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2013-02-01_Agenda Packet--Dossier de l'ordre du jourr. City of Saint John Common Council Meeting AGENDA Friday, February 1, 2013 4:15 pm 8th Floor Boardroom, City Hall Si vous avez besoin des services en francais pour une reunion de Conseil Communal, veuillez contacter le bureau de la greffiere communale au 658 -2862. Pages 1. Call to Order - Prayer 2. Approval of Minutes 3. Approval of Agenda 4. Disclosures of Conflict of Interest 5. Consent Agenda 6. Members Comments 7. Proclamation 8. Delegations / Presentations 9. Public Hearings 10. Consideration of By -laws 11. Submissions by Council Members 12. Business Matters - Municipal Officers 13. Committee Reports 14. Consideration of Issues Separated from Consent Agenda Powered By: ['� � �]E- 1 15. General Correspondence 16. Supplemental Agenda 17. Committee of the Whole 17.1 City Manager: SRP - Declaration of Trust - Amendments 1 -27 18. Adjournment 2 The City of Saint John Seance du conseil communal Vendredi 1 f6vrier 2013 Salle de conference, 8e 6tage, hotel de ville 16 :15 Comit6 pl6nier 1. Ouverture de la seance Si vous avez besoin des services en frangais pour une reunion de Conseil Communal, veuillez contacter le bureau de la greffi&e communale au 658 -2862. Chacun des points suivants, en totalit6 ou en partie, peut faire 1'objet d'une discussion en priv6 en vertu des dispositions pr6vues a Particle 10 de la Loi sur les municipalites. Le conseil /comit6 prendra une ou des d6cisions a cet 6gard au cours de la seance publique 16 h 30 — Salle de conference, 8e etage, hotel de ville 1.1 Question juridique 10.2(4)(f) Seance ordinaire 1. Ouverture de la reunion, suivie de la priere 2. Approbation du proces- verbal 3. Adoption de l'ordre du jour 4. Divulgations de conflits d'interets 5. Questions soumises a 11approbation du conseil 6. Commentaires presentes par les membres 7. Proclamation 8. Delegations et presentations 9. Audiences publiques a 19 It 10. Etude des arretes municipaux 11. Interventions des membres du conseil 12. Affaires municipales evoquees par les fonctionnaires municipaux 13. Rapports deposes par les comites 14. Etude des sujets ecartes des questions soumises a 1'approbation du conseil 15. Correspondance generale 16. Ordre du jour supplementaire 17. Comite plenier 17.1 Directeur general :SRP — declaration de fiducie - amendements 18. Levee de la seance x". January 31, 2013 To Members of Saint John City Council Subject: Special Meeting Please be advised that a special meeting of Open Council will be held on Friday, February 1St, 2013 in the 8th floor boardroom of City Hall at 4:15 pm to discuss the shared risk pension plan. Sincerely, Mayor Mel Norton SAINT JOHN P.O. Box 1971 Saint John, NB Canada E2L 4L7 J www saijohn.ca C.P. 1971 Saint John, N -B. Canada E2L ALl 3 REPORT TO COMMON COUNCIL January 31, 2013 His Worship Mayor Mel Norton and Members of Common Council Your Worship and Councillors, Subject: SRP — Declaration of Trust - Amendments rZ The City of Saint John Council at its meeting of January 29th, 2013 considered the draft declaration of trust for the new SRP and subsequently adopted a resolution that contemplated elimination of reimbursement of wages, Iimitations on travel for training and inclusion of provisions for reporting to the plan sponsor and the ability to secure information as required. The ensuing discussions between the City Solicitor and Ms. Steele and through her with the Task Force resulted in the following revisions to the draft text; • Elimination of reference to reimbursement of lost wages (2.4 and 3.4(b)) • Inclusion of an express provision for annual reporting as per the PBA (4.3(e)) • Requirement that expenses must be "reasonable" (4.30)) The proposals to provide for the ability for Council and the City Manager to secure information as required and applying specific restrictions on the travel needs for training were not considered appropriate. Recommendation That Common Council approve the attached (v. 8) revised Agreement and Declaration of Trust for the City of Saint John Shared Risk Plan dated February 1St, 2013. Respectfully submitted, J. Patrick Woods CGA City Manager AGREEMENT AND DECLARATION OF TRUST FOR CITY OF SAINT JOHN SHARED RISK PLAN Dated as of this 1St day of February, 2013 TABLE OF CONTENTS PREAMBLE...................................................................................................... ..............................1 ARTICLEI DEFINITIONS .............................................................................. ..............................1 ARTICLE II BOARD OF TRUSTEES ............................................................. ..............................3 ARTICLE III TRUST AND TRUST FUND .................................................... .............................10 ARTICLE IV ADMINISTRATION ................................................................. .............................11 ARTICLE V MODIFICATION AND AMENDMENT ................................... .............................15 ARTICLE VI TERMINATION OF TRUST .................................................... .............................16 ARTICLE VII MISCELLANEOUS ................................................................. .............................16 3 AGREEMENT AND DECLARATION OF TRUST PREAMBLE This Agreement and Declaration of Trust made as of the 1St day of February, by and between the undersigned Trustees. WHEREAS, the Saint John Fire Fighters Association, International Association of Fire Fighters, Local 771 ( "IAFF "), Saint John Police Association ( "SJPA "), CUPE, Local 18, Saint John City Outside Workers ( "CUPE 18 ") and CUPE, Local 486 ( "CUPE 486 ") (collectively, the "Unions ") and the City of Saint John (the "Employer ") entered into a memorandum of understanding dated December 21, 2012 (the "MOU ") to convert the City of Saint John Pension Plan (the "Pre- Conversion Plan ") to a shared risk plan, known as the City of Saint John Shared Risk Plan (the "Saint John SRP "); WHEREAS, in accordance with article 3.1(z) of the MOU, the Board of Trustees for the Saint John SRP must be established by February 1, 2013; WHEREAS, article 3.1(z) of the MOU provides that in the interim the pre- conversion City of Saint John Plan board of trustees (known as the Pension Board) (the "Pension Board ") shall act as the Board of Trustees for the Saint John SRP; and WHEREAS, this Agreement and Declaration of Trust is entered into to newly constitute a Board of Trustees that shall maintain and administer the Saint John SRP in accordance with the provisions of the Saint John SRP, the Pension Benefits Act and the Income Tax Act. NOW THEREFORE, in consideration of the premises, it is understood and agreed as follows: ARTICLE I DEFINITIONS As used herein, the following terms shall have the meaning specified in this Article: 1.1 "Acceptance of Trusteeship" means an instrument in writing executed by a Trustee whereby he or she accepts the trusteeship set forth in this Agreement