Loading...
HomeMy WebLinkAboutCity Council - 2009-88 RESOLUTION NO. 2009-88 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH ADOPTING THE VOLUNTARY EMPLOYEES BENEFICIARY ASSOCIATION RESTATED MASTER TRUST BENEFITS FOR NON-REPRESENTED EMPLOYEES TRUST restated in its entirety as of the 23rd day of December, 2009 by and between the City of Huntington Beach, a forming public agency I the State of California (hereinafter referred to as the "Plan Sponsor."), and the Trust Committee of the California Government VEBA, (hereinafter referred to as the "Trustee"). WHEREAS, the Plan Sponsor adopts the California Government VEBA hereinafter referred to as the "Plan;" and The Plan constitutes the California Government Voluntary Employees Beneficiary Association("California Government VEBA"); and Under the Plan, funds will from time to time be contributed to the Trustee, which funds, as and when received by the Trustee will constitute a trust fund to be held for the benefit of the Members and retirees of the Plan Sponsor having a right to benefits, pursuant to the provisions of the Plan, and such funds will be invested by the Trustee pursuant to directions by the Plan Sponsor and/or Investment Manager as provided herein; and Other Plan Sponsors may adopt this Trust as a Master Trust, subject to the provisions of this Trust, to hold assets for the purpose of funding plans that are a part o the California Government VEBA; and The Plan Sponsor having entered into this Master Trust with the Trustee for the purpose of holding the assets under the Master Trust attributable to the Plan and other amounts contributed thereunder; and The assets and funds to be held in the Master Trust established hereby, as and when received by the Trustee, will constitute a trust fund to be held for the benefit of the members of the Plan and their beneficiaries; and The Plan Sponsor desires the Trustee to hold such assets and funds and the Trustee is willing to hold such assets and funds pursuant to the terms of this trust; and Kcdesktop 1 Resolution No.2009-99 The master trust is intended to qualify as a "Voluntary Employees Beneficiary Association"within the meaning of Section 501(c)(9) of the Internal Revenue Code; and The master trust is intended for the purpose of creating a fund to provide for the payment of benefits that qualify under Section 501(c)(9) of the Internal Revenue Code to participating Members, including their dependents, and their designated beneficiaries, NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained, the Plan Sponsor and the Trustee do hereby agree as follows: 1. The Plan Sponsor hereby adopts the California Government Voluntary Employees Beneficiary Association (VEBA) Trust (the "Master Trust") as a trust to fund the benefits provided by the Plan. All such money and property, all investments made therewith and proceeds thereof and all earnings and profits thereon, less the payments or other distributions which, at the time of reference, shall have been made by the Trustee, as authorized herein, are referred to herein as the "Fund" and shall be held by the Trustee, in trust, and dealt with in accordance with the provisions of this Trust. 2. Any other California public agency may become a Plan Sponsor and adopt the Master Trust to fund benefits provided under the California Government VEBA Plan if the Plan Sponsor adopts the Master Trust and the Plan in order to provide benefits that are funded from the Master Trust and the Trustee agrees to such adoption. The Assets of each Plan Sponsor and the investment earnings thereon shall be available only to pay benefits to employees of that Plan Sponsor and any costs or fees associated with the administration of the Plan covered under this Trust. 3. It is intended that the Master Trust shall meet the requirements of Internal Revenue Code Section 501(c)(9). All contributions hereunder and all assets and earnings of Kcdesktop 2 Resolution No.2009-88 the Master Trust are solely and irrevocably dedicated to the payment of benefits that qualify under section 501(c)(9)of the Internal Revenue Code. Effective January 1, 2008 and as referenced herein, the Trustee shall consist of a Trust Committee. The Trust Committee shall consist of one person designated by each Plan Sponsor. Such designated individual shall assume the responsibility of Trustee. Executive Trustees shall review all information and documents related to the daily activities and operation of the Trust and Plan and shall make recommendation(s) to the full body of Trustees forming the Trust Committee on such related matters. Such Executive Trustees shall consist of the ten original Plan Sponsors and five additional Trustees voted by the full body of Trustees to such position. A vote to fill the five additional positions shall occur every three years. Procedures to fill vacancies which occur in the interim periods shall be developed by the Trust Committee. 