The intent of this Agreement and Declaration of Trust is to provide for the establishment of a Fremont Police Association Benefit Trust Fund, to be maintained in accordance with applicable law and the terms and conditions set forth hereinafter.
NOW THEREFORE, in consideration of the mutual undertakings of the parties hereto, it is hereby agreed as follows:
Article 1 – Name and Purpose
Section 1.1 – Name
The official name of the Trust established pursuant to this Trust Agreement is the Fremont Police Association (“FPA”) Benefit Trust Fund (“Trust”).
Section 1.2 – Purpose
The purpose of this Trust is to facilitate the provision of life, health, disability, accident insurance or any other benefit (whether fully insured, self-funded or unfunded) permitted by section 501(c)(9) of the Internal Revenue Code and the regulations issued thereunder, for the qualifying members of FPA, qualifying retirees, and other bargaining unit members; to provide the means for financing the costs and expenses of administering such benefits; to hold plan assets for the exclusive purpose of providing benefits to participants and beneficiaries; and to defray the reasonable expenses of administering such plans of benefits.
Section 1.3 – Effective Date
The effective date of this Trust Agreement shall be January 1, 1998 and shall continue indefinitely until such time as it may be terminated in accordance with the provisions of section 10.4 herein.
Article 2 – Use of Terms
Section 2.1 – Definitions and Interpretations
Where the following words and phrases appear in this Trust Agreement they shall have the meaning set forth in this Article, unless the context clearly indicates otherwise. Other words and phrases with special meaning are defined where they first appear unless their meaning is apparent from the context.
- “Beneficiary” means a person designated by a Participant under a Plan administered pursuant to this Trust, who is or may become entitled to a benefit.
- “Benefit” means those services to which the Participants are or may become entitled to under a Plan, or pursuant to an insured benefit provided thereunder.
- “Benefit Plan” or “plan” means the separate written documents, together with amendments, adopted by the Trustees pursuant to this Agreement.
- “Board of Trustees” of “Trustees” means the Board of Trustees created by this Agreement. The term “Trustees of the Benefit Trust” shall have the same meaning.
- “Business Administrator” means the Business Administrator of the Trust, who is not a fiduciary when performing duties solely as Business Administrator of the Trust.
- “Code” of “IRC” means the Internal Revenue Code.
- “Contribution” means the payments required from Participants, paid through dues deduction pursuant to the current MOU between the City of Fremont and FPA, and any amendments and modifications thereto, or which are paid directly to the Fund by Participants or the City of Fremont.
“Fiduciary” means the Trustees and all persons appointed by them or engaged by them who:
- Exercise any discretionary authority or discretionary control respecting the management or disposition of the Trust funds;
- Render any investment advice for a fee or other compensation; or
- Exercise any discretionary authority or responsibility for Plan or Trust administration.
- “FPA” or “the association” means the Fremont Police Association.
- “Fund” means the monies and assets of the Trust created hereby.
- “Fund Custodian” means any bank or other institution which may be designated by the Board of Trustees as the custodian of Trust assets in accordance with Section 7.2M hereof.
- “Participant” means a member of FPA on whose behalf payroll deductions are made as contributions to this Trust which may be pursuant to a participation agreement and at a rate set by the Trustees, or on whose behalf contributions to this Trust are made in any other method as the Trustees may prescribe which may be pursuant to a participation agreement and at a contribution rate set by the Trustees, and who may become eligible for benefits or services hereunder.
- “Plans” means the insurance benefit programs as presently in effect or as may hereafter be amended, deleted and added by the Trust.
- “Trust Agreement” means this Agreement and any changes, amendments and modifications hereof and hereto.
- “Trust Fund” of “Fund” or “Benefit Trust Fund” means the Trust Fund established by this Agreement and shall include the entire Trust estate which is created and established pursuant hereto.
Section 2.2 – Titles and Headings Not to Control
The titles to Articles and headings of paragraphs in this Agreement are placed herein for the convenience of reference only and, in case of any conflict, the text of this Agreement rather than such titles or headings shall control.
Section 2.3 – Waiver of Notice
Any notice required under this Agreement or the Plan may be waived by the person entitled thereto as long as cuh waiver is in accordance with any applicable federal or state law or applicable regulation.
Section 2.4 – Standards of Interpretation
The provisions of this Trust Agreement and any plan established hereunder or administered pursuant hereto are designed and intended to comply and be consistent with the laws of the United States and the State of California. The Trustees are vested with the exclusive power and authority, in their sole and absolute discretion, to interpret and construe this Trust Agreement and the Plan documents and all matters arising thereunder, including the right to interpret the Plan or Trust terms and/or remedy possible ambiguities, inequities, and inconsistencies, as well as determine factual matters or omissions. All interpretations and decisions of the Trustees with respect to any matter hereunder or in any Plan or Plans administered hereunder, shall be finala, conclusive and binding on all parties affected thereby.
If the Trustees determine or are advised that regulations, rulings, or court actions may determine issues of disputes before them, they may defer action for a reasonable period of time in making a determination hereunder until such time as they can ascertain the proper determination of that issue or dispute.
Article 3 – The Trust Fund
Section 3.1 – Tracking of Contributions
All contributions shall be irrevocable and may be used only for the benefit of the Participants; provided, however, notwithstanding anything herein to the contrary, a contribution which was made under mistake of fact, or conditioned upon initial qualification of a plan under the Code, if a plan does not so qualify, shall be returned to the contributor within one (1) year after the payment of the contribution, or the date of denial of the qualification of a Plan, whichever is applicable. The provisions of this paragraph whall be applicable only to the extent consistent with the Code.
Section 3.2 – Trust Liability
Except as herein expressly provided, neither member contributions nor the Trust Fund shall in any manner be liable for, or, subject to, the debts, contracts or liabilities of FPA or any member thereof, or any Trustee (except in his/her capacity as Trustee) or any insurance company which provides benefits to the Participants hereunder.
Section 3.3 – Assignment
No member shall have the right to sell, transfer, anticipate, assign, hypothecate, or otherwise dispose of his or her benefits obtained hereunder, rights or interest under any Plans administered hereunder, and the Board of Trustees shall not recognize or be required to recognize any such sale, transfer, anticipation, assignment, hypothecation or other disposition; and such Trust account, right of interest shall not be subject in any manner to voluntary transfer, or to transfer by operation of law or otherwise, and shall be exempt from the claims of creditors or other claimants and from all orders, decrees, garnishments, executions or other legal or equitable process or proceeding to the fullest extent permissible by law.
Section 3.4 – Recordkeeping and Audits
The Trustees shall maintain such records, checks, check stubs or such other records relating to the contributions sufficient to permit the Trust to comply with all applicable laws. These records shall be maintained for a period of not less than seven (7) years following the end of the calendar year in which the contribution commences.