substantially in the form of the attached Schedule A; 1.2 "Actuary" means a Fellow of the Canadian Institute of Actuaries, or a firm employing such a person, appointed by the Board of Trustees for the purposes of the Saint John SRP; 1.3 "Agreement" means this Agreement and Declaration of Trust; 1.4 "Alternate Trustee" means an alternate trustee appointed by a Party in accordance with Article II; 1.5 "Board of Trustees" or "Trustees" means the Board of Trustees of the Saint John SRP and the individual members appointed in accordance with Article II; 4 -2- 1.6 "City Appointee" means a Trustee appointed by the Common Council of the Employer in accordance with Article 11; 1.7 "Collective Agreements" means the following collective agreements covering employees represented by the bargaining units of the Unions: Collective Agreement between The City of Saint John, N.B. and the Saint John Fire Fighters' Association, Local Union No. 771; Working Agreement between The City of Saint John, N.B. and The Canadian Union of Public Employees, Saint John City Hall Employees' Local Union No. 486, C.L.C.; Working Agreement between The Board of Police Commissioners for the City of Saint John and The Canadian Union of Public Employees, Saint John City Hall Employees' Local Union No. 486, C.L.C.; Working Agreement between The Saint John Board of Police Commissioners and The Saint John Police Association; and Working Agreement between The City of Saint John, N.B. and The Canadian Union of Public Employees, Local #18 (Outside Workers); 1.8 "Conversion Date" means January 1, 2013; 1.9 "Effective Date" means February 1, 2013; 1.10 "Employees" means the full -time and part-time employees covered by the Collective Agreements who now are, or who will become members of the City of Saint John Shared Risk Plan by virtue of their inclusion as full -time and part-time employees in the bargaining units covered by the Collective Agreements and any full -time and part-time non - unionized employees employed by the Employer who now are, or who will become members of the City of Saint John Shared Risk Plan; 1.11 "Employer" means the City of Saint John; 1.12 "Facilitator" means a person appointed by the Board of Trustees pursuant to Section 2.6(a); 1.13 "Fund" means the assets held in trust under the terms of the Saint John SRP and the Funding Contract to provide for the payment of benefits as described in the plan to Members and their beneficiaries and which is also referred to herein as the "Saint John SRP Trust Fund "; 1.14 "Funding Agency" means a trust or insurance company, designated by the Board of Trustees to hold the whole or a portion of the assets of the Fund at any time under the terms of the Funding Contract; 1.15 "Funding Contract" means a contract between the Funding Agency and the Board of Trustees relating to the management, investment and administration of the Fund; 1.16 "Funding Policy" means the funding policy for the Saint John SRP, as amended from time to time, in accordance with the Saint John SRP and the Pension Benefits Act; 1.17 "Income Tax Act' means the Income Tax Act, R.S.C. 1985 c.l (5th supplement), as amended from time to time, together with any relevant regulations and administrative rules made thereunder from time to time; 5 -3- 1.18 "Investment Policy" means the investment policy established by the Board of Trustees for the Saint John SRP in accordance with the Pension Benefits Act; 1.19 "Member" means an individual who has joined the Saint John SRP in accordance with the terms thereof and who remains contingently or absolutely entitled to a benefit entitlement under the Saint John SRP; 1.20 "Party" or "Parties" means a Union or Unions and/or the Employer as the context requires; 1.21 "Pension Benefits Act" means the Pension Benefits Act, R.S.N.B. ch. P -5.1, as amended from time to time, together with any relevant regulations and administrative rules made thereunder from time to time; 1.22 "Pension Board" has the meaning set forth in the Preamble; 1.23 "Plan Year" means the calendar year; 1.24 "Pre- Conversion Plan" has the meaning set forth in the Preamble; 1.25 "Saint John SRP" has the meaning set forth in the Preamble and includes amendments of such plan from time to time in accordance with the terms thereof and the Pension Benefits Act; 1.26 "Superintendent" has the meaning set forth in the Pension Benefits Act; 1.27 "Trustees Act" means the Trustees Act R.S.N.B. 1973, T -15, as amended from time to time, together with any relevant regulations and administrative rules made thereunder from time to time; 1.28 "Unions" has the meaning set forth in the Preamble and "Union" means one of the Unions as appropriate to the context; and 1.29 "Union Appointee" means a Trustee appointed by a Union in accordance with Article H. ARTICLE II BOARD OF TRUSTEES 2.1 COMPOSITION OF BOARD (a) The Board of Trustees under this Agreement, who shall be the Trustees of the Fund, shall consist of eight (8) Trustees, (including, for greater certainty, such successor Trustees as may be designated from time to time as hereinafter provided). (b) IAFF shall appoint one (1) Trustee. SJPA shall appoint one (1) Trustee. CUPE 18 shall appoint one (1) Trustee. CUPE 486 shall appoint one (1) Trustee. The Common Council of the Employer shall appoint four (4) Trustees. Each Party -4- may also appoint an Alternate Trustee (or, in the case of a Party that has appointed multiple Trustees, Alternate Trustees up to the number of Trustees appointed by the Party) who may attend meetings of the Trustees and act as a Trustee in the event that the Trustee appointed by such Party is unable to attend a meeting of the Board of Trustees. Where a Party that has designated multiple Trustees has designated more than one alternate Trustee, the Party may establish a ranking order as to which Alternate Trustee should first be called upon to attend a meeting of the Board of Trustees where an appointed Trustee is unable to attend. For greater certainty, where an Alternate Trustee attends a meeting instead of the appointed Trustee, such Alternate Trustee shall have all rights, powers, duties and obligations of the appointed Trustee for purposes of the meeting. Any Alternate Trustees appointed as of the date of this Declaration of Trust are set out on Schedule B. (c) The initially appointed eight (8) Trustees shall take office on the Effective Date, at which time the Pension Board shall cease to act as trustees for the Saint John SRP. 2.2 APPOINTMENTS TO THE BOARD (a) Appointments to the Board of Trustees shall be for a term of four (4) consecutive years. Such appointments to the Board of Trustees may be renewed. (b) The members of the Board of Trustees shall act independently of the Party who appointed him or her. (c) In order to qualify as a Trustee, a Trustee shall not be a non- resident of Canada for purposes of the Income Tax Act. (d) Each Trustee shall agree to accept the trusteeship and to act in that capacity strictly in accordance with the provisions of the Saint John SRP and this Declaration