4. Trustee shall appoint a Trust Administrator and any and all successor Trust Administrators which shall have the authority to act for a Plan Sponsor in all matters relating to the establishment and maintenance of the Plan and Trust except those relating to the investment and management of the assets of the Trust and such other matters as are reserved to the Plan Sponsor or the Trustee under the provisions of this Trust. Without limiting the generality of the, foregoing, the Trust Administrator shall have the following specific powers: A. To contract for and delegate the administration of the Plan to one or more administrators, subject to approval of the Trustee. B. To determine from time to time the benefits to be provided for participants under the Plan. C. To retain professional advisors, including auditors and legal advisors to provide services to the Trust. -3- Resolution No.2009-88 D. To prepare necessary filing with the state and federal government. 5. Responsibility for the management and control of the assets of the Plans which are held under the Master Trust as a funding medium(including the power to acquire or dispose of such assets) is vested in the Plan Sponsor, and/or in such one or more investment managers described in Article 13a who are appointed by the Plan Sponsor. That portion.of the Fund for which the Plan Sponsor shall have such responsibility is hereinafter referred to as the "Plan Sponsor-Directed Fund." Any portion of the Fund over which an Investment Manager shall have such responsibility is hereinafter referred to as an "Investment Manager-Directed Fund." Allocations of assets of the Fund between or among any Plan Sponsor-Directed or Investment-Manager Directed Funds shall be determined by the Plan Sponsor. For efficiency or convenience of investment or administration, the Fund or any such Plan Sponsor-Directed or Investment Manager-Directed Fund may be divided into such one or more sub-funds as the Plan Sponsor or the Trustee may deem advisable. 6. The Trust Administrator shall maintain a separate account reflecting the equitable share in the Fund of each Plan Sponsor. For this purpose, the Trustee shall determine the value of the assets of the Fund as of the last day of each calendar quarter and as of such other dates as the Trustee may deem appropriate or on which the Plan Sponsor and the Trustee,may agree. Assets shall be valued at their market values at the close of business on the date of valuation, or, in absence of readily accessible market values, at such values as the Trustee shall determine in accordance with methods consistently followed and uniformly applied. Anything herein to the contrary notwithstanding, with respect to assets constituting part of a Directed Fund hereunder, the Trustee may rely, for all purposes of this Trust, including for the purpose of determining the value of such assets as of any quarterly or other valuation date, on any certified appraisal or other form of valuation submitted to it by the Investment Manager(s). The Trustee may also rely on Assets -4- Resolution No.2009-88 reported by an Insurer in conjunction with contracts issued by that Insurer. Any amount paid from the Master Trust which is specifically allocable to a particular Plan Sponsor shall be charged against the equitable share of such Plan Sponsor; any amount paid from the Master Trust which is allocable to all of the PIan Sponsors shall be charged against the individual Plan Sponsor assets on a pro-rata basis. 7. The Trustee shall not be required to maintain any separate records or accounts with respect to any Plan Sponsor or any participant in (or beneficiary of) any Plan Sponsor, and any such records or accounts required to be maintained pursuant to the terms of any such Plan shall be maintained by the Plan Sponsor or by the appropriate committee directly charged with such responsibility. 8. By entering into this Trust, the Trustee does not assume any responsibility or undertake any duty to enforce payment of any contribution under any collective bargaining agreement, any responsibility for.the adequacy of the Fund or the funding standards adopted by any Plan Sponsor to meet or discharge any liabilities under such agreement or standard, or any responsibility under the terms of this Trust for the management or control of any Discretionary or Directed Funds. Except as may otherwise be required by law, no duties or obligations shall be imposed upon the Trustee unless they have been specifically undertaken by the express terms of this Trust. 9. The Trustee shall receive any contributions paid to it in cash or in other property acceptable to it. All contributions so received, together with the income therefrom and any other increment thereon, shall be held by the Trustee pursuant to the terms of this Trust without distinction between principal and income. The Trustee shall not be responsible for the collection of any contributions to the Plans. -5- Resolution No.2009-88 10. The Trustee may from time to time consult with counsel, who may be counsel to the Plan Sponsor, with respect to any question arising as to the construction of this Trust or any action to be taken hereunder and the Trustee shall be fully protected, to the extent permitted by law, in acting in good faith upon the advice of counsel. 