Once each fiscal year, the Trustees will arrange for an authorized certified public accountant to enter upon the premises of the Trust Fund at a mutually agreeable time during regular business hours to conduct an annual audit of the Plan or Plans administered hereunder.
Section 3.5 – Term and Duration of the Trust and Trust Agreement
It is the intent of the Association and the Trustees to continue the Trust in existence on a continual basis, contemporaneously with the term of this Trust Agreement. However, the Trust may be terminated in accordance with the provisions of Section 10.4 hereof, when the Trustees, based on their judgement as fiduciaries, determine that the Trust should so terminate.
Section 3.6 – Insurance Contracts and Self-Funded Benefits
As of the date of the signing of this document, the Fund is offering the following fully insured benefits or participation in the following self-funded benefit programs:
|Type of Benefit||Insurer|
|Long-Term Disability (days 31-60 of elimination period)||Self-Funded by Trust|
|Long-Term Disability Insurance (days 60 and after)||California Law Enforcement Association|
|Term Life and Accidental Death & Dismemberment Insurance||Fortis Benefits Insurance Company|
|Dental Insurance||Delta Dental Plan of California|
The Trustees shall have the authority to amend such benefits programs, including amendments that expand, restrict or terminate all or part of the rules relating to eligibility or the types of benefits provided, as they may determine. Amendments may be made on a prospective or retroactive basis.
Section 3.7 – Design of the Benefit Plan
The Trustees shall have the authority to determine the details of any benefit plan, administered pursuant to the Trust Document, including the determination of the rules under which Participants and Beneficiaries shall be eligible for benefits and the nature and amount of such benefits.
Section 3.8 – Protective Clause and Disclaimer
Neither the Association, nor the Trustees, shall be responsible for the validity of any contract of insurance issued in connection with any plan, program or this Trust, or for the failure on the part of the insurer to make payments provided by such contract, or for the actions any person which may delay payment under such contract, or render a contract null and void or unenforceable in whole or in part.
Article 4 – Eligibility to Participate
Section 4.1 – Eligibility
To be eligible for the benefits granted pursuant to this Trust, a Participant must be an active police officer or eligible retired member (if the particular benefits are provided for retirees and pursuant to the program of benefits provided by this Trust) on whose behalf contribution are made by the City of Fremont pursuant to the applicable MOU between the City of Fremont and the Fremont Police Association, or by self pay for the retiree. Eligibility for Retirees will be determined by the Trustees for each benefit provided, on an actuarially determined basis. Eligibility rules or benefits may be terminated, modified or added pursuant to the terms of the Trust Agreement.
Article 5 – The Trustees
Section 5.1 – Number and Selection of Trustees
The Trust shall be administered by five (5) Trustees.
The five (5) Trustees shall be comprised of the Executive Committed of the FPA Board of Trustees, pursuant to Article III, Section 14 of the FPA By-Laws. The FPA Executive Committee is comprised of the duly elected President, First and Second Vice-Presidents, Secretary and Treasurer of the Board of Directors.
Should any member of the Executive Committee be unable to or unwilling to serve as a Trustee, then the President shall appoint from the general membership a Trustee to serve in the place and stead of the Executive Committee member who is unable or unwilling to serve. Such replacement Trustee shall serve at the pleasure of the President.
- Every Trustee appointed to the Baord of Trustees must, at the time of the appointment thereto, be an active member of the FPA.
Section 5.2 – Term of Trustees
Trustees shall serve two (2) year terms, commencing in June of the year of his or her election and terminating at the end of May two (2) years later, upon election of a succeeding Trustee. Successive terms are permissible.
Section 5.3 – Removal of Trustees
The Trustees may be removed pursuant to the procedures described in the FPA By-Laws for the removal of the Board of Directors and Executive Board.
Section 5.4 – Resignation of Trustees
A Trustee may resign upon giving a minimum of thirty (30) days written notice to the remaining Trustees, in which notice there shall be stated a date when such resignation shall take effect. Such resignation shall take effect on the date specified in the notice or on another alternate date, unless a successor Trustee shall have been appointed at an earlier, in which even such resignation shall take effect immediately upon the appointment of said successor Trustee. The remaining Trustees shall establish the effective date of a Trustee resignation of the resigning Trustee does not state a date when the resignation takes place.
Section 5.5 – Rights of Successor Trustees
Any successor Trustee shall, immediately upon his/her appointment as a successor Trustee and his/her acceptance of the Trusteeship in writing, become vested with all property, rights powers and duties of a Trustee hereunder with like effect as if originally named as a Trustee, and all the Trustees then in office shall be immediately notified.
Section 5.6 – Duty of Retiring Trustee
Any Trustee who resigns or who is removed shall forthwith turn over to the remaining Trustees at the principal office of the Trust any and all records, books, documents, monies and other property in his/her possession or under his/her control which belong to the Trust, or which were received in his/her capacity as Trustee, if so requested by the Board of Trustees.
Section 5.7 – Power of Board of Trustees in Event of Vacancy
If three (3) or more Trustees are serving on the Board of Trustees, no existing vacancies in the office of the Trustees shall impair the power of the remaining Trustees to administer the affairs of the Trust.
Section 5.8 – Agents for Service of Process
Each Trustee shall be considered an agent of the Trust for the purpose of accepting service of legal process.
Article 6 – Officers, Meetings, Voting, Resolution of Deadlocks and Disputes
Section 6.1 – Chairperson and Vice Chairperson
- The President of FPA shall serve as Chairperson of the Board of Trustees. The Vice Chairperson shall be selected by the Chairperson.
- If the Chairperson is absent from a Trust meeting, the Vice Chairperson shall chair such meeting. If both the Chairperson and the VIce Chairperson are absent from a Trust meeting, the Trustees shall select one of themselves to chair such meeting.
- The Trustees may select such other officers with such powers as they deem advisable. The term for each such office shall be one (1) year.
Section 6.2 – Time and Place of Meetings
The Board of Trustees shall determine the time and place of its regular meetings but shall meet at least quarterly. Notice of each regular meeting shall be given to all Trustees at least ten (10) days prior to the date of such meeting. Any meeting at which all Trustees are present, or concerning which all Trustees waive notice and writing, shall not be invalid for want of notice.
Section 6.3 – Special Meetings
The Chairperson or any two (2) Trustees may call a special meeting of the Trustees by giving personal or telephonic notice to all other Trustees of the time and place of such meeting. Any meetings at which all Trustees are present or concerning which all Trustees waive notice in writing, shall not be invalid for want or notice.
Section 6.4 – Action Without a Formal Meeting
he Trustees may take action without a formal meeting by a means of (a) a conference telephone call in which all Trustees are notified and in which a quorum of the Trustees participate; (b) the presentation of a written motion or resolution sent to all Trustees and the subsequent obtaining of a vote or abstention from each Trustee on the motion or resolution in telephone calls placed to each Trustee; or (c) the presentation of a written motion or resolution sent to all Trustees and the subsequent obtaining of a vote or abstention from each Trustee on the motion or resolution in letters sent by each Trustee to the Chairperson.
