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HomeMy WebLinkAboutReso 197-04 PartTimeEmpRetiremt RESOLUTION NO. 197 - 04 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN ********* AUTHORIZING THE CITY OF DUBLIN TO ENTER INTO AN AGREEMENT WITH THE PUBLIC AGENCY RETIREMENT SYSTEM TO PROVIDE AN ALTERNATE RETIREMENT SYSTEM FOR PART· TIME EMPLOYEES WHEREAS, it is to be determined to be in the City's best interest and its employees to provide a QualifYing Retirement System ("Deferred Compensation FICA Alternative Plan") for all its employees not currently eligible for such a Qualifying Retirement System, thereby meeting the requirements of Section 11332 of the Omnibus Budget Reconciliation Act (OBRA 90) and Section 3121(b)(7)(F) of the Intemal Revenue Code (IRC); and WHEREAS, the City is eligible to be a member of the Public Agency Retirement System (PARS) Trust, which has made such a System available to the City and its eligible employees and qualifies under California Government Code Sections 53215-53224 and 20000, OBRA 90 Section 11332, IRC Sections 3121(b)(7)(F) and 457, and meets the meaning of the term "retirement system" as given by Section 218(b)(4) of the Federal Social Security Act. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin 1. Adopts the PARS Trust, including the PARS Section 457 FICA Alternate Retirement System, effective December 25, 2004, the Effective Date for the benefit of employees on that date and hired thereafter; and 2. Council hereby appoints the City Manager, or his designee as the City's Plan Administrator (Administrator) for the PARS 457 FICA Alternative Retirement System; and 3. The Administrator is hereby authorized to implement the plan( s), execute the PARS legal documents on behalf of the City and to take whatever additional actions are necessary to maintain the City's participation in PARS and to maintain PARS compliance of any relevant regulation issued or as may be issued; therefore, authorizing the Administrator to take whatever additional actions are required to administer the City's PARS plan(s). PASSED, APPROVED AND ADOPTED this 21st day of September, 2004. AYES: Councilmembers Oravetz, Sbranti, Zika and Mayor Lockhart NOES: Councilmember McCormick ABSENT: None ATTEST: ABSTAIN: None PARS BENEFIT TRUST FBO CITY OF DUBLIN PARS ALTERNATIVE RETIREMENT SYSTEM EFFECTIVE DECEMBER 25, 2004 TRUST DOCUMENT ATTACHMENT! TABLE OF CONTENTS ARTICLE PAGE I Trust Fund 4 n Investments 6 III Trustee's Powers 9 IV Trustee's Duties 13 V Restrictions on Transfer 14 VI Resignation, Removal and Succession 15 VII Amendment 16 VIII Liabilities 17 IX Duration and Tennination 19 X Miscellaneous 20 2 PARS Benefit TrustFBO City of Dublin PARS Alternative Retirement System Effective December 25, 2004 This Trust Agreement(the "Trust Agreement") is made by and among City of Dublin (the "Agency") as the sponsor of the PARS Benefit Trust FBO City of Dublin PARS Alternative Retirement System Effective December 25, 2004 (the "Plan"), the Plan Administrator or the Plan's administrative committee (the "Plan Administrator") and Union Bank of California, N.A., a national banking association as Trustee ("Union Bank of California" or the "Trustee"). PURPOSE The Agency has established the PARS Benefit Trust FBO City of Dublin PARS Alternative Retirement System Effective December 25, 2004 for the benefit of eligible employees. The Agency has established this Trust for the exclusive purpose of providing Plan benefits to its employees ("Participants") and their beneficiaries ("Beneficiaries") and derraying reasonable expenses of the Plan and Trust. The Agency has reserved the right to amend this Trust rrom time to time. The Plan provides that, from time to time, cash and other assets may be provided or forwarded to the Trustee by the Agency to be held and administered in trust for the uses and purposes of the Plan, solely for the purpose of providing such benefits. Subject to specific conditions set forth in this Trust Agreement, the Trustee agrees that it will receive cash and other property of the Plan acceptable to the Trustee, constituting Plan contributions from the Agency or transfers for the benefit of the Plan, and shall hold and invest such cash and other property (the "Assets") for the uses and purposes and upon the tenns and conditions stated in this Trust Agreement (the "Trust"). The Agency intends that the Plan shall qualifY under Section 457(b) ofthe Internal Revenue Code of 1986, as amended (the "Code"), and that the Trust hereby created shall be treated as a trust exempt from tax under Section 501 of the Code, and shall not be subject to any claims of the Agency's creditors. 3 ARTICLE I TRUST FUND 1.1 Sienin2 Authority. The Agency's Board of Trustees, Board of Directors or other duly authorized governing body shall certifY in writing to the Trustee the names and specimen signatures of all those who are authorized to act as, and on behalf of, the Plan Administrator, and those names and specimen signatures shall be updated as necessary by such governing board or other duly authorized officer of the Agency. 1.2 Acceptance of Assets. All contributions or transfers shall be received by the Trustee in cash or in any other property acceptable to the Trustee. The Trust shall consist ofthe contributions and transfers of Assets received by the Trustee, together with the income and earnings ITom such Assets, and any increments accruing to them. The Trustee shall manage and administer the Trust without distinction between principal and income. The Trustee shall have no other duty to compute any amount to be transferred or paid to it by the Agency and it shall not be responsible for the collection of any contributions or transfers due to the Trust. 1.3 Establishment of Trust. The principal of the Trust, and any earnings thereon shall be held separate and apart :lìom other funds of Agency and shall be used exclusively for the uses and purposes of Participants and Beneficiaries as herein set forth. Participants and Beneficiaries shall have no preferred claim on, or any beneficial ownership interest in, any assets of the Trust. 1.4 On!?,oin2 Contributions to Trust. Agency, in its sole discretion, may at any time, or from time to time, make additional deposits of cash or other property acceptable to the Trustee to augment the principal to be held, administered and disposed of by Trustee as provided in this Trust Agreement. Neither the Trustee nor any Participant shall have any right to compel such additional deposits. 1.5 No Duty of Trustee to Enforce Collection. Notwithstanding anything herein to the contrary, the Trustee shall have no authority or obligation to enforce the collection of any contribution or transfer to the Trust. 