11. Subject to the provisions of Article 12 hereof, the Trustee from time to time upon receipt of written notice from the Trust Administrator,may make payments out of the Trust Fund to such persons, in such manner, in such amounts and for such purposes, including the payment of expenses of the Plan and the purchase of life insurance and/or annuity contracts, as may be specified by the Trust Administrator. Except as may otherwise be required by law, the Trustee shall be under no liability for any payment made by it pursuant to a written direction of the Trust Administrator and shall be under no duty to mare inquiries as to whether any payment directed by the Trust Administrator is made pursuant to the provisions of the Plan. 12.Notwithstanding anything to the contrary contained in this Trust or in any amendment thereto,it shall be impossible,at any time prior to the satisfaction.of all liabilities with respect to the members under the Plans or their beneficiaries,for any part of the Fund, other than such part as is required to pay taxes and expenses of administration,to be used for or diverted to purposes other than for the exclusive benefit of the members under the Plans or their beneficiaries. 13. Unless otherwise prohibited by law or otherwise specified herein, the Trustee shall have the .following powers and authority with respect to the Trust Fund: a. To invest and reinvest, as directed by the Plan Sponsor and/or the Investment Manager, the principal and income of the Fund and keep the Fund invested without distinction between principal and income,in such securities or in such property, real or personal (whether or not income producing), wherever -6- Resolution No.2009-88 situated, including, but not limited to, life insurance, contracts, stocks, common or preferred; any mutual or other funds maintained or established by the Trustee or any affiliate thereof, bonds and mortgages and other evidence of indebtedness or ownership in any common, collective or commingled trust fund maintained by the Trustee, as the same may be amended from time to time, and during any period when such funds are used, the instrument establishing such fund shall constitute a part of this Trust. In making such directed investments, the Trustee shall not be restricted to securities or other property of the character authorized or required by applicable law from time to time for trust investments. The Plan Sponsor and/or Investment Manager shall direct the Trustee in writing as to the asset allocation or percentage mix of types of investments to be used by the Trustee for the investment of the Trust Fund, and as to specific investments to be made by the Trustee of amounts in the Trust Fund. To the extent permitted by law,the Trustee shall not be liable and shall be held harmless and indemnified by the Plan Sponsor for any losses incurred in connection with the Trust Fund caused by its reliance thereon. Such losses may be either actual realized losses or losses in the nature of"lost investment opportunity." b. To settle, compromise or submit to arbitration any claims, debts or damages, due or owing to or from the Master Trust, to commence or defend suits or legal proceedings and to represent the Master Trust in all suits or legal proceedings in any court of law or before any other body or tribunal. c. To exercise any conversion privilege and/or subscription right available in connection with any securities or other property at any time held by it; to oppose or to consent to the reorganization, consolidation, merger or readjustment of the finances of any corporation, company or association, or to the sale, mortgage, pledge or lease of the property of any corporation, company or association any of the securities of which may from time to time be held by it and do any act with reference thereto, including the exercise of -7- Resolution No.2009-88 options, the making of trusts or subscriptions, and the payment of expenses, assessments or subscriptions, which may be deemed necessary or advisable in connection therewith, and to hold and retain any securities or other property which it may so require. d. To exercise, personally or by general or by limited power of attorney, any rights, including the right to vote, appurtenant to any securities or other property held by it at any time. e. To hold part or all of the Funds uninvested. f. To employ and unemploy agents, including the Trust Administrator, counsel, and auditor and to pay from the Trust Fund their reasonable expenses and compensation. g. To register any securities held by it hereunder in its own name or in the name of a nominee with or without the addition of words indicating that such securities are held in a fiduciary capacity and to hold any securities in bearer form. h. To make,execute