Section 6.5 – Ratification by Trustee
Any Trustee may ratify any action taken by other Trustees at any meeting, and such ratification shall have the same effect as the Trustees’s vote would have had if it had been cast by him/her in person at the meeting. Any action taken by any number of Trustees at any meeting shall be valid if ratified by all absent Trustees, or, in the case of a meeting which would have been invalid for want of notice, if ratified by all absent Trustees who were not properly notified. The Trustees may take any action without a formal meeting, provided that all of the Trustees sign a written consent to such action.
Section 6.6 – Quorum and Action of Board of Trustees
The exercise of any power or right reserved to the Trustees or conferred upon them hereunder shall be only by a majority of the Trustees at a meeting of the Trustees duly called at which not less than three (3) Trustees are present, or by the signed concurrence of all Trustees in the event there is no such meeting.
Section 6.7 – Prohibition of Proxies
To encourage full attendance at meetings of the Trustees and due consideration of the matters voted upon, there shall be no proxies. A Trustee must be present in order to vote.
Section 6.8 – Rules of Procedure
The Board of Trustees is empowered to adopt such rules of procedure for the conduct of its meetings and determine the time and place of meetings provided such rules and determinations are not in conflict with this Trust Agreement. If such rules and regulations are not adopted or if they do not address particular issues which may arise, Scott Foresman, ROBERTS RULES OF ORDER NEWLY REVISED shall control such procedural matters.
Section 6.9 – Motions
Any Trustees, including the Chairperson or Vice Chairperson, may offer or second any motion or resolution presented for the Trustees’ consideration.
Section 6.10 – Deadlock of Trustees
In the event that the Trustees deadlock on the administration of the Fund or on any matter arising under this Agreement or the Plan, the Trustees shall agree upon an impartial umpire to decide such dispute, or upon a mutually satisfactory method for selecting said umpire. In case an impartial umpire who is willing to act is not selected within thirty (30) days of a written request for arbitration, any Trustee may petition the American Arbitration Association to appoint such an umpire. The impartial umpire shall have no power to alter, amend, add to, or take away from any of the terms of this Trust Agreement. The decision of the impartial umpire shall be final and binding upon the parties and the beneficiaries of the Plan and this Agreement.
Any costs and attorneys’ fees in connection with the dispute shall be paid out of the Trust Fund, including any reasonable compensation to such umpire, unless otherwise agreed to by the parties. Differences arising as to the interpretation or application of the provisions of this Trust Agreement or of any Plan, or relating to benefits provided for thereunder, shall be resolved by the impartial umpire.
Section 6.11 – Compensation and Expenses
No Trustee shall receive any compensation from the Trust Fund for services as a Trustee.
Each Trustee shall be reimbursed out of the Trust Fund for all expenses properly and actually incurred by him or her in the administration of the Trust Fund. The Trustees shall establish a policy and conditions for the reimbursement of expenses.
Section 6.12 – Benefits to the Trustees Not Prohibited
Nothing in this Trust Agreement shall prohibit a Trustee from receiving any benefits under the terms of the Benefits Plan if he or she is otherwise eligible for the same as a Participant. However, a Trustee shall not take part in any decision which involves his or her interest as a Participant.
Section 6.13 – Appointment of Administrator
The Board of Trustees may employ or contract for an administrator and/or other clerical or professional assistance to implement the functions and duties of the Board of Trustees. The administrator’s salary shall be paid from the Trust’s funds. The administrator shall also be reimbursed for reasonable expenses incurred in the course of his or her duties as administrator. The initial administrator for the Trust shall be the Board of Trustees.
Section 6.14 – Administrative Responsibilities
The Administrator shall conduct the routine business of the Board at the direction of said Trustees. The Administrator’s duties and responsibilities shall be determined by the Board of Trustees and shall be set forth in an agreement or be reflected in the Trust meeting minutes.
Section 6.15 – Administrative Agent or Finance Manager
The Trustees shall have the authority to contract, at the expense of the Trust Fund, with one (1) or more entities and/or with one (1) or more finance managers to assist the Trustees in the day-to-day administration of the Trust Fund and the Benefits Plan. Such assistance may include the receipt and recording of contributions, the preparation and issuance of disbursements, the processing of benefit applications, the maintenance of financial records, and the handling of routine communications.
The Trustees shall periodically review the performance of such administrative agents and finance managers.
Article 7 – Powers and Duties of Trustees
Section 7.1 – General Rules/Named Fiduciaries
The Board of Trustees shall be the “named fiduciaries” of the Trust Fund. Other persons shall be fiduciaries only to the extent they have discretionary authority or discretionary control respecting management of the Trust or Plan; or exercise any authority or control respecting management or disposition of Trust assets; or have any discretionary authority or discretionary responsibility in the administration of the Plan; or render investment advice for a fee or other compensation, direct or indirect, or have any authority or responsibility to do so. Any person or group of persons may serve in more than one fiduciary capacity with respect to the Plan and Trust.
It is not intended that any attorney, accountant, broker, actuary, office personnel or consultant (other than an Investment Manager) shall be a “fiduciary” simply as a result of performing service for the Trust pursuant to agreement with the Board. Therefore, such persons shall not perform acts of the type set forth above which would make them fiduciaries except as specifically authorized by the Board.
Section 7.2 – Powers Granted to Trustees
The Trustees shall have the exclusive power and final authority in their sole, absolute and uncontrolled discretion to control and manage the operation and administration of the Plan, and shall have all powers necessary to accomplish these purposes. The Trustees may from time to time delegate a portion of that discretionary authority. The Business Administrator of any Plan established hereunder shall report directly to the Board of Trustees.
The powers granted to the Trustees herein are in addition to, and not in limitation of, all powers granted to the Trustees by common law, statute, and other provisions of the Trust Agreement; are exercisable from time to time, and are not powers to be considered exhausted by their exercise on one (1) or more occasions; and are exercisable in the sole discretion of the Trustees. Unless specifically limited by law, the Trustees shall have the power, responsibility and authority to administer the Trust and to do all acts they consider to be in the best interest of the Trust or of any Participant, and shall include but not be limited to the right to exercise any or all of the following powers:
- Establish Plans. To establish such plans and programs of welfare benefits to be provided by self-funding through the Trust, through unfunded plans, or by direct contract with one (1) or more insurance and/or health providers or brokers, as well as to set the eligibility requirements and any other matters applicable to such plans and programs.
- Determine Eligibility. Determine all questions relating to the eligibility of employees to participate under such plan, except that the insurers of the programs of the Trust make determinations as to the maximum age of participants eligible for their particular program, and other eligibility requirements as they see fit, in which case the Trustees shall have no authority to make such determinations.