1.6 Plan Administration. The Agency and not the Trustee shall be responsible for administering the Plan (including without limitation determining the rights of the Agency's employees to participate in the Plan, determining any Participant's right to benefits under such Plan), and issuing statements to Participants oftheir interest in the Trust and Plan. 1. 7 Participant Accounts. The Agency shall maintain, or cause to be maintained, a separate account for each Participant under the Plan,(the "Account") in which it shall keep a record of the share of such Participant under such Plan in the Trust. The Agency may appoint a third-party administrator or record-keeper (the "Record-keeper") to maintain such Accounts. A Participant's Account under the Plan shall represent the portion ofthe Trust allocated to provide such Participant benefits under such Plan. If the Trustee is directed by the Agency to segregate the Trust into separate Accounts for each Participant, at the time it malœs a contribution to the Trust, the Agency shall certifY to the Trustee the amount of such contribution being made in respect of each Participant under the Plan. 4 1.8 Tax Reportim?:. The Agency and not the Trustee shall be responsible for all income tax reporting and calculation and payment of any wage withholding or other tax requirements in connection with the Trust and any contributions thereto, and any income earned thereby, and payments or distributions therefrom, and Agency agrees to indemnify and defend Trustee against any liability for any such taxes, interest or penalties resulting from or relating to the Trust, provided, however, that UBOC as Trustee shall file such tax reports for the Trust as required by law and as agreed to by the parties in writing from time to time. 5 ARTICLE II INVESTMENTS 2.1 Plan Administrator Authoritv. Except as otherwise provided in this Article II, the Plan Administrator appointed by the Agency shall have all power over and responsibility for the management, disposition, and investment of the Trust Assets, and the Trustee shall comply with proper written directions of the Plan Administrator concerning those Assets. The Plan Administrator shall not issue directions in violation of the tenns of the Plan and Trust or prohibited by any applicable federal or state laws or regulations governing the establishment and operation of trusts by governmental entities for the purpose of providing retirement benefits for their employees or other individuals providing services to such entities, including, but not limited to, laws governing the actions of plan fiduciaries. Except to the extent required by applicable state or federal law or regulations, or otherwise provided in this Trust Agreement, the Trustee shall have no duty or responsibility to review, initiate action, or make recommendations regarding Trust Assets and shall follow investment directions and retain Assets until directed in writing by the Plan Administrator to dispose of them. The Trustee shall not be liable for any investment decisions of the Plan Administrator or any investment losses in the Account attributable to investment decisions of the Plan Administrator. 2.2 Trustee as Mana2:er. The Plan Administrator may also delegate all or a portion of its investment authority to the Trustee for all or a portion of the Trust Assets. Upon written acceptance of that delegation, the Trustee shall have full power and authority to invest and reinvest that portion of the Trust so designated by the Plan Administrator in investments of any kind. The Trustee shall be responsible for proper diversification of the Assets only if all the Plan Assets are subject to its management. The Plan Administrator shall have the responsibility for establishing and carrying out a funding policy and method consistent with the objectives ofthe Plan, taking into consideration the Plan's short-term and long-tenn financial needs (hereinafter referred to as the "Pennissible Investment Guidelines"). The Trustee's responsibility for investment and diversification of the Assets in the portion of the Trust for which Trustee has investment discretion shall be subject to, and is limited by, the funding policy and investment guidelines issued to it by the Plan Administrator and any Statutes. It is understood and acknowledged that the Plan Administrator, rather than the Trustee, shall be responsible for the runding policy, for overall diversification of Trust Assets (unless the Trustee has investment responsibility for all Plan Assets), for benefit allocation, distribution, and for overall compliance ofthe Trust with statutory limitations on the amount of the Trust's investment in any assets. 2.3 Insurance Contract. The Plan Administrator may direct the Trustee in writing to invest assets of the Trust in group or individual insurance contracts of all kinds authorized under the Plan, Statutes and Permissible Investment Guidelines provided such contracts are issued by an insurance company or companies qualified to do business in more than one state, and the Plan Administrator shall have the sole responsibility and shall direct the Trustee with respect to such insurance contracts. The administration ofthese insurance contracts shall be the sole responsibility of the Plan Administrator, and the Trustee shall follow the directions of the Plan Administrator with respect to the administration of any such contracts. 6 2.4 Independent Investment Mana2er. The Plan Administrator may appoint one or more investment managers to direct the Trustee in the investment of all or a specified portion of the Trust Assets. Any investment manager shall be a qualified investment advisor under the Investment Advisors Act of 1940. The Plan Administrator may also remove any investment manager. The Plan Administrator shall promptly notify the Trustee in writing of the appointment or removal of any investment manager. The Plan Administrator shall cause the investment manager to aclmowledge to the Trustee in writing that the investment manager is a fiduciary with respect to the Plan and Trust. If the foregoing conditions are met, the investment manager shall have the power to manage, acquire, retain, or dispose of any Trust Assets subject to the investment manager's management and direction. The Trustee shall not be liable for the acts or omissions of such investment manager, or be under an obligation to review the investments of, orto invest or otherwise manage any asset ofthe Trust that is subject to the management and direction of such investment manager. 