and deliver, as Trustee,any and all deeds,leases,mortgages, conveyances, waivers, releases or other instruments in writing necessary or desirable for the accomplishment of any of the foregoing powers. i. To deposit any part of the Fund in interest bearing account deposits maintained by the Trustee. j. . Generally to do all acts, whether or not expressly authorized, which the Trustee may deem necessary or desirable for the protection of the Trust Fund. 14. The Plan Sponsor reserves the right to retain the services of one or more persons or firms for the management of(including the power to acquire and dispose of) all or any part of the Fund, provided that each of such persons or firms is registered as an investment advisor under the Investment Advisors Act of 1940, is a bank (as defined in that Act), or is an insurance company qualified to manage, acquire or dispose of trust assets under the laws of more than one state, and provided that each of such 8 Resolution No.2009-88 persons or firms has acknowledged in writing that he is a fiduciary with respect to the Plan; in such event, the investment manager or managers so retained(the "Investment Mangers)") shall have the same investment powers and duties as the Trustee, and the Trustee shall not be liable for the acts or omissions of such Investment Manager(s), nor shall it be under any obligation to invest or otherwise manage any Trust Fund assets which are subject to the management of such Investment Mauager(s). 15. The Trustee shall pay out of the Fund all personal property taxes, income taxes and other taxes of any and all kinds levied or assessed under existing or future laws against the Trust Fund. 16. The Trustee shall, within 90 days after the close of each calendar year, and within 90 days after the removal or resignation of the Trustee or the termination of the Trust or Plan,render accounts of its transactions to the Trust Administrator and Plan Sponsor. The Trust Administrator and Plan Sponsor may make exceptions to such accounts by an instrument in writing delivered to the Trustee. In the absence of the filing in writing with the Trustee.of exceptions or objections to any such account within ninety (90) days of the rendering, shall be deemed to have been approved, the Trustee shall be released, relieved and discharged with respect to all matters and things set forth in such account as though such account had been settled by the decree of a court of competent jurisdiction. The Trustee shall keep accurate and detailed accounts of all investments, receipts, disbursements and other transactions hereunder for the Fund (including any Discretionary or Directed Fund) and all accounts, books and records relating thereto shall be open to inspection and audit at all reasonable times by any persons designated by the Trustee or Trust Administrator. Except as the Retirement Security Act of 1974, as amended ("ERISA"), provides otherwise, no person other than the Plan Sponsor may bring any action against the Trustee with respect to the Trust or their actions as Trustee. The Trustee shall from time to time permit an independent public accountant selected by the Plan Administrator (except one to -9- f Resolution No.2009-88 whom the Trustee has reasonable objection) to have access during ordinary business hours to such records as may be necessary to audit the Trustee's accounts. i 17.The Trustee shall be frilly protected in relying upon notice from the Trust Administrator with respect to any instruction, direction or approval of the Trust Administrator, and protected also in relying upon a notice from the Trust Administrator as to the person or persons who are authorized to direct payments from the Trust Fund and in continuing to rely upon such notice until a subsequent notice is filed with the Trustee. The Trustee shall be fully protected in acting upon any instrument, certificates or paper believed by it to be genuine and to be signed or presented by the proper person or persons, and the Trustee shall be under no duty to make any investigation or inquiry as to any. statement contained in writing, but may accept the same as conclusive evidence of the truth and accuracy of the statements therein contained. The Trustee shall not be liable for the application of any part of the Fund if payments are made in accordance with the approved written instructions of the Trust Administrator as herein provided, nor shall the Trustee be responsible for the adequacy of the Fund to meet and discharge any and all payments and Iiabilities under the-Plan. All persons dealing with the Trustee are released from inquiry into the decision or authority of the Trustee and from seeing to the application of any moneys, securities or other property paid or delivered to the Trustee. The Trust Administrator and Plan Sponsor hereby agree to hold the Trustee harmless from and against all taxes, expenses (including counsel fees), liabilities, claims, damages, actions, suits or other charges incurred by or assessed against it as a successor Trustee, as a direct or indirect result of any act or omission of a predecessor I0- Resolution No.2009-88 Trustee or any other person charged under any trust affecting Fund assets for investment responsibilities with respect to such assets. The Plan Sponsor agrees to hold harmless and indemnify the Trustee, to the fullest extent permitted under applicable law, for any and all liabilities of any kind incurred by the Trustee in connection with the Plans and Trust (a) relating to periods of time prior to the Trustee's becoming Trustee, or (b) relating to periods of time while the Trustee is Trustee if such. liability is not due to the Trustee's negligence, willful misconduct,or breach of its fiduciary duties. 