- Interpret Plan. Interpret the provisions of the Plan including the publication of rules for the regulation of the Plan as in its sole, absolute and uncontrolled discretion are deemed necessary or advisable, and which are not inconsistent with the express terms hereof.
- Make Investments. To invest and reinvest (or encumber) funds of the Trust in any investments as set forth herein, and as permitted by law.
- Interpret Trust. Specifically define the provisions of the Trust Agreement and any Plan adopted thereunder, as more fully set forth herein.
Establish Funding Policy. To meet periodically with their finance manager, if any, their independent qualified public accountant, and such other Trust Fund advisors as may be appropriate, for the purpose of anticipating the short run and long run financial needs of the Trust Fund. Thereupon, the Trustees shall adopt an appropriate funding policy and method for the Trust Fund.
The funding policy and method shall be considered by the Trustees in the management of trust fund investments. In the event the management of trust fund investments has been delegated to an investment manager, the funding policy and method shall be considered by such manager.
- Prosecution of Legal Actions or Claims. To originate and maintain any legal actions or claims involving potential legal actions, at the expense of the Trust Fund, as they may deem necessary in the administration of the Trust Fund and any benefit plans. All such actions and claims shall be prosecuted in the name of the Trust Fund or in the name of an assignee.
Defense of Legal Actions or Claims. To defend all legal actions, claims involving potential legal actions, and investigatory proceedings initiated against the Trust Fund or against one or more of the Trustees, former Trustees, administrative agents or finance managers, or against one or more employees of the Trust Fund (if any) that relate to the administration of the Trust Fund or the benefit plan. Except as stated below, the defense of such actions, claims and proceedings shall be at the expense of the Trust Fund.
If the final court decree establishes personal liability on the part of specified Trustees, administrative agents, finance managers or employees (if any) for breach of their fiduciary responsibilities, and orders that the specified persons are to bear the expenses of their own defense, their attorneys fees shall not be chargeable to the Trust Fund. If attorney fees and costs have already been charged to the Trust Fund, the specified persons shall be obligated to repay the Trust Fund for their pro-rata share of such fees and costs.
- Settle Claims. To accept, compromise, arbitrate or otherwise settle any obligation, liability or claim involving this Trust, including any claim asserted for taxes under present or future law. The Trustees may also enforce or contest any such obligation, liability or claim by appropriate legal proceedings, but they shall not be obliged to do so unless, in their judgment, it is in the best interests of the Trust to do so.
- Deposits in Financial Institutions. To receive contributions from any source and, at the discretion of the Trustees, to deposit such monies in a bank, savings and loan or other financial institution, subject to the supervision of appropriate state or federal authorities
Administrative Functions. To provide for the administration of the Trust and Plan or Plans by delegating administrative functions to an insurance broker with his or her own office and staff, or alternatively, the Trustees may engage the services of an administrator and delegate any of the functions the Trustees may deem proper including but not limited to:
- Establish and maintain office;
- Establish written procedures concerning collection of assets or income and payment of debts or expenses in connection with Trust administration;
- Make and change from time to time, and enforce, the rules and regulations for the administration of the Plan and the benefits provided under it, including the rights of Participants and Beneficiaries and similar or related questions.
The Administrator shall be a “fiduciary” and may be an employee of another Trust or entity, an employee of this Trust, an association representative or an independent contractor. The duties of the Administrator, other than an uncompensated association representative, shall be specified in a written agreement with the Trust, but the lack of such writing shall not diminish their status as a fiduciary.
Employ Persons/Consultants. To employ one (1) or more persons to assist the Trustees in administering the Plan, to provide collection and payment services, to render investment or administrative advice, or to perform such other fiduciary functions as the Trustees consider advisable. Investment of the Trust funds may be by segregated funds under different investment’ management.
Any agreement with such persons or entities may be for any reasonable period. At the Trustees’ discretion, a letter agreement between the consultant/agent or the party may be satisfactory.
The Board of Trustees shall have the exclusive authority to hire and fire all employees of the Benefit Trust or any other trust or plan adopted hereafter. All personnel matters shall be subject to the rules and regulations adopted under the Trust’s Operating Procedures. The Board of Trustees may delegate the authority to hire and fire Trust personnel, if a majority of the Board of Trustees so elects.
- Delegate Investment Management. To delegate to a state or national banking or savings and loan association, an investment firm or association, an investment consultant, an investment manager, or to an insurance company, as fiduciary, the duty of managing the funds and assets of the Trust, including the duties of collection and payment, investments and reinvestments, in such manner and to the extent considered desirable by the Trustees and permitted under the terms of the Trust Agreement and under applicable law.
- Loan Agreements. To enter into loan, subordination and/or guarantee agreements, which, in the business judgment of the Trustees, are desirable to protect or enhance any investment in which the Trust holds an interest.
- Errors and Omissions Insurance. To purchase on behalf of the Trust, and or Plan(s) errors and omissions policies and/or fiduciary liability policies to protect the funds of the Trust. To the extent permitted by law, individual fiduciaries may purchase Rider Coverage on the individual behalf of each to protect against individual recourse, which may be paid for by the Association.
- Maintain an Office. To establish and maintain an office for the Trust which shall be staffed in such manner as the Trustees deem appropriate. The Trust Administrative Office, personnel and costs may be shared with other Trusts and/or plans to reduce the expenses of the Trust, achieve greater efficiency and/or provide better service to the Participants.
- Reciprocity Agreements. To enter into reciprocity agreements with the Trustees of other qualified trusts upon terms mutually agreeable, actuarially sound and lawful.
- Reserves. To establish and to accumulate such reserve funds as they deem appropriate in accordance with federal law and any lawful regulations issued thereunder and to determine how those reserve funds shall be utilized, including using such reserves to provide additional benefits.
- Policies and Procedures. To adopt uniform procedures, rules and regulations for the administration of the Trust and any adopted Plan which are consistent with the terms and intent of this Agreement and the relevant Plan.
- Check Writing and Documents. The authority for signing negotiable instruments (including checks) shall be given to the Trustee who also serves as Treasurer of the Executive Committee of the FPA, the Chairperson, and the Vice Chairperson. All negotiable instruments shall require the signature of any two (2) of the foregoing. Any two (2) Trustees may sign certificates, contracts, government reports, and other legal documents on behalf of the Trust, and the Trustees may, in their sole discretion, delegate such signing authority to a depository or custodian bank, or a finance manager in accordance with Section 7.2M, supra. All persons doing business with the Trust may rely on such signatures. The Board of Trustees may delegate this function in writing to a Participant as long as one Trustee remains a signatory and such Participant is covered by the Trust’s Fidelity Bond and Fiduciary Liability Insurance.
- Set Salaries. To establish and periodically review the wages and salaries of employees of the Trust, if any.