of Trust and to either execute this Agreement or to sign an Acceptance of Trusteeship upon their appointment as a Trustee. (e) A Trustee may be removed by the Superintendent in accordance with the Pension Benefits Act. In these circumstances the Party that appointed the removed Trustee shall appoint a replacement Trustee within sixty (60) days (which may, for greater certainty, be the Party's Alternate Trustee), failing which a replacement Trustee may be appointed by the Superintendent in accordance with the Pension Benefits Act. (f) If a Trustee, without good reason, fails to attend two (2) consecutive meetings of the Board of Trustees or three (3) meetings of the Board of Trustees within a one (1) calendar year period, (in each case, called in accordance with the provisions of this Agreement), the Board of Trustees shall hold a vote to determine whether such Trustee shall be removed from the Board of Trustees and the Board of Trustees may by vote in accordance with Section 2.5(k) remove such Trustee. For greater certainty, the Trustee who has failed to attend the meetings shall not 7 -5- be entitled to be present for the discussion or voting if he or she is present at the meeting where the potential removal is addressed. If such Trustee is removed, the Party that appointed the removed Trustee shall appoint a replacement Trustee within sixty (60) days (which may, for greater certainty, be the Party's Alternate Trustee). (g) Each Trustee shall continue to serve until his or her resignation, incapacity, removal by the Superintendent, removal by vote of the Trustees under Section 2.2(f), death, or termination of his or her term as a Trustee on the Board of Trustees. (h) Any Trustee may resign at any time upon giving notice to the chairperson of the Board of Trustees. In the event of a Trustee ceasing to act whether by incapacity, resignation, death, removal by the Superintendent, removal by vote of the Trustees under Section 2.2(f), or termination of his or her term as a Trustee on the Board of Trustees, the Trustee shall be replaced by the Party that originally appointed the said Trustee. For greater certainty, the Party may appoint the Party's Alternate Trustee to replace the said Trustee. (i) In the event of the incapacity or resignation of a Trustee, such Trustee shall be fully discharged from all future duties, responsibilities and liabilities, except as set out in Article VII of this Agreement, upon notice in writing being received from him or her or an agent, personal representative or power of attorney for personal care on his or her behalf by the chairperson. The notice shall state the date of such resignation or incapacity and shall be effective as of that date. In the event of the death of a Trustee, his or her heirs, administrators, estate trustees, executors and assigns shall be fully discharged from all future duties and responsibilities in respect of the Saint John SRP as of the date of the death. (j) In the event of the inability, refusal, or incapacity of a Trustee to act as a Trustee, if the Party that appointed the said Trustee also appointed an Alternate Trustee, such Alternate Trustee shall possess and may exercise any and all the powers of such Trustee for a reasonable time pending the return of the Trustee, or until the assumption of his or her powers, duties, and obligations by his or her successor. (k) Any successor Trustee shall become vested with all the property, rights, powers, duties and obligations of a Trustee hereunder immediately upon his or her designation as a successor Trustee and upon his or her execution of an Acceptance of Trusteeship. All the Trustees then in office as well as other appropriate persons shall be notified immediately. No Trustee shall be responsible for any act or omission of the Trustees, the Pension Board, or any of them, which occurred prior to his or her appointment. (1) Upon expiration of the term of any Trustee, a successor, who may be the same or another person, shall be appointed in the manner set forth in this Section 2.2. If no other successor to a Trustee has been appointed as described in this Section 2.2 prior to the end of the Trustee's term, then such Trustee shall be deemed to have been appointed for a further term. 8 (m) When a Trustee ceases to act as a Trustee for any reason he or she shall forthwith turn over to the other Trustees any records, books, documents, monies and other properties and assets in his or her possession forming part of the Fund or incidental to his or her duties as a Trustee under this Agreement or relating to the administration of the Fund. 2.3 ACCEPTANCE OF TRUST A Trustee referred to in the preceding sections of this Article, who shall be a natural person, upon signing this Agreement, or upon written Acceptance of Trusteeship filed with the Board of Trustees in the case of any successor additional Trustee, shall be deemed to accept the trusts referred to in Article III and to consent to act as Trustee and agree to administer the Fund as provided herein. 2.4 COMPENSATION OF TRUSTEES The Trustees shall not be remunerated for the service that they render in carrying out the duties of the Board of Trustees and 'shall serve without compensation from the Fund except for reimbursement for all reasonable expenses in connection with meetings of the Trustees and attendance at Trustee education programs in accordance with Section 2.7. 2.5 MEETINGS (a) Within thirty (30) days of the effective date of this Agreement, the Trustees shall meet in person at a time and place designated by the Chairperson of the Pension Board. At the first meeting of the Trustees, the Trustees shall elect from amongst themselves a chair and a vice- chair. If the chairperson is a Union Appointee, the vice -chair shall be a City Appointee or vice versa. The positions of the chair and vice -chair shall be held for two (2) years from the date of such election. Upon the expiry of the term of the chair and vice- chair, the Trustees may hold a new election if they desire. If no election is held, the original chair and vice -chair shall continue for a further two (2) years. No chair or vice -chair shall remain in office for more than four (4) consecutive years. Upon the expiry of the term of the chair and vice- chair, a new election shall be held amongst the Trustees. If the original chair was a Union Appointee, the new chair shall be a City Appointee and likewise for the vice- chair. In the event of the resignation of the chair during his or her term, the vice -chair shall automatically become the chair and a new vice -chair shall be elected by all the Trustees from amongst the available Trustees. In the event of the resignation of the vice - chair, the available Trustees shall elect among themselves a new vice -chair at the first meeting after the vacancy of the vice - chair. For greater certainty, at all times one of the chair and the vice -chair shall be a Union Appointee and the other shall be a City Appointee. At the first meeting of the Trustees, the Trustees shall also