2.5 Participant Directed Accounts. The Member Agency may, by written resolution and execution of the Adoption Agreement, terminate the Plan Administrator's fight to difect the investment and management of all Of any portion of the Assets of the Agency Trust and allow Participants to direct their own account balances ("Participant Difected Accounts"). Notwithstanding any other provision of this Trust Agreement, for Participant Directed Accounts, the Trustee shall be entitled to act upon proper directions of the Plan Administrator, Trust Administrator, and Participants including directions in writing, or oral instructions which Trustee in its discretion may follow without receipt of written instructions, instruction given by photostatic teletransmission using facsimile signature, or those instructions which are digitally recorded on the UBOC Voice Response Unit ("VRU") or internet website. Trustee is hereby authorized to record conversations and transmissions made in connection with the Agency Trust. Trustee's fecording Of lack of recording of any such oral, internet or digital instructions, and/or receipt or lack of receipt of facsimile transmissions, as reflected in the Trustee's records maintained in the ordinary course of business shall constitute conclusive proof of Trustee's receipt or non-receipt of such instructions. The Trustee and/or Trust Administrator shall not be liable in any manner for investment or other losses or other liability attributable to Participant's directions, or lack thereof, or exercise of control over the investments oftheir Participant Directed Accounts. Likewise, the Trustee and/or Trust Administrator shall have no duty or responsibility to review, monitor or make recommendations regarding investments made at the direction of the Participants or the Plan Administrator. In order for Agency to be relieved of investment fiduciary liability, the requirements of California law including Section 53213.5 of the California Government Code must be met. The Plan Administrator shall establish uniform and nondiscriminatory rules for the operation of the Participant Directed Accounts, including whether the Participant shall direct the Trustee or direct the Plan Administrator who directs the Trust Administrator who forwards such directions to the Trustee. Agency shall designate whether Participant Directed Accounts are to be established pursuant to the provisions of section 2.5(a) or 2.5(b), below: (a) Participant Direction in Individuallv Directed Accounts. If the Agency has so elected, Participants may have investment direction power over their own segregated account balances ("Individually Directed Account" or "IDA"). Investments may be directed by Participants into assets administratively acceptable to Trustee, as limited by guidelines 7 developed by the Plan Administrator (the "Pennissible Investment Guidelines"). Plan Administrator shall notify Participants ofthe Plan's Permissible Investment Guidelines as in effect rrom time to time. In the absence of directions from a Participant, the Plan Administrator may direct the investment of the IDA. The Trustee may refuse to comply with the directions of the Participant to invest in assets other than those listed in its Pennissible Investments Guidelines or with directions which the Trustee deems to be improper or contrary to the provisions of the Plan and Agency Trust or the Internal Revenue Code and shall have no liability for such refusal. (b) Participant Directed Account within Plan Administrator Selected Investment Options ("SelectBENEFIT Accounts"); If the Agency so elects, the Participant's Account Balance shall be segregated into a Participant Directed Account ("SelectBENEFIT Account"), over which the Participant may direct investment into one or more investment alternatives ("Investment Options"). The Plan Administrator or its appointed Investment Fiduciary shall have full responsibility for designating the Investment Options under the Plan and for selecting the underlying investment vehicle(s) for each designated Investment Option into which a Participant may direct investment of his or her SelectBENEFIT Account. To the extent allowed by law, neither the Agency, the Plan Administrator, the Trust Administrator nor the Trustee shall have any responsibility for monitoring the directions of the Participant nor shall the Agency, the Plan Administrator, the Trust Administrator or the Trustee be liable in any manner for investment or other losses or other liability for following directions of a Participant. (c) If SelectBENEFIT Accounts are established, notwithstanding any other provision of this Trust Agreement, the Agency may appoint the Trustee to provide ministerial services as recordkeeper for such accounts by so indicating in the Agency's Plan, provided that an acceptable service agreement has been executed by and between the Agency, the Plan Administrator, the Trustee and the Trust Administrator. 8 ARTICLE III TRUSTEE'S POWERS 3.1 General Trustee's Powers. Except as otherwise provided in Article II, the Trustee shall have full power and authority with respect to property held in the Trust to do all such acts, take all proceedings, and exercise all such rights and privileges, whether specifically referred to or not in this document, as could be done, taken or exercised by the absolute owner, including, without limitation, the following: (a) To invest and reinvest the Trust or any part hereof in anyone or more kind, type, class, item or parcel of property, real, personal or mixed, tangible or intangible; or in anyone or more kind, type, class, item or issue of investment or security; or in anyone or more kind, type, class or item of obligation, secured or unsecured; or in any combination of them; and to retain the property associated with such investment or reinvestment for the period of time that the Trustee deems appropriate. (b) To buy, sell, assign, transfer, acquire, loan, lease (for any purpose, including mineral leases, and for tenns within or extending beyond the life of this Trust), exchange and in any other manner to acquire, manage, deal with and dispose of all or any part of the Trust property, for cash or credit and upon any reasonable tenns and conditions. (c) To make "deposits" with anybank Of savings and loan institution, including any such facility of the Trustee or an affiliate thereof provided that the deposit bears a reasonable rate of interest; (d) To retain all or any portion of the Trust in cash temporarily awaiting investment or for the purpose of making distrihutions or othef payments, without liability for interest thereon, notwithstanding Trustee's receipt of "float" from such uninvested cash; (e) To place uninvested cash and cash awaiting distribution