- Pay Taxes. To pay, at the expense of the Trust Fund, all real and personal taxes, or other taxes or assessments of any kind, that may be lawfully levied or assessed against the Trust Fund.
Participate in Non-Profit Educational Organizations. To participate in non-profit foundations, corporations, councils, committees or other organizations which sponsor educational programs or provide educational materials pertaining to the administration of trust funds of this nature and of employee benefit plans. If the Trustees act to participate in any such non-profit organization, the membership or participation fees of the organization shall be chargeable to the Trust Fund.
The Trustees shall also have the authority to purchase educational materials and to provide for the attendance of the Trustees, or of such of their employees (if any) as they may designate, at educational conferences and meetings. The costs of such materials and attendance shall be chargeable to the Trust Fund.
Section 7.3 – Duties of Fiduciaries
In addition to any fiduciary obligations which may be provided for elsewhere in this Trust Agreement or which are established by law, all fiduciaries shall have the responsibility to perform as follows:
- Manage Trust for Participants. To manage the Trust in accordance with the Trust Agreement, and solely in the interests of the Participants and Beneficiaries, and for the exclusive purpose of providing benefits to Participants and to their Beneficiaries.
- Act Prudently. To discharge their duties with the care, prudence and diligence that a prudent person, familiar with such matters and acting in a like capacity and under similar circumstances, would use in the conduct of a similar business. No decision shall be made by any Trustee unless that Trustee has reviewed all available information.
- Diversify Investment. To diversify the investments of the Trust in order to minimize the risk of large losses, unless, under the circumstances, it is clearly prudent not to do so.
- Maintain Adequate Records. To see that records are maintained which will provide in sufficient detail the basic information and data necessary to verify, explain, clarify, or check for accuracy any reports required by local, state or federal agencies, for periods of not less than seven (7) years after the filing date of such reports, or seven (7) years after the date on which such reports would have been filed but for an exemption under applicable law.
- File Government Reports. To file with local, state and federal agencies all reports required by law.
- Obtain Fidelity Bond. To procure a fidelity bond covering each Trustee or other person who receives, handles, disburses, or otherwise exercises custody or control of any of the funds or other property of the Trust. All bonds shall be in a form or the type and in the amount approved by the Secretary of Labor.
- Employ Legal Counsel. The Trustees shall seek legal advice whenever necessary to fulfill their fiduciary duty.
- Conduct an Audit. Each year the Trustees shall cause to have performed an audit of the books and records of the Trust by a Certified Public Accountant pursuant to generally accepted auditing procedures for a fund of this size and purpose.
Section 7.4 – Use of Fund for Expenses
The Trustees shall have the power and authority to use and apply Trust assets, including plan reserves, to pay or provide for the payment of all reasonable and necessary expenses of collecting contributions and payments and other monies and property to which they may be entitled, and of administering the affairs of this Trust, including the employment of such administrative, legal, expert, investment and clerical assistance, the purchase or lease of such premises, materials, supplies and equipment, and the performance of such other acts as the Trustees, in their sole discretion, find necessary or appropriate in the performance of their duties.
Section 7.5 – Breach of Fiduciary Duty
Any fiduciary who, while acting as or serving as a fiduciary, breaches any of the responsibilities, obligations or duties imposed upon him or her by the Trust Agreement or by law shall be personally liable to make good to the Trust any losses resulting from such breach, and to restore to the Trust any profits which may have been made through the use of the Trust assets, In addition, such fiduciary shall be subject to other equitable or remedial relief as the court deems appropriate, including his/her removal as a fiduciary, and reimbursement to the Trust of attorneys’ fees and costs incurred by the Trust as a result of a breach of fiduciary responsibility by a fiduciary. The Trust may, on advice of counsel, utilize Trust assets to pay attorneys’ fees and costs incurred in the defense of an individual Trustee accused of breaching his or her fiduciary responsibility, provided that such Trustee consent, by written agreement, to reimburse the Trust for such attorneys’ fees and costs if such Trustee is found by a court of competent jurisdiction to have in fact breached his or her fiduciary responsibility to the trust and/or its participants, if such monies are not reimbursed by insurance.
Section 7.6 – Allocation of Fiduciary Responsibilities
Fiduciary responsibilities may be allocated or delegated as follows, so long as the allocation or delegation meets the fiduciary standards set forth above and is evidenced by an appropriate resolution of the Board of Trustees:
- Any responsibility to manage or control Plan assets may be allocated only among the Trustees and any Fund Custodian, except insofar as such responsibility is delegated to an Investment Manager as provided hereafter.
- Other responsibilities may be allocated or delegated to any person, but any Participant or Beneficiary whose claim for self-funded benefits is denied. shall have the right to have the denial ultimately reviewed by the Board of Trustees itself except insofar as it may be permissible under applicable law for any other firm or person to make a final decision on review.
Section 7.7 – Application of Trust Assets
It shall be impossible at any time, prior to the satisfaction of all liabilities under the Trust with respect to the Participants and their Beneficiaries, for any part of the corpus of the income or reserves of the Trust to be used for, or diverted to, purposes other than for the exclusive benefit of such Participants or their Beneficiaries except:
- Any assets generated by payments in excess of premiums for disability or other coverage for participants, or from rebates from insurance companies and the income therefrom, may be used by the Trustees to pay the expenses of administration of the Trust or the disability or other plans or programs it administers, or to provide any other benefits for plan participants, and/or Trust members, the provision of which continues to qualify the Trust under Internal Revenue Code section 501(0(9).
- In the alternative, any excess insurance premiums, based on mortality or morbidity experience of the insurer, may, but need not be, refunded to the Participant whose contributions were applied to such premiums, at the discretion of the Trustees.
Any contributions returned under this section may not include any gains on such excess contributions, but must be reduced by any losses.
Section 7.8 – Breach of CoFiduciary
- The fiduciaries shall jointly manage and control the assets of the Trust, unless the Trust Agreement or the Trustees specifically allocate responsibilities, obligations or duties among the fiduciaries, and each fiduciary shall use reasonable care to prevent a co-fiduciary from committing a breach of a fiduciary responsibility. A fiduciary shall be liable for a breach of fiduciary responsibility of another co-fiduciary in the event:
- He/she knowingly participates in, or undertakes to conceal, an act or omission of the co-fiduciary, knowing such act or omission is a breach;
- If, by his/her failure to discharge his/her duties prudently and in accordance with the obligations set forth in this Trust Agreement, he/she has enabled the co-fiduciary to commit the breach; or
- If he/she has knowledge of a breach by a co-fiduciary and makes no reasonable effort under the circumstances to remedy such breach.
- In the event the responsibilities of the Trustees are allocated specifically to each of the Trustees or to:other fiduciaries, an individual fiduciary shall not be liable for an act or omission of another fiduciary in carrying out such responsibility, except to the extent that the appointing fiduciary failed to use prudence or failed to consider the interests of the Participants or Beneficiaries (1) in the appointment of the fiduciary; (2) in the allocation of the responsibility; (3) with respect to the establishment or implementation of the procedures under which the responsibilities were allocated; or (4) in continuing to prevent such allocation or designation.