name a Facilitator in accordance with Section 2.5. (b) All meetings shall be held in person. However, if consented to by the chair and vice chair, any or all of the Trustees may participate in a meeting of the Board of Trustees by means of such telephone, electronic or other communication facilities 9 -7- as to permit all persons participating in the meeting to communicate with each other simultaneously and instantaneously, and any Trustee participating in such a meeting by such means is deemed to be present at the meeting. Any such consent shall be effective whether given before or after the meeting to which it relates and may be given with respect to all meetings of the Board of Trustees held while the Trustee holds office. Despite the foregoing, meetings by telephone, electronic or other communication facilities as to permit all persons participating in the meeting to communicate with each other simultaneously and instantaneously prior to the first in person meeting of the Board of Trustees (called pursuant to section 2.5(a)) may be held in accordance with this Section provided that all Trustees approve. (c) The Trustees shall meet as frequently as they determine, but not fewer than four (4) times per year at such time and place as the Trustees may agree upon. (d) Any six (6) Trustees may call a special meeting of the Trustees at a place so specified by those calling the meeting. Such notice shall either be delivered in person to all Trustees and to all Parties or transmitted to an electronic address of such persons as provided in Section 7.3, in each case, at least five (5) days prior to the meeting. (e) Within nine (9) months of the end of the Plan Year, there shall be held a meeting of the Trustees, which shall be the annual meeting, at which time the Trustees shall ensure that all reports, procedures and policies required to be reviewed and/or filed by the Trustees, such as audited financial statements, funding policy, investment policy, risk management procedures and any investment management reports, actuarial reports and other reports, procedures and policies have been reviewed and/or filed in accordance with the Pension Benefits Act. The Trustees shall invite representatives of the Parties to attend the annual meeting for purposes of observing the tabling of the aforementioned reports, procedures and policies, but such representatives shall have no voice or vote. (f) Regular meetings of the Trustees shall be called by the chairperson by giving notice in accordance with Section 7.3 at least ten (10) clear days before the date of the meeting to the Trustees and to the Parties. (g) Representatives of each of the Parties may attend any meeting of the Trustees only for the purpose of observing. The chair of the Board of Trustees, in his or her absolute discretion, may limit the number of observers based upon the space availability for the meeting. (h) Any notice to the Trustees may be validly given if delivered in accordance with Section 7.3. No notice of meeting shall be necessary when a quorum is present and those comprising the quorum consent to the transaction of business, and the Trustees, if any, who are not present waive notice, in writing. (i) In order to transact any business at a meeting, a quorum shall be present. A quorum shall be at least six (6) Trustees. In the event that there is an unequal 10 -8- number of Union Appointees and City Appointees present for the purpose of any vote there shall be deemed to be an equal number of Union Appointees and City Appointees regardless of the actual number of Trustees present. If there are a greater number of Union Appointees than City Appointees in attendance, the Union Appointees shall only vote in the number of Trustees in attendance by the City. If there are a greater number of City Appointees than Union Appointees in attendance, the City Appointees shall only vote in the number of Trustees in attendance by the Unions. For greater certainty, where there are an unequal number of Union Appointees and City Appointees present a decision of the Board of Trustees may be made in accordance with this section with less than six Trustees voting on the matter. (j) In the event that no quorum should be present for the transaction of business at any meeting, and further at least three (3) Union Appointees or three (3) City Appointees are present, the Party with at least three (3) Trustees present may, in its absolute discretion, give notice to the other Trustees in writing of the date of the next meeting of the Trustees. If at such next meeting there is no quorum present due to the absence of at least three (3) Trustees appointed by the same Party who were absent previously, the Party whose Trustees are absent will be deemed to have waived these quorum requirements for the purpose of such meeting, and the meeting may proceed. Any resolutions adopted or other action taken at such meeting shall be valid and effective as if passed at a meeting at which a quorum were present and all interested Parties shall be deemed to be in agreement with the decisions made by the Trustees and to be bound by such decisions. The decisions made at such meetings are not subject to reconsideration without the specific agreement of the Trustees appointed by the Party who were present and met with the quorum requirements at both previous meetings. (k) The decisions of the Trustees shall be a consensus. However, when a consensus cannot be reached, a vote may be held upon the request of any Trustee and the chair shall have the right to vote in any vote. A tie vote results in a dead lock. In the event of a dead lock, a meeting of the Trustees shall be held no later than ten (10) clear days after the dead lock has arisen for the purpose of resolving the issue or such later dates as may be agreed upon by the Trustees. In the event the dispute is not resolved at such meeting, the matter must be referred to the Facilitator. (1) Unless otherwise agreed by the Trustees by resolution, policy or written instrument, Roberts' Rules of Order will be used in the conduct of the meetings of the Trustees. (m) Decisions may also be made at any time by the Board of Trustees without a meeting provided that both the chair and vice chair so agree, by obtaining the written approval of all Union Appointees and all City Appointees then in office. Despite the foregoing, decisions prior to the first in person meeting of the Board of Trustees (called pursuant to section 2.5(a)) may be made in accordance with this Section provided that all Trustees provide written approval. Written approval may be obtained by means of ex11ution and delivery of original counterparts or WE by means of executed counterparts delivered electronically in accordance with Section 7.3. Such decision shall be deemed to have been taken as of the date the last member approving the decision signs such approval. (n) In the event that a Trustee finds himself or herself in a position whereby he or she (or any person related to him or her within the meaning of the Income Tax Act) will personally benefit directly or indirectly from the Saint John SRP, excepting the provision of benefits under the Saint John SRP, the Trustee shall declare the nature and extent of such benefit immediately upon becoming aware of it, and shall not partake in any decisions affecting the matter. 