in one or more mutual funds and/or commingleð investment funds maintained by or made available by the Trustee, and to receive compensation from the sponsor of such fund(s) for services rendered, separate and apart from any trustee's fees hereunder. Trustee or Trustee's affiliate may also be compensated for providing investment advisory and other services to any such mutual fund or commingled investment funds. Agency acknowledges receipt of prospectuses for such funds; (f) To borrow money for the purposes of the Trust from any source other than a party in interest of the Plan, with or without giving security and to pay interest, to issue promissory notes and to secure the repayment thereof by pledging all or any part of the Trust assets; (g) To take all of the following actions as directed by a fiduciary or other person with investment discretion over the Trust assets; to vote proxies of any stocks, bonds or other securities; to give general or special proxies or powers of attorney with or without power of substitution; to exercise any conversion privileges, subscription rights or other options, and to make any payments incidental thereto; to consent to or otherwise participate in corporate reorganizations or other changes affecting corporate securities and to delegate discretionary powers and to pay any assessments or charges in connection therewith; and generally to exercise any of the powers of an owner with respect to stocks, 9 bonds, securities or other property held in the Trust; (h) To make, execute, acknowledge and deliver any and all documents of transfer and conveyance and any and all other instruments that may be necessary or appropriate to carry out the powers herein granted; (i) To pay, or cause to be paid, from the Trust any and all real or personal property taxes, income taxes or other taxes or assessments of any or all kinds levied or assessed upon or with respect to the trust or the Plan; (j) To enter into, modify, renew and tenninate annuity contracts of deposit administration of immediate participation or other group or individual type with one or more insurance companies and to pay or deposit all or any part of the Trust thereunder; to provide in any such contract for the investment of all or any part of funds so deposited with the insurance company in securities under separate accounts; to exercise and claim all rights and benefits granted to the contract holder by any such contracts; (k) To exercise all the further rights, powers, options and privileges granted, provided for, or vested in trustees generally under applicable federal or state laws, as amended fróm time to time, it being intended that, except as herein otherwise provided, the powers conferred upon the Trustee herein shall not be construed as being in limitation of any authority conferred by law, but shall be construed as in addition thereto. 3.2 Additional Powers. In addition to the other powers enumerated above, and whether or not the Plan Administrator has retained investment authority, the Trustee in any and all events is authorized and empowered: (a) To invest funds in any type of interest:'bearing account including without limitation, time certificates of deposit or interest-bearing accounts issued by Union Bank of California, N.A., or any mutual fund or short term investment fund ("Fund"), whether sponsored or advised by Union Bank of California or any affiliate thereof; Union Bank of California, N.A. or its affiliate may be compensated for providing investment advice or other services to such Fund, in addition to any Trustee's fees received pursuant to this Trust Agreement; provided, that such compensation is reasonable; (b) To cause all or any part ofthe Trust to be held in the name of the Trustee (which in such instance need not disclose its fiduciary capacity) or, as pennitted by law, in the name of any nominee, and to acquire for the Trust any investment in bearer fonn; but the books and records of the Trust shall at all times show that all such investments are a part of the Trust and the Trustee shall hold evidences of title to all such investments; (c) To serve as sole custodian with respect to the Trust assets with the sole exception of insurance policy or annuity contracts, the underlying assets of which shall be maintained by the insurance company Issuer; (d) To employ such agents and counsel as may be reasonably necessary in managing and protecting the Trust assets and to pay them reasonable compensation; to employ any broker-dealer, including any broker-dealer affiliated with the Trustee, and pay to such broker-dealer its standard 10 commissions; to settle, compromise or abandon all claims and demands in favor of or against the Trust; and to charge any premium on bonds purchased; ( e) In addition to the powers listed herein, to do all other acts necessary or desirable for the proper administration ofthe Trust, as though the absolute owner thereof and to exercise and perfonn any and all of the other powers and duties specified in this Trust Agreement; (f) To abandon, compromise, contest, arbitrate or settle claims or demands; to prosecute, compromise and defend lawsuits, but without obligation to do so, all at the risk and expense of the Trust; (g) To pennit such inspections of documents at the principal office of the Trustee as are required by law, subpoena or demand by United States agency and to disclose the Agency's name to issuers of securities in cOlUlection with shareholder communications unless directed otherwise in writing; (h) To comply with all requirements imposed by applicable state Statutes or other applicable provisions of state or federal law; (i) To seek written instructions from the Agency, Plan Administrator or other fiduciary or, to the extent Participants are pennitted to direct the investment of all or any portion of their Accounts under the Plan, from a Participant, on any matter and await written instructions from such person without incurring any liability. If at any time the Agency, the Plan Administrator, a fiduciary or Participant should fail to give directions to the Trustee, the Trustee may but is not required to act in the manner that in its discretion seems advisable under the circumstances for carrying out the purposes of this Trust. Such actions shall be conclusive on the Plan Administrator and the Agency and the Participant if written notice of the proposed action is given to the Plan Administrator five (5) days prior to the action being taken, and the Trustee receives no response; (j) As directed by the Plan Administrator: (i) To cause the benefits provided under the Plan to be paid directly to the persons entitled thereto under the Plan, and