- To the extent allowed by law, fiduciaries are not to be liable with respect to a breach of a fiduciary duty if such breach was committed before they became fiduciaries or after they ceased to be fiduciaries.
Section 7.9 – Compliance with Internal Revenue Code
The Trustees shall submit the Trust to the Internal Revenue Service for a determination of its status as a “voluntary employees’ beneficiary association” (“VEBA”) as described in Internal Revenue Code section 501(c)(9). If the Internal Revenue Service determines that the Trust, as adopted or amended, does not so qualify for the first Trust Year, the Trustees shall promptly so notify the Participants in writing. In such event, the Trustees shall terminate the Trust and direct the assets then remaining pursuant to Section 10.4, infra. In the event that the Trust so qualifies for the first Trust Year, the preceding sentence shall be inoperative and of no effect. The Trustees shall administer the Trust and the benefit plans and programs so that, to the extent allowed by the Internal Revenue Code, contributions are tax-deductible, the Trust is tax-exempt as provided under Internal Revenue Code section 501(c)(9), and the value of the insurance benefits is excludable from the Participant’s taxable income.
Section 7.10 – Persons Prohibited from Being Fiduciaries
No person who has been convicted of, or who has been imprisoned as a result of his/her conviction of a crime shall be permitted to serve as an administrator, fiduciary, officer, trustee, custodian, counsel, agent or employee of the Trust, or as a consultant to the Trust, during or for five (5) years after such conviction or after the end of such imprisonment, whichever is later, unless (a) his/her citizenship rights, having been revoked as a result of such conviction, have been fully restored; or (b) the Board of Parole of the United States Department of Justice determines that such person’s service would be permissible under law.
Article 8 – Investments
Section 8.1 – Investments
The Trustees may invest and reinvest all contributions or other monies not required for the payment of current premiums or expenses, without distinction between principal and income, in any property, real, personal or mixed, including, without limitation, common and preferred stocks, limited partnership interests, interests in trusts and evidences of indebtedness (including private placement securities, securities of non-U.S, issuers and convertible securities), stock options and other rights ,to acquire securities, stock index options and interest rate options, financial futures traded on regulated commodities futures exchanges, contracts for the immediate or future delivery of financial instruments and other property, direct or indirect investments in real property (including through fee ownership, leases, loans secured by primary or subordinated liens on real property, and any collective or part interest in any evidence of indebtedness and mortgage), securities of entities holding or investing in real property, certificates of deposit, demand or time deposits, bills, acceptances, repurchase agreements, commercial paper and other money market instruments, mutual funds or similar investment vehicles interests in or shares of investment companies (whether or not incorporated and whether or not registered under the Investment Company Act of 1940); provided, however, that investments shall be diversified so as to minimize the risk of large losses unless, under the circumstances, it is clearly prudent not to do so in the sole judgment of the Trustees.
Section 8.2 – Specifically Permitted Investments
In the event the Trustees designate one or more banks or similar financial institutions supervised by the United States or a state to serve as custodian of the Trust assets, or as a corporate trustee, or in another fiduciary capacity, the monies belonging to the Trust Fund may be invested in the accounts of such bank or institution, provided that such accounts bear a reasonable interest rate.
Further, the monies of the Trust Fund may be invested in (a) a common or collective trust fund, or pooled investment fund, maintained by a bank or trust company supervised by the United States or a state, or (b) a pooled investment fund of an insurance company, even though such bank, trust company or insurance company is a party-in-interest, provided that the bank, trust company or insurance company receives not more than reasonable compensation for managing such an investment.
Further, the monies needed for immediate expenses of the Plan or Trust may be deposited in a non-interest bearing account of a U.S. Regulated Bank.
Section 8.3 – Title to Investments and Other Assets
Title to all investments or other assets of the Trust Fund shall be maintained in the name of the Trust Fund, provided that for convenience in transferring stocks, bonds or other negotiable securities, title to such securities may be held in the name of the Trust Fund’s custodian bank or of its nominee.
Except as may be authorized by regulation of the Secretary of Labor, the indicia of ownership of all investments and other Assets of the Trust Fund shall not be maintained outside the jurisdiction of the district courts of the United States.
Section 8.4 – Specific Investment Powers
Whoever holds title to Trust assets shall have all rights* and powers with respect to investing the Trust property that an absolute owner would have, subject only to any written directions previously received from another fiduciary authorized hereunder to give such directions. These investment powers shall include, without limitation, the following powers in addition to those set forth elsewhere hereunder and others given by law.
- To hold in cash in a non-interest bearing account such portion of the Trust assets as may be reasonably required for the day-to-day administration of the Trust and disbursement of benefits, by depositing the same in any financial institution such as a bank or savings and loan (including any bank acting as Fund Custodian hereunder) subject to the rules and regulations governing such deposits. Additional cash shall be placed in interest-bearing accounts and/or obligations (which may be with the Fund Custodian) until such times as it is otherwise invested; and
- To participate in any plan of lease, merger, consolidation, exchange, foreclosure or reorganization affecting securities held hereunder at any time; and
- To deposit stocks under voting agreements; and
- To subscribe for stock or bond privileges; and
- To vote with respect to all securities or other assets in person or by proxy, except that where an Investment Manager has been appointed and is acting, proxies and other shareholder material with respect to assets under its supervision will be forwarded to it if it so requests; and
- To register securities in the name of a nominee, or to hold the same unregistered and in such form that they will pass by delivery; and
- To lease, repair, alter, or improve real estate or other assets; and
- To see any securities, real estate, or other assets at public or private sale for such prices and upon such terms as it may deem proper, without liability on the part of the purchasers to see to the application of the purchase money; and
- To borrow money and to secure the repayment thereof by mortgage on real estate, pledge of securities, or otherwise, without liability on the part of the lenders as to the application of the assets loaned; and
- To invest Trust assets collectively with funds of other trusts in one or more of the investment funds for employee benefit trusts established by a Fund Custodian or any other common or commingled fund now or hereafter maintained by any Fund Custodian as the same may be amended from time to time; and if any portion of the Trust is so invested, the declaration creating such funds shall be deemed to be incorporated into this Trust Agreement the same as if fully set forth here; and
- To lend stock certificates and other securities constituting part of the Trust assets to securities brokers and others; provided, that the terms and conditions of each such loan shall be established in accordance with, and shall comply with, the applicable. Plan, this Trust Agreement and all applicable rules, regulations and laws governing the Board, the applicable Plan and this Trust.
