Berkeley Municipal Code Art. 1 Definitions

The following words and phrases as used in this plan shall have the meanings set forth in this article, unless a different meaning is clearly required by the context.

"Beneficiary" shall mean any person who, under this plan, becomes entitled to any benefits upon the death of a participant or former participant. (Ord. 6748-NS § 1, 2003)

"Committee" shall mean the investment plans committee appointed under the provisions of Article 7 to administer this plan in accordance with its provisions. The committee shall be the plan administrator for the purposes of Section 3(16) of the Employee Retirement Income Security Act of 1974 (ERISA). (Ord. 6748-NS § 1, 2003)

"Compensation" shall mean the total amount of an employee’s compensation while a participant as reported for W-2 purposes before any payroll deductions for income tax, amounts elected to be deferred under any deferred compensation plan, group insurance, or for any other purpose, and effective for plan years beginning on and after January 1, 2001, including any amount that is not includable in the participant’s taxable gross income pursuant to Section 132(f) of the Internal Revenue Code, but excluding payments which would not be subject to FICA tax if the dollar limitation of Section 3121(a) did not apply and if the employer were covered by the Federal Social Security System, contributions by the employer under this plan, group insurance, retainer fee under contract, or the like. Notwithstanding the foregoing, the annual compensation of each participant taken into account in any Plan Year beginning after December 31, 2001 shall not exceed $200,000 adjusted for cost-of-living increases in accordance with Section 401(a)(17)(B) of the Code. (Ord. 7584-NS § 1, 2017)

"Council" shall mean the City Council of the City of Berkeley. (Ord. 6748-NS § 1, 2003)

"Effective date." The original plan was effective July 22, 1988. The effective date of this amended and restated plan is January 1, 2001, except as otherwise specifically provided. (Ord. 6748-NS § 1, 2003)

"Employee" shall mean any person who is:

1. Employed by the City and who is covered under its miscellaneous employees contract with the Administration of the State of California Public Employees Retirement System (a CalPERS miscellaneous employee); or

2. Employed by the City and represented by any of the following associations:

•Berkeley Police Association (a police employee), effective January 1, 1989; or

•Berkeley Fire Fighters Association Local 1227 I.A.F.F., effective March 20, 2022; or

3. Employed by any other public entity Employer that has adopted the Plan with approval of the Council. (Ord. 7800-NS § 1, 2022; Ord. 7264-NS § 1, 2012)

"Employer" shall mean the City of Berkeley and any other public entity that has adopted the Plan with the approval of the Council. Effective as of July 1, 2007, the Berkeley Housing Authority shall be considered an Employer under the Plan with respect to its employees. An Employer who has been approved to participate in the Plan may do so as long as it fulfills its obligations as an Employer under the Plan to the satisfaction of the City of Berkeley, as determined by the City of Berkeley’s sole and absolute discretion. If the City determines that an Employer is not fulfilling its obligations, the City shall provide written notice to that effect to the Employee and that Employer’s participation under the Plan shall terminate as of the date of such notice. (Ord. 7800-NS § 2, 2022; Ord. 7264-NS § 2, 2012)

"Fiduciary" shall mean any person who exercises any discretionary authority or discretionary control respecting the management or disposition of plan assets, renders any investment advice for a fee or other compensation, or exercises any discretionary authority or responsibility for plan administration. The trustee, employer, and any other person who meets this definition will be considered a fiduciary; provided, however, that participants who elect to direct their investments as provided in this plan shall not, solely by virtue of such direction and control, be considered fiduciaries of the plan. For purposes of the plan, the City of Berkeley shall be the plan fiduciary. (Ord. 7264-NS § 3, 2012)

"Fiscal year" shall mean the accounting period of the employer. (Ord. 6748-NS § 1, 2003)

"Gender." Whenever a personal pronoun is used in the neutral gender, it shall be deemed to include the feminine and masculine also. "They/them" shall indicate a singular individual, unless the context indicates the contrary. (Ord. 7670-NS § 3, 2019; Ord. 6748-NS § 1, 2003)

"Participant" shall mean each employee who qualifies in the manner as set forth in Article 2 hereof. (Ord. 6748-NS § 1, 2003)

"Plan" shall mean the City of Berkeley Supplementary Retirement and Income Plan II as herein set forth or as amended from time to time. (Ord. 6748-NS § 1, 2003)

4.38.112(A) PERS.

"PERS" shall mean the Public Employees Retirement System of the State of California, as now in effect and as amended from time to time. (Ord. 6748-NS § 1, 2003)

"Plan year" shall mean the initial period which begins on the effective date hereof and ends on December 31, and each successive 12-month period thereafter, which ends with December 31, or, if earlier, when the plan terminates in accordance with its terms. (Ord. 6748-NS § 1, 2003)

"Service" shall mean employment of an employee with the employer. (Ord. 6748-NS § 1, 2003)

"Trust" shall mean the trust established pursuant to the trust agreement. (Ord. 6748-NS § 1, 2003)

"Trust agreement" shall mean the trust agreement between the employer and the trustee, a copy of which is attached hereto. (Ord. 6748-NS § 1, 2003)

"Trustee" shall mean the person or persons or corporation or any successor in interest having trust powers and acting under the trust agreement. (Ord. 6748-NS § 1, 2003)

4.38.118(A) Related plan.

"Related plan" shall mean any defined contribution plan (as defined in Section 415(k) of the Code), other than this plan, maintained by the employer including, if applicable, after December 31, 1985, any welfare benefit fund that is defined in Section 419(e) of the Code. (Ord. 6748-NS § 1, 2003)

4.38.118(B) Highly compensated employee.

"Highly compensated employee" shall mean any employee who performs services for the employer during the plan year and who received compensation from the employer during the look-back year in excess of $80,000 (as adjusted pursuant to Code Section 415(d)); and was in the top paid group of employees for the look-back year.

A. For the purposes of this section:

1. The term "compensation" shall have the meaning given such term by Code Section 415(c)(3); provided, however, that compensation shall include amounts that the participant elects to defer under Section 125, 402(e)3, 402h(1)(B), 403(b), or 457(b) of the Code and certain contributions described in Section 414(h)(2) of the Code that are picked up by the employing unit and treated as employer contributions and, effective for plan years beginning on and after January 1, 2001, shall also include any amount that is not included in the participant’s taxable gross income pursuant to Section 132(f) of the Code.

2. The term "look-back year" shall mean the 12 consecutive month period immediately preceding the plan year.

3. The term "top paid group" shall mean the top 20% of active employees ranked on the basis of compensation received from the employer during the plan year. Employers aggregated under Code Section 414(b), (c), (m), (n), or (o) shall be treated as a single employer. The determination of who is a highly compensated employee, including the determination of the identity of the employees in the top paid group and the compensation that is considered, will be made in accordance with Code Section 414(q) and the regulations thereunder, except as specifically provided to the contrary in Code Section 401(a)(17). (Ord. 6748-NS § 1, 2003)

4.38.118(C) Family member.

This section is repealed effective January 1, 1997. (Ord. 6748-NS § 1, 2003)

4.38.118(D) Police employee.

"Police employee" shall mean any person who is employed by the employer and who is represented by the Berkeley Police Association. (Ord. 6838-NS § 2 (part), 2005; Ord. 6748-NS § 1, 2003)