2.6 FACILITATOR (a) At the first meeting of the Board of Trustees (called pursuant to Section 2.5(a)), the Trustees shall name a Facilitator by unanimous vote. The Facilitator shall not be a member of the Board of Trustees. In the event that the named Facilitator shall not be available should a matter be referred to him or her in accordance with Section 2.5(k), the Board of Trustees shall unanimously appoint an alternate Facilitator to deal with such matter in accordance with this Section 2.6 at such time. (b) The powers and duties of the Facilitator shall be to decide the matter that has been referred to him or her in accordance with Section 2.50). The Facilitator's decision shall be binding on the Board of Trustees. The Facilitator shall not be obliged to decide immediately a matter that is the subject of a tied vote, and may decide to reserve his or her decision or to carry the matter forward for further discussion at one or more subsequent meetings of the Board of Trustees. Following the decision, the Facilitator's appointment shall terminate. (c) If the matter is not resolved in accordance with Section 2.6(a) and 2.6(b) within the time prescribed by the Pension Benefits Act, then the Superintendent may determine the dispute resolution process to be followed and may appoint such person or persons as he or she considers necessary to resolve the dispute. (d) The Trustees may authorize the payment from the Fund to the Facilitator of an honorarium in such reasonable amount as the Trustees may from time to time determine, in addition to an amount equal to reasonable transportation expenses from the Facilitator's principal place of business or residence, plus an allowance for other reasonable out -of- pocket expenses for attending meetings of the Board of Trustees. 2.7 TRUSTEE EDUCATION The Trustees shall participate regularly in education programs, provided such programs are designed to enhance the knowledge base of the Trustee related to the administration and investment of the Saint John SRP and Fund. 12 -10- ARTICLE III TRUST AND TRUST FUND 3.1 CONFIRMATION OF TRUST The trust that was in existence on the conversion of the City of Saint John Pension Plan to the Saint John SRP as administered by the Pension Board is hereby confirmed to continue notwithstanding the replacement of the Pension Board by the Board of Trustees. 3.2 TRUST PROPERTY The Trustees are hereby confirmed to be vested with all right, title and interest in and to the Fund for the uses, purposes and duties set forth in this Agreement. The Trustees shall jointly hold the Fund and act in all matters on behalf of the Fund under the name of the "Trustees of the Saint John SRP Trust Fund ". 3.3 PURPOSE OF TRUST The Fund has been created and established and the Trustees agree to administer it for the purpose of providing retirement and related benefits for Members and their beneficiaries in accordance with the Saint John SRP, the Pension Benefits Act and the Funding Policy and for no other purpose. 3.4 APPLICATION OF THE TRUST FUND To effect the purpose of the Trust, the Board of Trustees shall have the power to use and apply the Fund in the manner set forth in this Agreement including as follows: (a) The Board shall cause the Fund to be invested and to be utilized for the payment of retirement and related benefits pursuant to the Saint John SRP. (b) The Board shall pay or provide for the payment of all reasonable and necessary expenses, costs and fees incurred by the Board of Trustees in connection with the maintenance of the Fund. All expenses of the Trustees shall be approved by the Trustees and shall be paid for by the Fund provided 1wch expenses are reawnabie Os determined by testees and are. incurredi as a result of attending, the admwist�ation apd int�estrn .. pf;th_ e �_� nt Jo1i S1 P acid t Fu_ tad. All expenses must be accompanied by a receipt. (c) The Board of Trustees shall pay or provide for the payment of all taxes or assessments of any kind levied or assessed under existing or future laws upon or in respect of the Fund or any money or property forming a part thereof. (d) The following limitations shall apply to the rights to, interests in, or use of, the Fund: i. No Trustee shall, except when acting as a Trustee and in concert with other Trustees as permitted hereunder, receive or otherwise have control 13 -11- over any of the monies or property which at any time form part of the Fund, except for reimbursements described in Section 2.4. ii. Neither the Unions, Employer, Members, nor any other person, association or corporation shall have any right, title or interest in or to the Fund. iii. Except as otherwise expressly provided herein, no part of the corpus or income of the Fund shall be used for or diverted to purposes other than the exclusive benefit of Members and their beneficiaries. iv. No money, property, equity, or interest of any nature whatsoever in the Fund or in any benefits or monies payable therefrom, shall be subject in any manner by any participant, or person claiming through a Member, to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, garnishment, lien or charge, and any attempt to cause the same to be subject thereto shall be null and void. V. The assets of the Fund shall be invested in accordance with the Investment Policy and shall be invested only in investments permissible under applicable laws. 3.5 BINDING EFFECT It is hereby agreed that this Agreement is binding upon the Unions, Employer, Members and Trustees. ARTICLE IV ADMINISTRATION 4.1 GENERAL POWERS AND DUTIES OF THE BOARD The responsibility for the administration and operation of the Fund and the Saint John SRP shall be vested in the Board of Trustees, and for such administration and operation the Board of Trustees shall, consistent with the purposes of the Fund, subject to the Pension Benefits Act and the Income Tax Act, have the power, duty and responsibility to: (a) Administer and operate the Fund and the Saint John SRP in accordance with the terms of this Agreement to ensure that the Fund is used for providing pension and related benefits to Members and beneficiaries. (b) Attend to: i. all measurements and reporting required by the Pension Benefits Act, including regular actuarial valuations and stochastic modelling of the assets and liabilities of the Saint John SRP; 14 -12- ii. administering and investing the Saint John SRP, in accordance with the Pension Benefits Act, the Investment Policy and the Funding Policy. For greater clarity, this includes the power to increase or decrease contributions and benefits in accordance with the Funding Policy; and iii. all other requirements of an administrator under the Pension Benefits Act. (c) Enact rules and regulations relating