Section 8.5 – Fund Custodian
- Appointment – Insofar as permitted by law, the Board of Trustees may select one or more banks, trust companies, insurance companies or other qualified institutions or firms to act as Fund Custodian hereunder; and if a bank or trust company is selected, the Board may designate it as a corporate co-trustee. The selection shall be evidenced by one or more separate written agreements in which the Fund Custodian agrees to act, which shall specify the Fund Custodian’s fees and other charges and such other matters as may be agreed upon; said agreements are incorporated herein by reference and made a part hereof, and if there is any inconsistency between their provisions and the provisions of this document, the former shall govern to the extent that they are lawful. If no Fund Custodian is selected or acting, any powers given it below shall remain with the Board of Trustees, subject to its power of delegation.
- Resignation or removal – Any Fund Custodian may be removed by the Board of Trustees at any time upon delivery to the Fund Custodian of a written notice of removal, and any Fund Custodian may resign at any time by delivering a written notice of resignation to the Board of Trustees. The removal or resignation shall be effective on the date specified in the notice, but such date shall be not less than ninety (90) days from the date the notice is delivered, unless the other party consents to an earlier date.
Article 9 – Claims and Appeals
Section 9.1 – Procedures To Be Followed
The carriers who underwrite the insured programs of the Plan are the Administrators of those programs and make all claims and appeal decisions under their respective policies. Neither the Trustees of the Benefits Plan, nor the FPA, have any decision-making authority on issues of claims, appeals, or benefit payments, unless the contract between the insurance carrier and the Trust or FPA states otherwise.
Each insurance carrier has a claims and appeal procedure to be used for claims and appeals under the policy it underwrites. Detailed explanation of these claims and appeals procedures shall be provided to the Participants of the Plan in the documents provided by such carriers.
For any or all self-funded benefits hereafter provided by the Trust or any insured benefits for which the Trustees are required by law to provide an appeals process, the Trustees and the Participants and Beneficiaries shall follow these hearing procedures.
The procedures specified in this Article and in the Plan document shall be the exclusive procedures available to a Participant who is dissatisfied with the denial of a benefit award or who is otherwise adversely affected by any action of the Trustees.
Section 9.2 – Duty to Notify Chairperson of Claim
A Participant or Beneficiary shall be obligated to notify in a timely manner the Chairperson before he/she is entitled to any self-funded disability benefits, the Participant or Beneficiary needs to notify the Chairperson or other Trustee in writing within 20 days of the onset of total disability to be considered timely. Notification to any FPA member or any party other than the Chairperson is ineffective to obtain entitlement to such benefits.
Section 9.3 – Acceptance or Denial of Claim by Chairperson
The Chairperson shall consider the Participant’s claim for any self-funded Plan benefits and determine whether to grant or deny coverage under the Plan. If the claim is denied, the Participant has the right to appeal pursuant to procedures described of this Article 9.
Section 9.4 – Appeal Procedures
Denial. If a claim for self-funded Plan benefits made by a Participant is wholly or partially denied, the Chairperson shall give written notification of such denial to the Participant within thirty (30) days of receipt of such Participant’s claim for benefits. In the event the Chairperson does not provide written notice of his/her decision within thirty (30) days of the Participant’s claim, the claim shall be deemed denied. Notification shall include the following information:
- The specific reason(s) for such denial;
- Particular reference to the Plan provisions upon which the denial is based;
- A description of any additional material and/or information which may be needed to clarify or complete the claim or reverse the decision of the Chairperson, and an explanation of why such information is required; and
- An explanation of the Plan’s review procedure with respect to the denial of benefits,
Request for Hearing/Appeal.
- Any Participant Whose claim has been denied may appeal to the Board of Trustees to conduct a hearing in the matter, provided that he/she request such hearing, in writing, within thirty (30) days after being notified of the denial or within sixty (60) days from the date of the Participant’s claim, whichever is earlier. The Participant may request and examine all documents utilized by the Board in making its determination, and may submit written issues and comments to the Trustees. Failure to request review within sixty (60) days of the date of the denial constitutes a waiver of the right to appeal and precludes further review of such denial, whether based on the Plan document, statutes, or any other ground.
- The Trustees shall conduct a hearing no later than thirty (30) days after receipt of the participant’s written request for a hearing. Legal counsel shall consult with the Board during its review of the appeal, with the proviso that counsel need not be consulted if the appeal is brought under exigent and/or emergency circumstances or the question of the denial of benefits is routine, requiring no legal expertise.
- The Participant shall be entitled to present his/her position and any evidence in support thereof at the hearing. The Participant may be represented at the hearing by an attorney or any other representative of his/her choosing at the participant’s expense. Within thirty (30) days of the hearing on the participant’s appeal, the Trustees shall issue a written decision, affirming, – modifying, or setting aside the initial decision to deny benefits. If no such decision is received by the Participant, the appeal shall be deemed denied.
- In addition, any member of the Board of Trustees may object to a prior granting of benefits. If so, the Board shall handle the matter in accordance with the appeal provisions of this Article.
- Members of the Board shall act with regard to all appeals, as well as all other matters affecting the Benefit Trust Fund, in their fiduciary capacity. Board members, and each of them, shall act as a prudent person should when entrusted with the monies of Participants of the Benefit Trust Fund. Board members will be guided in their decisions by that “prudent person” standard, and with the knowledge that a violation of the standard may lead to their personal liability.
- All communications by and to the Trustees regarding Participants’ Benefit Trust Fund issues will be strictly confidential, including all paperwork, records, and any other materials presented to the Trustees or utilized by the Trustees.
- Penalties for False or Withheld Information. The Trustees shall have the authority to adopt rules and regulations by the terms of which reasonable penalties or forfeitures may be imposed upon Participants who (a) falsify any information requested of them in the administration of the Trust Fund and the benefit plans, or (b) fail to provide requested information within a reasonable time.
- Correction of Errors. It is recognized and acknowledged by all parties that the Trustees will provide benefits to participants based on Trust Fund records. It is also recognized and acknowledged that such records could be incorrect due to: (a) the Association reporting individuals who are not eligible for participation; (b) the Association reporting incorrect names; (c) the Association submitting incorrect applications; (d) recording or computation errors by the administrative agent; (e) computer errors; or (f) other similar circumstances. The Trustees shall have the authority to correct the Trust Fund records whenever errors are discovered and to terminate participation, adjust benefits, or seek the recovery of benefit ‘overpayments, as they may determine.
Section 9.5 – Standard of Review
No action of the Trustees may be revised, changed, or modified by any arbitrator, court, or other entity, unless the party seeking such action has exhausted all of its administrative remedies under the Trust Agreement and Plan Document and is able to show by clear and convincing evidence that the decision of the Trustees was arbitrary and capricious in light of the information actually available to them, and considered by them, at the time they made their decision. The purpose of this provision is to insure that decisions by the Trustees are final and binding on all persons to the fullest extent permitted by law. Therefore, if any of the foregoing provisions should be held to go beyond what is legally permissible, the remaining provisions shall nevertheless be given effect insofar as the law permits.
