) To receive and review reports of the financial condition and of the receipts and disbursements of the Trust. (I) To prescribe procedures to be followed by any persons in applying for any benefits under the Plan; and to designate in the forms or documents, evidence and such other information as the Trustee may reasonably deem necessary, desirable or convenient to support an application for benefits under the Plan. (m) To adopt such by-laws, rules, regulations, actuarial tables, forms and procedures from time to time as they deem advisable and appropriate in the proper administration of the Plan, provided the same are consistent with the terms of this Agreement and do not modify or increase the burdens or obligations of the Employer or Union under the terms of its collective bargaining agreement. (n) To have a judicial settlement of their accounts and judicial determination of any questions in connection with their duties and obligations hereunder, or in connection with the administration or distribution thereof. The costs and expenses, including accounting and legal fees, for such judicial settlement of accounts or other judicial determination shall be paid by the Plan as a general administration expense to the extent permitted by applicable law. (0) To file, from time to time, with the Union and the Employer a statement of their accounts and such other reports as the Trustee deems necessary or appropriate and the Union and Employer may enter into an agreement approving and allowing such statement, account or report and any such agreement shall be binding and conclusive upon all persons whomsoever, and shall constitute a full discharge and acquittance of the Trustee with respect to the matters set forth in such statement, account or report. @) To purchase out of the assets of the Trust, insurance for the benefit of the Plan andor the protection of the Trustee, Plan employees or MW374602BEC:MBW 06/21/1999 VII-4 other fiduciaries of the Plan against any losses by reason of errors or omissions or breach of fiduciary duty. (4) To enter into any and all contracts and agreements for carrying out the terms of the Plan and for the administration and operation of the Plan and to do all acts as they, in their discretion, may deem necessary or advisable, and such contracts and agreements and acts shall be binding and conclusive on the parties hereto and on the Participants involved. (r) To borrow money, with or without security, for the Plan. (s) To extend the time of payment of any obligation and to compromise and accept either total or partial satisfaction, or write off as uncollectible any Employer contribution to the Plan or any other indebtedness or other obligation as the Trustee may deem appropriate, provided such action is consistent with applicable law. An extension of time of payment, compromise or a decision to write off as uncollectible shall be deemed appropriate if the Trustee determines that the likelihood of collection or the anticipated expense of collecting justifies such action. (t) To have an audit performed, at the expense of the Plan, of the payroll records of the Employer (at the Employer's place of business) to the extent necessary to determine whether the proper contributions required to be made to the Trust have been made; provided, however, if so requested by the Employer, instead of having such an audit conducted by the Plan's representative or agent, the Employer, at its expense may cause the firm of independent certified public accountants who regularly audit its books to hish the Trustee with a certified statement addressed to the Trustee to the effect that they have reviewed such Employer's records and the collective bargaining agreement requiring contributions to the extent necessary to determine whether the proper contributions required to be made to the Trust have been made and identifying the nature and extent of any underpayment and the periods involved. Any audit performed by the Employer's fm of independent certified public accountants shall be at least as comprehensive in scope as the audit procedures utilized by the Plan's representative or agent in the audits of Employer contributions performed pursuant to this paragraph. Any such audit shall be limited solely to the information necessary to verify that proper contributions have been made to the Trust, and the Employer shall not be required to provide any information or documents beyond the scope of this purpose. VII-5 (u) To establish and accumulate as part of the Trust a reserve or reserves, adequate, in the opinion of the Trustee, to carry out the purposes of the Plan. (v) To receive contributions or payments from any source whatsoever to the extent permitted by law. (w) To pay membership dues in educational and other organizations operated for purposes related to the Plan. (x) To attend and participate in conferences, seminars and similar educational meetings, which the Trustee deems helpful to it in the operation, administration, control or management of the Plan or Trust and to cause payment for all reasonable expenses therefor by the Trust. (y) To do all acts, whether or not expressly authorized herein, which the Trustee may deem necessary or proper in connection with the Plan, although the power to do such acts is not specifically set forth herein. 1) 7.4 ExrJenses. Expenses of administering and operating the Plan and Trust shall be paid by the Plan (unless paid by the Union or Employer). VII-6 ARTICLE VI11 Contributions and Collections 8.1 Contributions to Trust. The Employer's financial obligation to the Plan and Trust is limited to making continuing and proper payments to the Trust as required by the collective bargaining or other written agreement to which the Employer is a party. The Employer shall have no liability for funding or paying the benefits provided under the Plan. In no event shall the Union or Employer, directly or indirectly, receive any rehnd on contributions made to the Trust, except in case of a bona fide mistake (and if a refund in such circumstances is permitted by applicable law and will not adversely affect the tax-exempt status of the Trust). Upon payment to the Trustee, all responsibilities of the Employer for its contributions shall cease. The Employer's obligation under the collective bargaining agreement to contribute to the Trust shall not be subject to setoff or counterclaim by the Employer for any liability of the Union or an Employee to the Employer. No contributions received by the Trust shall be deemed wages due to Employees; provided, however, in the event of the Employer's insolvency or liquidation the preceding shall not act to preclude the collection of contributions pursuant to a priority allowed for "wages" if the law recognizes such contributions as "wages" for such purposes. 