to the administration of the Saint John SRP to carry out the terms hereof and may amend such rules and regulations from time to time. Such rules and regulations shall not conflict with any provision of the Saint John SRP, the Pension Benefits Act or the Income Tax Act. (d) Construe the provisions of this Agreement, the Funding Policy and the Saint John SRP and the terms used therein, and any reasonable construction or interpretation adopted by the Board of Trustees shall be binding and conclusive on all persons affected thereby. (e) Except as otherwise provided in the Saint John SRP, and notwithstanding the generality of the foregoing, have the following powers: L to enter into any and all contracts and agreements, either with private individuals, corporations, or with any government department or agency, which can, directly or indirectly, assist in the purposes of carrying out the terms of the Saint John SRP; ii. to authorize persons to invest, reinvest and divest the monies of the Fund; however, notwithstanding the generality of the foregoing, the Board of Trustees may direct investment counsellors as to the particular nature and type of investment that, in the absolute discretion of the Board of Trustees, meets the objectives of the Fund; iii. to collect, compromise, settle, submit to arbitration and release claims or demands in favour of or against the Fund on such terms and conditions as the Trustees may deem advisable; iv. in accordance with the Funding Policy, to establish and accumulate as part of the Fund a reserve; V. to pay out of the Fund all real and personal property taxes, income taxes and any other taxes of any kind levied or assessed upon the Fund or the Trustees (acting in their capacity as Trustees); vi. to pay from the Fund all reasonable and necessary expenses, costs and fees in connection with the collection of contributions; vii. to pay from the Fund such monies as required to hire on a permanent basis or contract basis, or on a fee for service basis such administrators, investment managers, actuaries, legal counsel, accountants, medical experts, pre - retirement exwts, clerical assistants and such other experts -13- as the Trustees may, in their absolute discretion determine, notwithstanding that such professional personnel or other personnel may have been in the past or presently employed by any Party and to monitor the performance of all of the above; viii. to receive and co- mingle all contributions and monies received by them; ix. to authorize borrowings at a chartered bank, trust company or credit union, when necessary for the effective operation of the Fund, subject to the Income Tax Act and the Pension Benefats Act, provided that: (1) any borrowing shall not exceed a term of 90 days, be a part of series of loans or other transactions or repayments and none of the property of the Saint John SRP may be held as security for the borrowed money except where the borrowing is necessary to provide funds for the current payment of benefits or the purchase of annuities under the Saint John SRP without resort to a distressed sale of property of the Saint John SRP; or (2) where the money is borrowed for the purpose of acquiring real property that may reasonably be considered to be acquired for the purpose of producing income from property, the aggregate of all amounts borrowed for the purpose of acquiring the property and any indebtedness incurred as a consequence of the acquisition of the property shall not exceed the cost to the property, and no property of the Saint John SRP, other than the real property being acquired, shall be used as security for the borrowed money; X. to obtain from the Employer such information as may be deemed necessary for the proper administration of the Saint John SRP and Fund; and xi. to the extent not hereinbefore enumerated, all powers under the Trustees Act. (f) In addition to such other powers as are set forth herein or conferred by law, to do all acts whether or not expressly authorized herein which the Board of Trustees may deem necessary or proper for the administration, investment and operation of the Saint John SRP and the Fund held hereunder, subject to the Income Tax Act and the Pension Benefits Act. 4.2 APPOINTMENT OF AGENTS AND DELEGATION OF POWERS (a) The Board of Trustees may appoint one or more agents to carry out any act or transaction required for the administration, investment and management of the Saint John SRP and Fund (including, without limitation, a Funding Agency) or 16 -14- may retain advisors. Every agent appointed by the Board of Trustees shall report to and be subject to the direction and continuing supervision of the Board of Trustees. (b) The Board of Trustees may, in its discretion, delegate to committees of the Board of Trustees such functions as, in the judgment of the Board of Trustees, may appropriately be performed by such committees. (c) The Board of Trustees shall be entitled to rely upon all statements and reports furnished by the Actuary, an accountant, an appraiser, a lawyer or other professional advisor retained by the Board of Trustees. 4.3 BOOKS AND RECORDS, EXECUTION OF INSTRUMENTS (a) The Trustees shall keep true and accurate books of account and records of all their transactions, meetings and any action taken at such meetings or by informal action of the Trustees and such other data as may be necessary for the proper administration of the Saint John SRP and Fund. (b) The books, accounts and records shall be audited annually or more often by an independent professionally designated accountant as selected by the Trustees. Copies of such audit shall be available at all times upon reasonable notice for inspection by representatives of the Parties and to Members at the principal office of the Fund. (c) The Trustees shall prepare, execute, file and retain records of all reports required by law or deemed by them to be necessary or appropriate for the proper administration of the Saint John SRP and Fund. The Trustees shall also maintain on a current basis all information necessary for the actuarial studies required to be made from time to time in connection with the Saint John SRP and Fund. (d) The Trustees shall furnish to Members all information required to be disclosed pursuant to the Pension Benefits Act and Saint John SRP. Ke). The Boat .d of 'I rustees shall provide an wmtW rep rt to the Employer, the Unions gnd the Members in acco dance with the requtrerrtents of the Pension Benefits AN-It: - (f) Unless specifically authorized, all notices or other written instruments, signed on behalf of the Trustees, shall be signed by not fewer than two (2) Trustees, one of whom shall be a Union Appointee and the other shall be a City Appointee. The Trustees may also specifically authorize a Trustee, the Actuary or other agent, to execute a notice or instrument in writing on behalf of the Trustees. (g) Unless specifically authorized, all conveyances, mortgages, discharges of mortgage, assignments of mortgages, transfers of stocks, debentures, bonds