Article 10 – Amendment and Termination
Section 10.1 – Resources
Any benefits not provided by insurance carriers but provided pursuant to this Trust Agreement can be paid only to the extent that the Trust has available adequate resources for such payments. In the event that at any time the Trust does not have sufficient assets to permit continued payments hereunder, there shall be no liability upon the Board of Trustees,. individually or collectively, the Plan or FPA or any other person or entity of any kind to provide the benefits established hereunder.
Section 10.2 – Power to Amend the Plan and Trust Agreement
The Trustees expressly reserve the right, in their sole discretion, to amend, modify or terminate any type and amount of benefit under this Plan at any time (including changing the amount or payment method of participant contributions, or the eligibility rules for participation). No person has a vested right to any benefit under this Plan, and there is no guarantee that the Plan will continue indefinitely.
Section 10.3 – Procedure to Amend the Plan and/or Trust
This Trust Agreement may be amended by a majority vote of the Board of Trustees from time to time, and any Plan may be amended by the Board of Trustees from time to time, in either case effective as of any prior, current or future date, subject to the following limitations:
- Under no condition shall such amendment result in a change in the election or other selection procedures for Trustees without the concurrence of the Board of Directors of FPA, or result in or permit the distribution of any property for the benefit of anyone other than Participants or their Beneficiaries, except as allowed by applicable law.
- Such amendment shall not substantially change the duties, responsibilities or liabilities of the Trustees without their consent.
- No such amendment shall be effective if, as a result thereof, either the Plan or this Trust will no longer meet the requirements of the Internal Revenue Code, or this Trust no longer would be exempt from income taxes under Section 501 of the Internal Revenue Code, or any section or sections of said Code which amend, supplement or supersede said sections, or either of them.
Section 10.4 – Termination
- The Board of Trustees shall have the right to discontinue or to terminate this Trust and the Plan in whole or in part
- In the event of termination or partial termination of the Plan, the assets then remaining, after providing for the expenses of the Plan and for the payment of benefits previously approved, may either be utilized for the purpose of paying for benefits similar to those provided under the Plan, be distributed among the Participants, or be transferred to a plan operated by an Internal Revenue Code section 501(c)(5) or 501(0(9) trust providing similar benefits, at the absolute discretion of the Board of Trustees or as described in Section 10.6, infra. The Plan benefits are not insured by the U.S. Government Pension Benefit Guaranty Corporation or any other government agency.
Section 10.5 – Amendment to Election Procedures
Any amendment ot or change in the election procedures of the Trustees shall only be pursuant to mutual agreement between or among the Directors of the FPA.
Section 10.6 – Transfer of Assets to or from Another Benefit Trust
The Board of Trustees may transfer the Trust assets or any portion thereof to any other trust or non-profit entity which provide similar benefits, or may receive assets from any other such trust or non-profit entity which is wholly or partially terminated.
Article 11 – Limitations
Section 11.1 – Judgements against Trust Fund
Any money judgment against the Trust Fund shall be enforceable only against the Trust Fund entity and shall not be enforceable against any Trustee or other person, unless liability against the Trustee or other person, in his or her individual capacity, is established in accordance with applicable law.
Section 11.2 – Participant’s Rights
Except as specifically provided for in this Trust Agreement or in the Benefit Plan, no Participant shall. have any right, title, or interest in or to the Trust Fund, or in or to the contributions, or in or to the benefits provided.
No Participant shall be entitled to receive any part of the contributions in lieu of the benefits provided through the Plan, nor shall a Participant who does not qualify for benefits have any claim to the contributions which may have been paid on his or her behalf.
Section 11.3 – Cessation of Participation
In the event the FPA should cease its participation in the Trust Fund, there shall be no division or allocation of any of the monies or assets of the Trust Fund, except as may be required by law.
Section 11.4 – Reliance Upon Written Documents
The Trustees may act upon any written letter, report, certificate, instrument, or other document submitted to them by any Participant, the FPA, or by any other person, where such document appears to be genuine and to be signed by the proper person or persons, and the Trustees shall be under no duty to make any investigation or inquiry as to any statement contained in any such document.
Section 11.5 – Agents of Trust Fund
The Trust Fund is an entity separate and apart from FPA. Accordingly, unless authorized in a motion or resolution of the Board of Trustees, neither FPA nor any individual shall have any authority to act or function for or on behalf of the Trust Fund or as an agent thereof. Likewise, unless authorized in a motion or resolution of the Board of Trustees, no individual Trustee shall’ have any authority to act or function for or on behalf of the Trust Fund or as an agent thereof.
Article 12 – General Provisions
Section 12.1 – Instruments Executed by the Trustees
No party dealing with the Trustees, or any of them, shall be obligated to see to the application of any monies or properties of the Trust, or to see that the terms of the Trust Agreement have been complied with, or to inquire as to the necessity or expediency of any acts of the Trustees.
Every instrument executed by the Trustees shall be conclusive in favor of every person who relies upon it, that:
- At the time of the delivery of the instrument, the Trust Agreement is in full force and effect; and
- The instrument was executed in accordance with the terms and conditions of the Trust Agreement; and
- The Trustees were duly authorized and empowered to execute the instrument.
Section 12.2 – Applicable Agreements
The rights and duties of all parties (so far as they relate to this Trust and Trust Fund), and Trustees, shall be governed by the provisions of this Trust Agreement.
Section 12.3 – Governing Law
The Trust Agreement and the performance thereunder shall be governed by and construed according to applicable federal law, and to the extent that federal law is not applicable, according to the laws of the State of California.
Section 12.4 – Separability
If any provision of the Trust Agreement, any Plan established hereunder, the rules and regulations made pursuant thereto, or any other step in the administration of the Trust Is held illegal or invalid for any reason, then such illegality or invalidity is not to affect the remaining portions of the Trust Agreement, or rules or regulations adopted. They shall be construed and remain in force as if the illegal or invalid portions had never been inserted or established, if the remaining portions will enable the objectives and purposes of the Trust to be accomplished. Should any of the provisions of the Trust Agreement or rules and regulations be declared illegal or invalid, the appropriate parties shall immediately adopt a new provision to take the place of that declared illegal or invalid.
Section 12.5 – Number and Gender of Words
Whenever appropriate, words used herein in the singular may include the plural, the plural may be read as the singular, and the masculine may include the feminine and vice versa.
IN WITNESS WHEREOF, the parties have set their hands as of the day and year first above written.
FREMONT POLICE ASSOCIATION BENEFIT TRUST FUND
FREMONT POLICE ASSOCIATION BOARD OF DIRECTORS
This document is presented in its incorporated form for ease of viewing online. For a copy of the original Trust Agreement with separate, unincorporated amendments, contact the FPA Secretary.