in the amounts and in the manner specified, or to disburse such sums to the Agency, who shall be responsible to distribute sums due; and make appropriate tax reports to Participants, Beneficiaries and taxing authorities, and to charge such payments against the Trust with respect to which such benefits are payable; (ii) To compensate such executive, consultant, actuarial, accounting, investment, appraisal, administrative, clerical, secretarial, custodial, depository and legal, personnel and other employees or assistants as are engaged by the Plan Administrator in cOlUlection with the administration of the Plan and to pay from the Trust the necessary expenses of such, personnel, employees and assistants, to the extent not paid by the Agency and directed by the Plan Administrator; (iii) To impose a reasonable charge to cover the cost offumishing to Participants or Beneficiaries upon their written request documents as may be legally required by applicable state or federal law or regulations; (iv) To act upon proper directions ofthe Agency, the Plan Administrator or any other fiduciary or Participant including directions in writing, or ora] instructions which Trustee in its discretion 11 may follow prior to receipt of written instructions, instruction given by photostatic teletransmission using facsimile signature, or those instructions which are digitally recorded on the Trustee's oral recording or VRU communications system. If oral or digita¡ instructions are given, to act upon those in Trustee's discretion prior to receipt of written instructions. Trustee's recording or lack of recording of any such oral or digital instructions taken in Trustee's ordinary course of business shall constitute conclusive proof of Trustee's receipt or non-receipt of the oral or digital or VRU instructions; In exercising the power and authority under this subparagraph (iv), the Trustee will perfonn telephonic verification to the Plan Administrator, or other authorized representative properly designated by the Plan Administrator or the Agency, or such other security procedure selected by the Plan Administrator prior to wire transfer of funds as the Trustee may require. The Plan Administrator, the Agency, and the Plan assume all risk with respect to delays or transfers if the Trustee is unable to reach the Plan Administrator or other authorized representative properly designated by the Plan Administrator, or in the event of delay as a result of attempts to comply with any other security procedure selected by the Plan Administrator in connection with wire transfers or otherwise; (v) To pay from the Trust the expenses reasonably incurred in the administration of the Trust as provided in the Plan, to the extent such expenses are not paid by the Agency pursuant to Section 10.2; (vi) To maintain insurance for such purposes, in such amounts and with such companies as the Plan Administrator shall elect, including insurance to cover liability or losses occurring by reason of the acts or omissions of fiduciaries (but only if such insurance pennits recourse by the insurer against a fiduciary in the case of a breach of a fiduciary obligation by such fiduciary). 12 ARTICLE IV TRUSTEE'S DUTIES 4.1 Powers Subiect to Duties. The Trustee shall exercise any ofthe foregoing powers from time to time as required by any applicable federal or state law. 4.2 Records. The Trustee shall maintain or cause to be maintained suitable records, data and infonnation relating to its functions hereunder. The Trustee shall keep accurate and detailed accounts of all investments, receipts, disbursements and other actions hereunder. Its books and records relating to the Trust shall be open to inspection and audit at all reasonable times by the Agency, the Plan Administrator or their duly authorized representatives. 4.3 Accounts. Within ninety days after the close of each Plan Year and within ninety days after the resignation or removal of the Trustee as provided in Article VI hereof, the Trustee shall render to the Agency a written account showing in reasonable summary the investments, receipts, disbursements and other transactions engaged in by the Trustee during the preceding Plan Year or accounting period with respect to the Trust. Such written accounts shall set forth the assets and liabilities of the Trust. The Agency or Plan Administrator shall have ninety days after the Trustee's mailing of each such written account within which to file with the Trustee written objections. Upon the expiration of each such period, the Trustee shall be forever released and discharged from all liability and accountability to the Agency, the Plan Administrator and Participants with respect to the propriety ofÜs acts and transactions shown in such account except with respect to any such acts or transactions as to which the Agency files written objections within such ninety-day period with the Trustee. 4.4 Reports. The Trustee shall file such descriptions and reports and shall furnish such infonnation and make such other publications, disclosures, registrations and other filings as are required of the Trustee by the Code or any other applicable law or regulation. 4.5 Follow Plan Administrator and Investment Mana2er Direction. The Trustee shall have the power and duty to comply prompt]ywith all proper directions of the Plan Administrator, the Agency, and any duly appointed investment manager. Except as to investment directions received from the Plan Administrator or investment manager, the Trustee shall not act on any directions or requests received from Participants. 13 ARTICLE V RESTRICTIONS ON TRANSFER 5.1 Persons to Receive Payment. (a) As directed by the Plan Administrator, the Trustee shall, except as otherwise provided in subsection (b), pay all amounts distributable hereunder only to the person or persons designated under the Plan or deposit to the Participant's or Beneficiary's checking or savings account and not to any other person or corporation, and only to the extent of assets held in the Trust. The Plan Administrator's instructions to the Trustee regarding whether or not to make distributions, and the amount of such distributions, shall be conclusive on all Participants and Beneficiaries. (b) In the event any controversy shall arise as to the person or persons to whom any distribution or payment is to be made by the Trustee, or as to any other matter arising in the administration of the Plan or Trust, the Trustee may, (i) retain the amount in controversy pending resolution of the controversy or the Trustee, (ii) file an action seeking declaratory relief, (iii) interplead the Trust Assets in issue, and (iv) name the Agency and/or any or all persons making conflicting demands as necessary parties. (c) The Trustee shall not be liable for the payment of any interest or income on any amount withheld or interpleaded under subsection (b). (d) The expenses incurred by the Trustee for taking any action under subsection (b) shall be charged by the Trustee to the Trust unless paid by the Agency. 