Berkeley Municipal Code Art. 9 Amendment and Termination

It is the expectation and the intention of the employer to make such contributions as are provided for herein. The employer, however, in its sole and absolute discretion reserves the rights set forth in the succeeding sections of this article. (Ord. 6747-NS § 1, 2003)

Except as provided in Section 4.36.903, the Council may at any time amend this plan and trust in whole or in part. No amendment shall operate retroactively in such a manner as to deprive any participant of rights which have vested in such participant prior to the enactment of the amendment or diminish the amount thereof, unless such amendment is required in order to qualify this plan and trust under Section 401 and 501 of the Internal Revenue Code of 1986. No amendment shall cause or permit any part of the trust to revert to or become the property of the employer or to be used for or diverted to any purpose other than the exclusive benefit of participants, former participants or their beneficiaries. No amendment substantially increasing the obligations or the liabilities of the trustee shall be made without the trustee’s written consent. (Ord. 6747-NS § 1, 2003)

Notwithstanding anything contained herein to the contrary, the employer shall not have the power to amend Section 4.36.301 to reduce its contribution to the plan without a majority vote of the participants and former participants due benefits under the plan concurring on the amendment thereto. (Ord. 6747-NS § 1, 2003)

The Council shall have the right, if a majority of the participants and former participants due benefits under the plan agree by written vote, to discontinue the employer’s contribution hereunder and to terminate this plan and trust.

In the event of termination the employer shall have no obligation to make any contribution to the trustee for the year of termination or thereafter. (Ord. 6747-NS § 1, 2003)

The Council, if a majority of participants and former participants due benefits under the plan agree by written vote, may by amendment suspend for a definite or indefinite period the employer’s obligation to make contributions hereunder. In the event that such suspension of contributions causes the Internal Revenue Service to disqualify the plan and trust, such suspension will be deemed a termination for purposes of this plan. (Ord. 6747-NS § 1, 2003)

Any amendment or termination shall be accomplished by appropriate resolution of the Council and a copy of such resolution shall be delivered to the committee and to the trustee. (Ord. 6747-NS § 1, 2003)

Upon discontinuance of the employer’s contributions or termination of the plan, the trustee shall revalue the trust and, after satisfying current obligations of the plan and setting aside funds for anticipated future obligations of the trust, shall inform the committee in order that it may make the necessary adjustments to all participants’ accounts in the ratio that the balance in each such account bears to the total amount in all such accounts.

Upon termination, of the plan, if contributions made under Section 4.36.301 to provide disability benefits under Article 7 have remained in the trust, an annuity shall be purchased for each then disabled participant. If assets are not sufficient to provide the full benefits payable under Article 7, each participant’s benefit shall be reduced proportionately to the amount of total monthly benefit. Any excess assets remaining after satisfaction of all liabilities under Article 7 shall be added to participant’s account balances in the ratio that the balance in each such account bears to the total amount in all such accounts.

The committee in its sole discretion may elect, with respect to the account balances of participants, any method of distribution or combination thereof, including but not limited to, the transfer to a trust for the benefit of the former participants and their beneficiaries or a continuation of the trust associated with this plan to provide for benefits commencing at their normal retirement dates.

The committee shall then furnish instructions to the trustee concerning distribution of the balance of the accounts of the participants, former participants and their beneficiaries. (Ord. 6747-NS § 1, 2003)

If the employer merges or consolidates with or into another corporation, or if substantially all of the assets of the employer shall be transferred to another corporation, this plan shall terminate on the effective date of such merger, consolidation or transfer. However, if the surviving corporation resulting from such merger or consolidation, or the corporation to which the assets have been transferred, adopts this plan, the plan shall continue and said corporation shall succeed to all rights, powers and duties of the employer hereunder. The employment of any employee who is continued in the employ of such successor corporation shall not be deemed to have terminated for any purpose hereunder. (Ord. 6747-NS § 1, 2003)