and other securities, agreements and other documents relating to the Saint John SRP, the Fund or to any investment thereof required to be executed by the Trustees shall be signed by not fewer that #wo (2) Trustees, one (1) of whom shall be a -15- Union Appointee and one (1) of whom shall be a City Appointee. The Trustees may also specifically authorize such documents to be executed on behalf of the Trustees by such persons or corporations or in any other such manner as the Trustees may from time to time provide. (h) The name of the Fund may be used to designate the Trustees collectively and all instruments may be executed by or for the Trustees as provided hereunder in such name. (i) All monies received by the Trustees shall be deposited by them in an account maintained in one or more Canadian chartered banks, trust companies or credit unions as the Trustees may designate for that purpose. All accounts shall be drawn upon only by cheques signed by the Trustees who are, from time to time, authorized in writing by resolution of the Trustees to sign such cheques. No cheques signed by the Trustees shall be valid unless signed by two (2) Trustees, one (1) signature from a Union Appointee and one (1) signature from a City Appointee. Notwithstanding the foregoing, the Trustees may, in their absolute discretion, specifically authorize such other persons as the Trustees deem necessary, to sign cheques on behalf of the Trustees and to deal with banks, trust companies, or credit unions on behalf of the Trustees. (j) All reasonable expenses incurred with respect to training and education of Trustees referred to in Section 2.7 both inside and outside of the Province of New Brunswick shall be borne by the Fund. (k) The Trustees and any appointees of the Trustees who are empowered and authorized to sign cheques as outlined above, shall be bonded by a surety company in such amounts as may be determined by the Trustees. The cost of the bonds shall be paid by the Fund. ARTICLE V MODIFICATION AND AMENDMENT 5.1 PERMITTED MODIFICATIONS This Agreement may be modified or amended in any respect from time to time by the Board of Trustees, in such manner as the Board of Trustees deems advisable in carrying out the purposes of this Agreement and the Saint John SRP, subject to the restrictions set forth in Section 5.4. 5.2 METHOD OF MODIFICATION Any proposed modifications of this Agreement shall be submitted in writing to each member of the Board of Trustees not less than ten (10) days before the date of the meeting at which the modification will be considered. Modifications shall be approved in accordance with Section 2.5. iiE:? -16- 5.3 NOTIFICATION TO UNIONS AND EMPLOYER The Board of Trustees shall furnish to the Unions and the Employer a copy of each modification of this Agreement not later than thirty (30) days after the end of the calendar year in which such modification is made. 5.4 PROHIBITED MODIFICATIONS Despite anything in this Agreement to the contrary, no modification of this Agreement may be made which would: (a) divert the Fund to a purpose other than as set forth herein; (b) provide any compensation from the Fund for any member of the Board of Trustees; (c) be inconsistent with the Pension Benefits Act, the Income Tax Act, Saint John SRP or the Funding Policy; or (d) amend the constitution of the Board of Trustees such that there is an unequal number of City Appointees and Union Appointees. ARTICLE VI TERMINATION OF TRUST 6.1 TERMINATION OF TRUST This Agreement and the Trust shall remain in effect until terminated by action of the Employer and the Unions. In the event of termination, the Board of Trustees shall: (a) Make provision out of the Fund for the payment of expenses incurred up to the date of termination of the Trust and the expenses incident to such termination. (b) Provide for distribution of the assets of the Fund in accordance with the terms of the Saint John SRP. (c) Arrange for a final audit and report of its transactions and accounts, for the purpose of terminating its trusteeship. (d) Arrange for a final audit and report from the Funding Agency. ARTICLE VII MISCELLANEOUS 7.1 LIMITATION OF LIABILITY (a) Neither the Board of Trustees nor any Trustee shall be liable for any error of judgment or for any loss arising iu of any act or omission in the administration -17- or investment of the Fund, including, without limitation, with respect to any of the following: i. liability or debt of the Fund that they contract or incur; ii. the non - fulfillment of any contract; iii. the improper application of any part of the Fund; or iv. any other liability arising in connection with the administration of the Fund. (b) Notwithstanding the generality of subsection 7.1(a) above, nothing shall exempt any Trustee from liability arising out of his or her own wilful misconduct, bad faith or negligence, or entitle such Trustee to indemnification for any amounts paid or incurred as a result thereof, including the costs of litigation. (c) The Trustees, any individual or successor Trustee shall have in their favour a first lien and charge against the Fund for his, her or their security and indemnification against any liability of any kind which the Trustees or any of them incur, including the costs of defence of litigation on a solicitor client basis. (d) The Trustees and each individual Trustee shall not be liable for any error of judgment or loss arising out of any act or omission in the execution of their duties so long as they; she or he acts in good faith and without negligence, nor shall any Trustee, in the absence of his or her own wilful misconduct, bad faith or negligence, be personally liable for the acts or omissions of himself, herself or any other Trustee or any agent or attorney of the Trustee or Trustees. (e) No Trustee shall be liable or responsible for any act or default of any other Trustee whether acting singly or jointly unless such Trustee acted in collusion with such other Trustee in a wilful or negligent manner, or for any losses or expenses resulting from or occasioned by anything done or neglected to be done in the administration of the Trust Fund prior to his or her becoming a Trustee. (f) The Trustees shall be fully protected in acting upon any instrument, application, notice, request, certificate, or paper believed by them to be genuine and to be signed or presented by the proper person or persons and shall be under no duty to make any investigation or inquiry as to any statement contained in any writing but may accept the same as conclusive evidence of the truth and accuracy of the statements therein contained. (g) The Fund shall indemnify and save harmless the Trustees and each of them, their heirs, executors, administrators, estate trustees and other personal representatives of, from and against any loss, expense, claim, demand, action or thing of any nature whatsoever, arising out of the performance or purported performance of their duties or responsibilities hereunder, except that this indemnity shall not in any way extend