5.2 AssÏ1mment and Alienation Prohibited. In accordance with Section 457 ofthe Code, Trust Assets shall not be subject to any claims of Agency or other creditors. Additionally, no benefit or interest available hereunder shall be subject in any manner to assignment or alienation, whether voluntarily or involuntarily, or to legal process except as pennitted in the Internal Revenue Code, applicable state or federal law, .or as provided in the Plan. 14 ARTICLE VI RESIGNATION, REMOVAL AND SUCCESSION 6.1 Resie-nation or Removal of Trustee. The Trustee may resign at any time upon ninety days' prior written notice to the Agency (which notice may be waived by the Agency). Agency may remove the Trustee upon ninety days' prior written notice to the Trustee (which notice may be waived by the Trustee). 6.2 Desie-nation of Successor. Upon notice of the Trustee's resignation or removal, Agency shall promptly designate a Successor Trustee who will accept transfer of the assets of the Trust. If no Successor Trustee is designated within thirty days of notice of Trustee's resignation or removal, the Plan Administrator shall designate a Successor Trustee. 6.3 Court Appointment of Successor. If neither the Agency nor the Plan Administrator designates a Successor Trustee within thirty days after the Trustee gives notice of resignation orreceives notice of removal, the Trustee may, at the expense of the Trust, apply to a court of competent jurisdiction to appoint a Successor Trustee. Until a Successor Trustee is appointed, and all Trust assets are delivered to the Successor Trustee, the Trustee shall be entitled to be compensated for its services according to its published fee schedule then in effect for acting as Trustee in accordance with the Plan and Trust. 6.4 Successor's Powers. A Successor Trustee shall have the same powers and duties as those conferred upon the original Trustee hereunder. A resigning Trustee shall transfer the Trust Assets and shall deliver the books, accounts and records of the Trust to the Successor Trustee as soon as practicable. The resigning Trustee is authorized, however, to reserve such amount from the Assets ofthe Trust as may be necessary for the payment of its fees and expenses incurred prior to its resignation, and the Trust Assets shall remain liable to reimburse the resigning Trustee for any costs, expenses or attorneys' fees or losses incurred, whether before or after resignation, due solely to Trustee's holding title to and administration of the Trust Assets. 6.5 Successor's Duties. A Successor Trustee shall have no duty to audit or otherwise inquire into the acts and transactions of its predecessor. 15 ARTICLE VII AMENDMENT 7.1 Power to Amend. The Agency shall have the right at any time, and from time to time, to modifY or amend this Trust Agreement in whole or in part, effective Upon thirty days' prior written notice tò the Trustee, provided, however, that the Trustee's duties and responsibilities shall not be amended without the Trustee's express written consent. 7.2 Limitation on Amendment. No amendment shall be made, at anytime, underwmch any part of the Trust may be diverted to purposes other than for the exclusive benefit of Participants and their Beneficiaries. 7.3 Conformity with Law. Notwithstanding anything herein to the contrary, this Trust Agreement may be amended prospectively Of retroactively at any time by the Agency if deemed necessary to confonn to the provisions and requirements of the Internal Revenue Code or regulations promulgated pursuant thereto in order to maintain the tax-exempt status hereof thereunder, or to confonn to the provisions and fequifements of any law, regulation, order or ruling affecting the character or purpose of the Plan or Trust. No such Amendment shall be effective to add or change the Trustee's powers or duties absent Trustee's written consent. 16 ARTICLE VIII LIABILITIES 8.1 Declaration ofIntent. Nothing in this Article purports to relieve a fiduciary from liability for any responsibility, obligation or duty under any applicable Statutes. However, to the full extent pennitted by law, it is the intent of this Article to relieve each fiduciary from all liability for any acts or omissions of any other fiduciary or any other person and to declare the absence of liabilities of all , persons referred to in this Article to the extent not imposed by law or by provisions of this Trust Agreement. Each of the following Sections, in declaring such limitations, is set forth without limiting the generality of this Section but in each case shall be subj ect to the provisions, limitations and policies set forth in this Section. 8.2 General Limitations of Liability. (a) No fiduciary shall be liable with respect to a breach of fiduciary dutY under any applicable Statutes if such breach was committed before he or she became a fiduciary or after he or she ceased to be a fiduciary. (b) No fiduciary shall be liable for any act or omission of any other person to whom fiduciary responsibilities (other than Trustee responsibilities) are allocated by the Plan, the Trust Agreement or by a fiduciary. 8.3 Liabiiitv of the Trustee. (a) The Trustee shall have no powers, duties or responsibilities with regard to the administration of the Plan or to detennine the rights or benefits of any person having or claiming an interest under the Plan or in the Trust or under this Trust Agreement or to examine or control any disposition ofthe Trust or part thereof which is directed by the Plan Administrator. (b) The Trustee shall have no liability for the adequacy of contributions for the purposes of the Plan or for enforcement of the payment thereof. (c) The Trustee shall have no liability for the acts or omissions of the Agency or the Plan Administrator. (d) The Trustee shall have no liability for following proper directions of a fiduciary, the Agency, the Plan Administrator or a Participant when such directions are made in accordance with this Trust Agreement. (e) During such period or periods of time, if any person other than the Trustee, including but not limited to a Participant, is directing the investment and management of Trust Assets, the Trustee shal1 have no obligation to detennine the existence of any conversion, redemption, exchange, subscription or other right relating to any securities purchased on the