0 8.2 Transmission of ReDorts and Contributions. The Trustee shall establish a uniform system with the Employer for the timely transmission of such reports and contributions, as the Trustee deems necessary, and shall also establish a periodic date on which such reports and contributions shall be due; provided, any such reporting and contribution dates so established shall be consistent with the Employer's collective bargaining agreements. 8.3 Delinquent Contributions. The Trustee shall immediately notify the Employer of a delinquency, mistake or discrepancy in its report or contribution. If the Employer refuses or fails to make contributions or a correct report, the Trustee shall have authority to take any one or more of the following actions: (a) Establish rules and regulations providing for liquidated damages to be added to any delinquent contributions and to take such legal action, including proceedings at law, in equity or, if the Trustee so chooses to submit the issue, to arbitration, as in its discretion may be necessary to collect contributions and liquidated damages assessed by them and to recover from any delinquent a MW374602BEC.MBW 02/22/2000 VIII- 1 a contributor on behalf of the Plan all costs and reasonable attorney's fees incurred in connection therewith. (b) Terminate the Employer from further participation in the Plan by giving notice of termination to the Employer and the Employees of such Employer. Such notice shall state the cause for termination and shall state the date on which the benefits provided by the Plan for the Employer's Employees shall cease. MW374602BEC:MEiW 02/22/2000 VIII-2 ARTICLE IX Controversies and Disputes 9.1 Reliance Upon Records. In any controversy, claim, demand, suit at law, or other proceeding between any Participant or any other person and the Trustee, the Trustee shall be entitled to rely upon any facts appearing in the records of the Trustee, certified to the Trustee by the Union or the Employer, any facts which are of public record and any other evidence pertinent to the issue involved. 9.2 Determination by Trustee Binding. All questions or controversies, of whatsoever character, arising in any manner or between any parties or persons in connection with the Trust or Plan or their operation, whether as to any claim for benefits, or as to the construction of language or meaning of this Agreement, or the rules and regulations adopted by the Trustee, or as to any writing, decision, instrument or account in connection with the operation of the Trust or Plan or otherwise, shall be submitted to the Trustee or, where Trustee responsibility has been delegated to others, to such delegates for decision. The decision of the Trustee or its delegates, shall be binding upon all persons dealing with the Trust or Plan or claiming any benefit thereunder, except to the extent that such decision may be determined to be arbitrary or capricious by a court having jurisdiction over such matter. 9.3 Compromise. The Trustee may, in its sole discretion, compromise or settle any claim or controversy, and any decision made by the Trustee in compromise or settlement of a claim or controversy or any compromise or settlement agreement entered into by the Trustee, shall be conclusive and binding on all parties. 9.4 Right to Obtain Adiudication of Disputes. In the event any question or dispute shall arise as to the proper person or persons to whom any payments shall be made hereunder, the Trustee may withhold such payment until an adjudication of such question or dispute, satisfactory to the Trustee, in its sole discretion, shall have been made, or the Trustee shall have been adequately indemnified against loss to its satisfaction. MW374602BEC:MBW OU22R000 IX-1 ARTICLE X Amendments 10.1 Method of Amendment. This Agreement may be amended in writing at any time as follows: The Trustee shall submit the amendment in writing to the Employer and to the Union. Within 30 days after date of mailing of said amendment, the Employer or Union may present in writing to the Trustee its objection thereto. If the Union or the Employer object, then the amendment shall not become effective. If, however, within the aforesaid time such Union or Employer do not present such objection, then the amendment shall become effective as of the effective date set forth in the amendment. If the Union or the Employer object to an amendment the Trustee can submit the amendment to a third party arbitrator whose decision shall be binding upon all parties. 10.2 Limitation on Amendments. No amendment shall be adopted which alters the basic purpose of the Plan or Trust, conflicts with any applicable law or government regulation, causes the use or diversion of any part of the Trust for purposes other than those authorized herein, retroactively deprives anyone of a vested right or interest, increases the burdens or obligations of the Union or Employer except to the extent provided herein or permitted in its collective bargaining or other written agreement or affects the tax-exempt status of the Trust. MW374602BEC:MBW 02t22ROOO x- 1 ARTICLE XI Termination 1 1.1 Term of Plan and Trust. The Plan and Trust shall continue until all the collective bargaining agreements providing for contributions to the Trust have expired and negotiations for extension thereof have ceased. The Plan may be terminated at an earlier date by written agreement of the Union and Employer, which agreement shall be served upon the Trustee by registered mail. The termination shall not be effective until 60 days after mailing of such written agreement to the Trustee. 