18. The Trustee may resign at any time by giving sixty (60) days written notice to the Trust Administrator. In the case of the resignation or removal of the Trustee,the Trust Administrator immediately shall appoint a successor Trustee. If for any reason the Trust Administrator cannot or does not act in the event of the resignation or removal of the Trustee, as hereinabove provided, the Trustee may apply to a court of competent jurisdiction for the appointment of a successor Trustee. Any expenses incurred by the Trustee in connection therewith shall be paid from the Fund as an expense of administration. Any successor Trustee shall have the same powers and duties as those conferred upon the Trustee named in this Trust. The removal of the Trustee and the appointment of a new Trustee shall be by written instrument delivered to the Trustee. 19.This Trust,subject to the provisions of Article 1 may be amended by the Trustee at any time or from time to time and in any manner and the provisions of any such amendment may be made applicable to the Fund as constituted at the time of the amendment as well as to the part of the Fund subsequently acquired;provided, however,that no such amendment shall increase the duties of the Trustee without its consent. Any amendment shall be by a written instrument adopted by the Trustee. -11- Resolution No.2009-88 20. This Trust and the trust created hereby may be terminated at any time by the Trustee, and upon such termination, the Fund shall be paid out by the Trustee as and when directed by the Trust Administrator in accordance with the provisions of Article 12 hereof. 21. The Trust Administrator shall provide the Trustee with copies of all documents constituting a Plan at the time the Trust is executed by a Plan Sponsor, as provided in Article 2, and all other documents amending or supplementing a participating Plan promptly upon their adoption. The Trustee shall be entitled to rely upon the Trust Administrator's attention to this obligation and shall be under no duty to inquire of the Trust Administrator as to the existence of any documents not provided by the Trust Administrator hereunder. The Trustee is bound and acknowledges that it is a fiduciary with respect to the Master Trust and the participating Plans and by the fiduciary responsibility provisions of ERISA as applicable to governmental plans. The provisions of ERISA are expressly made applicable to the provisions of this Master Trust in order to ensure that the Master Trust meets the control requirements for a VEBA under the provisions of 501(c)(9)of the Internal Revenue Code. 22. To the extent consistent with the provisions of ERISA, this Agreement and the trust created hereby shall be construed, regulated and administered under the laws of the State of California, and the Trustee shall be liable to account only in the courts of the State. All contributions to the Trustee shall be deemed to take place in the State of California. Unless the provisions of ERISA provide otherwise,the Trustee may at any time initiate an action or proceeding for the settlement of its accounts or for instructions, and the only necessary party defendant to such action or proceeding shall be the Employer except that the Trustee,may, if it so elects, bring in as parties defendant any person or persons. -12- Resolution No.2009-88 PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the 2 1 s t day of December , 20 09. Az REVI APPROVED: INIT ND APP EtP I Zo� City m rator cc r of Human Resources PROVED AS TO FORM: L4y Attorne /8 •10•d5 Kcdesktop 13 Res. No. 2009-88 STATE OF CALIFORNIA COUNTY OF ORANGE ) ss: CITY OF HUNTINGTON BEACH ) I, JOAN L. FLYNN the duly elected, qualified City Clerk of the City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby certify that the whole number of members of the City Council of the City of Huntington Beach is seven; that the foregoing resolution was passed and adopted by the affirmative vote of at least a majority of all the members of said City Council at an regular meeting thereof held on December 21, 2009 by the following vote: AYES: Carchio, Coerper, Hardy, Green, Bohr, Dwyer, Hansen NOES: None ABSENT: None ABSTAIN: None F Clerk and ex-offic�, lerk of the City Council of the City of Huntington Beach, California