directions Qf such person if notice of any such right was given prior to the purchase of such securities. If such notice is given after the purchase of such securities, the Trustee shall notify the Plan Administrator, which shall transmit the 17 noticeto the directing party. The Trµstee shall have no obligation to exercise any such right unless it is informed ofthe existence of the right and is instructed to exercise such right, in writing, by a fiduciary or a Participant through the Plan Administrator within a reasonable time prior to the expiration of such ri ght. (f) During such period or periods oftime, ifthe Trustee is directed to purchase securities issued by any foreign government or agency thereof, or by any corporation domiciled outside of the United States, it shall be the responsibility of the directing party to advise the Trustee in writing with respect to any laws or regulations of any foreign countries or any United States territories or possessions which shall apply, in any manner whatsoever, to such securities, including, but not limited to, receipt of dividends or interest by the Trustee for such securities. (g) If the Plan and Trust cease to be subject to Sections 457 and 501 of the Code, the Agency shall immediately notify Trustee. Agency shall indemnify the Trustee for any federal or state income taxes, and any federal estate and state estate or inheritance taxes which the Trustee is required to pay as a result of a distribution made at the direction of the Plan Administrator, in which event the Agency shall be subrogated to the right ofthe Trustee to proceed against such Participant, Beneficiary, the executor ofthe estate of a deceased Participant or any other person for reimbursement of the amount paid and any taxes due. 8.4 Indemnification of Trustee. (a) The Trustee shall not be liable for, and the Agency agrees to indemnify and hold the Trustee harmless from and against any claims, demands, loss or liability imposed on the Trustee, including reasonable attorneys' fees and costs incurred by the Trustee, caused by and related to (i) any acts taken in accordance with any directions (or any failure to act in the absence of such directions) from the Plan Administrator, or any other party to whom Plan Administrator has given authority to direct the Trustee, which the Trustee reasonably believes to have been given by any of them; (ii) the negligence or willful misconduct of the Plan Administrator, or any other person designated to act on Plan Administrator's behalf; or (iii) the Plan Administrator's execution of its duties under this Trust Agreement, except in the event of the Trustee's gross negligence or material breach of this Agreement which directly causes the loss to the Trust. (b) The Agency further agrees to indemnify the Trustee for and against any claims, demands or liabilities imposed on the Trustee, including reasonable attorneys' fees and costs incurred by the Trustee, which exceed amounts payable or available from the Trust, arising as a result of claims asserted by a third person or persons, not otherwise described in (a), and whether such person or persons are related to the Trust, for action or failure to take action with respect to Trust Assets. 8.5 Indemnification of Afency. The Trustee agrees to indeIDllifythe Agency against, and hold the Agency hanTlless from, all liabilities and claims (including reasonable attorney's fees and costs incurred by the Agency) against the Agency as a result of any breach of fiduciary responsibility by the Trustee which proximately causes loss to the Trust, and where Trustee knowingly participates in such a breach, knowingly undertakes to conceal such breach, has actual knowledge of such breach and fails to take reasonable action to remedy such breach or through its gross negligence in performing its duties under this Agreement, proximately causes loss to the Trust. 18 ARTICLE IX DURATION AND TERMINATION 9.1 Termination. It is intended that this Trust shall be treated as being exempt from tax under Section 501(a) of the Code and that the Plan referred to herein shall qualify under Section 457(b) ofthe Code. However, notwithstanding any other provisions ofthe Trust, ifthe Internal Revenue Service is requested to issue to the Agency a favorable writtendetennination or ruling with respect to the initial qualification of the Plan and exemption of the Trust from tax and such request is denied, the Trustee shall, after receiving a written direction from the Plan Administrator, pay to each Participant that portion of the Trust applicable to said Participant's voluntary contributions, if any, and provided the Plan so states, pay to the Agency any part of the Trust attributable to Agency contributions then remaining in the Trustee's possession, less any investment losses and Trustee's fees and costs incurred to date of distribution. As a condition to such repayment, Agency shall be solely responsible for any tax reporting and withholding required, and the Agency agrees to indemnify, defend, and hold the Trustee hannless from all claims, actions, demands, or liabilities arising in connection with such repayment, and provided further that such repayment will occur within one year after the date the request for qualified status is denied. 9.2 Exclusive Benefit. This Trust may be tenninated at any time by the Agency, and upon such tennination, the Trust Assets shall be distributed by the Trustee as and when directed by the Plan Administrator in accordance with the provisions ofthis Trust Agreement and the Plan document. From the date oftennination ofthe Plan and until the final distribution ofthe Trust, the Trustee shall continue to have all the powets provided under this Trust that are necessary or desirable for the orderly liquidation and distribution of the Trust. In no instance upon any tennination, or discontinuance and subsequent distribution shall the Trust or any part of it be used for, or diverted to, purposes other than for the exclusive benefit of Participants, their Beneficiaries, and defraying the administrative expenses ofthe Plan and Trust until all Plan liabilities have been satisfied, except in the instance of the failure of the Trust initially to qualify for tax-exempt status as set forth in Section 9.1 and in the event of a return of assets mistakenly contributed as set forth in Section 9.3. 9.3 Return of Mistaken Contributions. Notwithstanding any other provision ofthis Agreement, it is specifically provided that if a contribution or any portion thereof is made by the Agency by virtue of a mistake of fact, the Trustee shall, upon written request of the Agency, return such amounts as may be permitted by law to the Agency. 