11.2 Complete Termination of Plan and Trust. In the event the obligations of the Employer to make contributions to the Trust shall terminate or the Plan and Trust otherwise terminates, the Trustee shall determine the disposition of any assets in the Trust remaining after all expenses of the Plan have been paid; provided that any such distribution shall be made only for the benefit of former Participants and for the purposes set forth in the Plan. Upon the termination of the Plan and Trust, the Trustee shall continue in such capacity for the purpose of dissolution of the Trust with full powers as herein provided and may execute any and all instruments which may be required. The Trustee may defer any distribution upon termination pending receipt of a favorable determination letter from the Internal Revenue Service that the termination will not adversely affect the tax-exempt status of the Trust. MW374602BEC:MBW 02/22/2000 XI- 1 ARTICLE XI1 General Provisions 12.1 Title to the Trust. Title to the Trust shall be vested in and remain exclusively in the Trustee and no Employer, Union, Employee or any beneficiary shall have any right, title or interest in the Trust nor any right to contributions to be made thereto, nor any claim against the Employer on account thereof, except only as provided from time to time by this Agreement or by any group insurance policy purchased hereunder and then only to the extent of the benefits payable from such policy or out of the Trust. 12.2 Liability of Union and Employer. Neither the Union nor the Employer shall be responsible for the acts of the Trustee or for the debts, liabilities, obligations or insufficiency of the Plan or Trust. 12.3 Nonalienation of Benefits. The Trust shall not be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge by any person other than the Trustee and its duly authorized representatives, and by such Trustee or representatives, only to the extent and for the purposes as herein specifically provided. a 12.4 Prohibition of Diversion of Trust. It shall be impossible by operation of the Trust or by its natural termination, by power of revocation or amendment, by the happening of any contingency, by collateral arrangement or by any other means, for any part of the corpus or income of the Trust or any funds contributed thereto to be used for, or diverted to purposes other than the exclusive benefit of Participants, former Participants, their beneficiaries or dependents. No part of net earnings of the Trust shall inure (other than benefit payments as outlined above) to the benefit of the Employer, Union or any individual; provided, however, a contribution made by the Employer as the result of a mistake may be returned to the Employer if the Trustee so direct provided the repayment is not prohibited by applicable law and will not adversely affect the tax-exempt status of the Trust. 12.5 Incompetency. In the event it is determined that any person entitled to receive benefits is unable to care for his affairs because of mental or physical incapacity, the benefits due such person may be paid to his legal guardian or conservator, or to any relative by blood or by marriage to be used and applied for the benefit of such person. Payment to such legal representative or relative of the persons on whose account benefits are payable shall operate to discharge the e MW374602BEC:MBW 02/22/2000 XII- 1 payor from any liability to such person or to anyone representing him or his interest and the Trustee shall have no duty or obligation to see that the funds are used or applied for the benefit of such person. 12.6 Information to be Furnished by Employer. The Employer shall furnish the Trustee such information as the Trustee may require in connection with the administration of the Plan. In the event of an alleged discrepancy in Employer contributions to the Trust or in any other data required from the Employer, the Trustee shall notify the Employer in writing of such alleged discrepancy and the period of time that the discrepancy is claimed to cover. On receipt of such written notice, the Employer shall promptly furnish to the Trustee any data requested that pertains to such alleged discrepancy. 12.7 Merger. The Trustee is hereby authorized to merge the Plan and the Trust, including the monies on deposit with any insurance carrier, or any portion thereof, with another health and welfare plan (in which either this Plan or the other plan may be the surviving plan), provided that said merger and transfer of assets in connection therewith shall be contingent upon receipt of a favorable determination letter from the Internal Revenue Service with respect to the continued qualification of the surviving health and welfare plan and trust after effecting such merger. 12.8 Notice and Delivew of Documents. Any notice required to be given hereunder by mail shall be deemed to have been given as of the date of posting to the last known address of the addressee. 12.9 Gender, Number 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. Titles of articles and headings of sections and subsections are inserted for convenience of reference. They constitute no part of this Agreement and are not to be considered in the construction hereof. 12.10 Construction. This Agreement is created and accepted in the State of Wisconsin. All questions pertaining to is validity or construction not otherwise preempted by federal law shall be determined in accordance with the laws of the State of Wisconsin. If any provision contained in this Agreement or in any collective bargaining agreement pursuant to which this Agreement is created should be held unlawful, such provision shall be of no force and effect and this 0 MW374602BEC:MBW 02/22/2000 xrr-2 Agreement or any such collective bargaining agreement shall be treated as if such provision had not been contained therein. 12.11 Countemarts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. IN WITNESS WHEREOF, the undersigned, as the Trustee of the City of Muskego and Muskego Police Association Retiree Health Trust, does hereby accept the trust created hereunder and agree to perform the duties, responsibilities and obligations under this Agreement as of the day, month and year first above written. UNION TRUSTEES EMPLOYER TRUSTEES Thomas R. Schilling David L. DeAngelis Jeffrey D. Zambo Dawn R. Gunderson MW374602BEC:MBW OU2U2000 XII-3