so as to protect any Trustee with respect to any matter or thing arising out of his or her own bream of any duty or responsibility imposed by the -18- Agreement or the Pension Benefits Act unless in any action brought against such Trustee in his or her capacity as Trustee he or she has achieved complete or substantial success as a defendant. (h) The Employer and the Unions (including their respective employees, directors, officers and agents) shall not be liable with respect to any acts, omissions or obligations of the Fund, or of any Trustees, individually or collectively. The Fund shall bear sole liability for the actions of the Trustees as outlined herein and the Fund shall indemnify the Employer and the Unions (including their respective employees, directors, officers and agents) for any and all liability, which may be found against them by any court of competent jurisdiction. (i) The Trustees may insure the Trustees by purchasing such errors and omissions insurance and such fiduciary Iiability insurance as they deem necessary. The Trustees may also insure the property of the Fund against loss (whether due to fire or other causes) by purchasing such insurance as they deem necessary. All insurance premiums shall be paid out of the Fund. 7.2 DEALINGS WITH THE BOARD OF TRUSTEES No person. partnership, corporation or association dealing with the Board of Trustees shall be obliged to see that the terms of this Agreement have been complied with, or be obliged to inquire into the necessity or expedience of any act of the Board of Trustees. Every instrument effected by the Board of Trustees, whether executed by all the members or in the manner specified in section 2.5(k), shall be conclusive in favour of any person, partnership, corporation or association relying thereon that: (a) At the time of delivery of said instrument, this Agreement was in full force and effect, and (b) Said instrument was effected in accordance with the terms and conditions of this Agreement, and (c) The Board was duly authorized and empowered to execute such instrument. 7.3 NOTICES Notice given to a Trustee, Party or any other person shall, unless specified herein, be sufficient if in writing and delivered or sent by post paid first class mail or prepaid telegram to the last address as filed with the Board of Trustees or sent by any means of prepaid transmitted or recorded communication or provided as an electronic document to the last electronic address as filed with the Board of Trustees provided an electronic notice of receipt is received by the sender. Except as herein otherwise provided, the delivery of any statement or document required hereunder to be made to a Trustee or Party shall be sufficient if delivered in person or if sent by post paid first class mail to the last address as filed with the Board of Trustees or if sent by any means of transmitted or recorded communication or provided as an electronic document when dispatched by the sender's own facilities or information system or when otherwise delivered to the 21 -19- appropriate communication company or agency for such dispatch. Notices delivered shall be deemed to have been received on the fifth (5"') day after deposit in a post office or public letter box. Notices sent by any means of transmitted or recorded communication or provided as an electronic document shall be deemed to have been received on the business day on which electronic notice of receipt of notice is received by the sender, or on the next business day if received on a day other than a business day. 7.4 DISCRETION OF THE BOARD OF TRUSTEES Any questions arising in connection with the discharge of this Agreement not .herein specifically provided for shall be left to the sole discretion of the Board of Trustees and its independent judgment and acting upon such advice as to it seems necessary or proper. 7.5 ADVICE OF COUNSEL The Board of Trustees may, when necessary, employ legal counsel upon a legal question arising out of the administration of this Agreement, and shall be held completely harmless and fully protected in acting and relying upon the advice of such counsel. 7.6 COSTS OF SUIT The costs and expenses of any action, suit, or proceeding brought by or against the Board of Trustees or any Trustee (including counsel fees) shall be paid from the Fund, except in relation to matters as to which it shall be adjudged in such action, suit, or proceeding that the Board of Trustees or Trustee was acting in bad faith or was negligent in the performance of their duties hereunder. 7.7 INVALIDITY If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, its invalidity or unenforceability shall not affect any other provision of this Agreement and the Agreement shall be construed and enforced as if such provision had not been included therein. 7.8 SITUS AND CONSTRUCTION OF TRUST This Trust is accepted by the Trustees in the Province of New Brunswick and all questions pertaining to its validity, construction and administration shall be determined in accordance with the laws of the Province of New Brunswick and the laws of Canada applicable therein. 7.9 INTERIM GOVERNANCE Until such time as the Saint John SRP plan text and other constating documents are finalized, the Board of Trustees shall administer the Saint John SRP in accordance with the terms of the MOU. 22 -20- IN WITNESS WHEREOF the Parties and the Trustees have affixed their signatures. CITY OF SAINT JOHN Per: Name: Title: Date: SAINT JOHN FIRE FIGHTERS ASSOCIATION, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL 771 Per: Name: Paul Stackhouse Title: President Date: 23 SAINT JOHN POLICE ASSOCIATION Per: Name: Jamie Hachey Title: President Date: CUPE LOCAL 18, SAINT JOHN CITY OUTSIDE WORKERS Per: Name: Michael Meahan Title: President Date: CUPE LOCAL 486 Per: Name: Paul Johnson Title: President Date: -21- 24 -22- Jamie Hachey, Trustee Witness Paul Stackhouse, Trustee Witness Cathy Craig, Trustee Witness Alan Lock, Trustee Witness Date Date Date Date Ian Polley, Trustee Date Witness John de Gruyter, Trustee Witness Michael Meahan, Trustee Witness Bill Buckley, Trustee Witness 16159395,5 11 -2139 25 Date Date Date SCHEDULE A ACCEPTANCE OF TRUSTEESHIP THE UNDERSIGNED having been appointed to serve as a Trustee in accordance with the Agreement and Declaration of Trust dated as of the 1st day of February, 2013, relating to the Saint John SRP does hereby accept the trusts confirmed by the aforesaid Agreement and Declaration of Trust, consent to act as a Trustee thereunder and agree to administer the Saint John SRP Trust Fund and the Saint John SRP in accordance with the terms thereof Dated at this day of Witness: 26 Name: Party Saint John Police Association Saint John Fire Fighters Association, international Association of Fire Fighters, Local 771 City of Saint John City of Saint John City of Saint John CUPE 486 CUPE 18 16159395.8 -2- SCHEDULE B ALTERNATE TRUSTEES Name of Alternate Trustee Andrew Belyea Frederick Slipp Cheryl Nolan Michael Duncan Eric Savoie Paul Johnson Jim Thibodeau 27