9.4 Duration. This Trust shall continue in full force and effect for the maximum period oftime pennitted by law and in any event until the expiration of twenty-one years after the death of the last surviving person who was living at the time of execution hereof who at any time becomes a Participant in the Plan, unless this Trust is sooner tenninated in accordance with the Plan or the teTIllS of this Trust Agreement. 19 ARTICLE X MISCELLANEOUS 10.1 Dele2ation. By written notice to the Trustee, the Plan Administrator or the Agency may authorize the Trustee to act on matters in the ordinary course of the business ofthe Trust or on specific matters upon the signature of its delegate. 10.2 Expenses and Taxes. (a) The Agency, or at its option, the Trust, shall pay the Trustee its expenses in administering the Trust and reasonable compensation for its services as Trustee at a rate to be agreed upon by the parties to this Agreement, based upon Trustee's published fee schedule. However, the Trustee reserves the right to alter this rate of compensation at any time by providing the Agency with notice of such change at least thirty days prior to its effective date. Reasonable compensation shan include compensation for any extraordinary services or computations required, such as detennination of valuation of assets when current market values are not published and interest on funds to cover overdrafts. The Trustee shall have a lien on the Trust for compensation and for any reasonable expenses including counsel, appraisal, or accounting fees, and these may be withdrawn from the Trust as and when viewed and payable, or if Agency has elected to pay expenses of the Trust, may be withdrawn from the Trust unless paid by the Agency within thirty days after mailing of the written billing by the Trustee. (b) Reasonable counsel fees, reasonable costs, expenses, and charges of the Trustee incurred or made in the perfonnance of its duties, including but not limited to expenses relating to investment of the Trust such as broker's commissions, stamp taxes, and similar items and all taxes of any and all kinds that may be levied· or assessed under existing or future laws upon or in respect to the Trust or the income thereof shall be piÜd from the Trust Assets, unless paid by the Agency. 10.3 Third Parties. (a) No person dealing with the Trustee shall be required to follow the application of purchase money paid or money loaned to the Trustee or inquire as to whether the Trustee has complied with the requirements hereof. (b) In any judicial or administrative proceedings, only the Agency and the Trustee shall be necessary parties and no Participant or other person having or claiming any interest in the Trust shall be entitled to any notice or service of process (except as required by law). Any judgment, decision or award entered in any such proceeding or action shall be conclusive upon all interested persons. 10.4 Successor A2ency. If any successor to an Agency continues the Plan adopted by the Agency, such successor shall concurrently become a successor first party to this Trust Agreement by giving written notice of its adoption of the Plan and this Trust Agreement to the Trustee by duly authorized persons; such successor Agency shall become a signatory to this Trust Agreement upon its written notice to Trustee of the Successor's adoption hereof. 10.5 Relation to Plan. An words and phrases used herein shall have the same meanings as in the 20 Plan, and this Trust Agreement and the Plan shall be read and construed together. Whenever the Plan provides that the Trustee shall act as therein prescribed, the Trustee shall be and is hereby authorized and empowered to do so for all purposes as fully as though specifically so provided herein or so directed by the Plan Administrator. The Trustee shall furnish the Agency with copies of the Trust Agreement and all amendments thereto. 10.6 Use of Trust Funds. Except as provided in Section 9.2 and 9.3, under no circumstances shall any part of the Trust be recoverable by the Agency from the Trustee or from any Participant or fonner Participant, his or her Beneficiaries, or any other person or be used for or diverted to purposes other than for the exclusive purposes of providing benefits to Participants and their Beneficiaries, provided, however, that: (a) An Agency's excess contribution maybe returned to such Agency in accordance with the provisions of the Plan, and (b) The portion, if any, of the Trust attributable to an Agency not required for the satisfaction of all liabilities to Participants and their Beneficiaries shall, upon such Agency's tennination of the Plan, revert to such Agency. 10.7 Location of Trust Fund Assets. Except as authorized by applicable state or federal laws or regulations, the indicia of ownership of any assets of the Trust and Plan shall not be maintained outside the jurisdiction of the District Courts of the United· States. 10.8 Arbitration of Disputes. Any dispute under this Agreement shall be resolved by submission of the issue to a member of the American Arbitration Association who is chosen by the Agency and the Trustee. Ifthe Agency and the Trustee cannot agree on such a choice, each shall nominate a member of the American Arbitration Association, and the two nominees will then select an arbitrator. Expenses of the arbitration shall be paid as decided by the arbitrator. 10.9 Partial Invalidity. If any provision of this Trust Agreement is held to be invalid or unenforceable for any reason, this Agreement shall be construed and enforced as if such provisions had not beeD included and such illegality or invalidity shall not affect the remaining portions of this Trust Agreement, unless such invalidity prevents accomplishment of the objectives and pUIþoses of this Trust Agreement and the Plan. In the event of any such holding, the parties will immediately amend this Trust Agreement as necessary to remedy any such defect. 10.10 Construction. This Trust Agreement shall be constructed, administered and enforced according to the Internal Revenue Code and where state law is applicable, under applicable Statutes and laws of the State of California applied fairly and equitably in accordance with the purposes of the Plan. 21 Executed this 21st day of September, 2004 ADOPTION CITY OF DUBLIN, Sponsor of: PARS Benefit Trust FRO City of Dublin PARS Alternative Retirement System Effective December 25, 2004. «z ¡ :' "') i .C,ì By. !., .. ß 1[; ( ..c-f .~ (Signature) Richard c. Ambrose (typed or printed name) City Manager (title) UNION BANK OF CALIFORNIA, N.A. TRUSTEE Accepted this ~ day of By: (Signature) (typed or printed name) (title) ~ ATTEST: 22