TR-2012-38 RES. ADOPTING M.G.L. CH 32N S20 k,s ctaoPhns
�L Cal
AMENDED TOR-2012-02
NOW TITLED
TR-2012-38
A RESOLUTION ADOPTING MASSACHUSETTS GENERAL LAWS, CHAPTER 32B,
SECTION 20.
(Sponsored By: Mayor Richard A. Cohen)
WHEREAS, the Town of Agawam has established certain Other Post Employment
Benefits (OPEB), other than pensions, for eligible former employees of the Town of Agawam;
and
WHEREAS, by adopting M.G.L. c.3213 s. 20 the 'Ibwn of Agawam can create an
Irrevocable Trust for the purposes of funding OPEB as required to be reported under the General
Accounting Standards Board Statements 43 and 45; and
WHEREAS, it is recommended that the Town adopt M.G.L. c. 32B s. 20 in order to
provide sufficient funds to meet future obligations of the Town of Agawam; and
WHEREAS, it is in the best interests of the Town of Agawam to adopt a M.G.L. c.32B s.
20;
NOW THEREFORE, THE AGAWAM CITY COUNCIL hereby resolves to accept
Massachusetts General Laws Chapter 32B, Section 20, which authorizes the Town to establish an
Other Post Employment Benefits Liability Trust Fund to reduce the unfunded liability of health
care and other post employment benefits to meet the normal cost of all such future benefits for
which the Town of Agawam is obligated and to authorize the Mayor to establish an Irrevocable
Trust for this purpose.
DATED THIS OF 2012.
PER ORDER OF THE AGAWAM CITY COUNCIL
o c C cle-r�
Christopher C. Johnsou, President (Inuic )
ArPROVED TO FORM AND LEGALITY
TO FOR I
'Vincent Gi��a, Solicitor Sisal
'VW 'WVMV9V
]JUJO %8110 �13NAOJ
TOR-2012-02
AN ORDINANCE ADOPTING MASSACHUSETTS GENERAL LAWS, CHAPTER 32B,
SECTION 20.
(Sponsored By: Mayor Richard A. Cohen)
WHEREAS, the Town of Agawam has established certain Other Post Employment
Benefits (OPEB), other than pensions, for eligible former employees of the Town of Agawam;
and
WHEREAS, by adopting M.G.L. c.3213 s. 20 the Town of Agawam can create an
Irrevocable Trust for the purposes of funding OPEB as required to be reported under the General
Accounting Standards Board Statements 43 and 45; and
WHEREAS, it is recommended that the Town adopt M.G.L. c. 32B s, 20 in order to
provide sufficient funds to meet future obligations of the Town of Agawam; and
WHEREAS, it is in the best interests of the Town of Agawam to adopt a M.G.L. c.32B s.
20;
NOW THEREFORE, THE AGAWAM CITY COUNCIL hereby resolves to accept
Massachusetts General Laws Chapter 32B, Section 20, which authorizes the Town to establish an
Other Post Employment Benefits Liability Trust Fund to reduce the unfunded liability of health
care and other post employment benefits to meet the normal cost of all such future benefits for
which the Town of Agawam is obligated and to authorize the Mayor to establish an Irrevocable
Trust for this purpose.
DATED THIS OF 2012.
PER ORDER OF T14E AGAWAM CITY COUNCIL
Christopher C. Jo son, President
AP R VJED (O FORM AND LEGALITY
'�incentvGjo�&-, Solicitor
acarcri - i Kesult- a. Other Post Employment Benefits Liability Trust Fund. Page I of 2
ALM GL ch. 32B, § 20
ANNOTATED LAWS OF MASSACHUSETTS
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Current through Act 107 of the 2012 Legislative Session
PART I ADMINISTRATION OF THE GOVERNMENT
TITLE IV CIVIL SERVICE, RETIREMENT AND PENSIONS
Chapter 32B Contributory Group General or Blanket Insurance for Persons in the Service of
Counties, Cities, Towns and Districts, and Their Dependents
GO TO MASSACHUSETTS CODIE ARCHIVE DIRECTORY
ALM GL ch. 32B, § 20 (2012)
§ 20. Other Post Employment Benefits Liability Trust Fund.
(a) A city, town, district, county or municipal lighting plant that accepts this section may
establish an Other Post-Employment Benefits Liability Trust Fund, and may appropriate
amounts to be credited to the fund. Any interest or other income generated by the fund shall be
added to and become part of the fund. Amounts that a governmental unit receives as a sponsor
of a qualified retiree prescription drug plan under 42 U.S.C. section 1395w-132 may be added
to and become part of the fund. All monies held in the fund shall be segregated from other
funds and shall not be subject to the claims of any general creditor of the city, town, district,
county or municipal lighting plant.
(b) The custodian of the fund shall be (i) a designee appointed by the board of a municipal
lighting plant; (ii) the treasurer of any other governmental unit-, or (N) if designated by the
city, town, district, county or municipal lighting plant in the same manner as acceptance
prescribed in this section, the Health Care Security Trust board of trustees established in
section 4 of chapter 29D, provided that the board of trustees accepts the designation. The
custodian may employ an outside custodial service to hold the monies in the fund. Monies in the
fund shall be invested and reinvested by the custodian consistent with the prudent investor rule
established in chapter 203C and may, with the approval of the Health Care Security Trust board
of trustees, be invested in the State Retiree Benefits Trust Fund established in section 24 of
chapter 32A.
(c) This section may be accepted in a city having a Plan D or Plan E charter, by vote of the city
council; in any other city, by vote of the city council and approval of the mayor; in a town, by
vote of the town at a town meeting, in a district, by vote of the governing board; In a municipal
lighting plant, by vote of the board; and in a county, by vote of the county commissioners.
(d) Every city, town, district, county and municipal lighting plant shall annually submit to the
public employee retirement administration commission, on or before December 31, a summary
of Its other post-employment benefits.cost and obligations and ail related information required
under Government Accounting Standards Board standard 45, in this subsection called `GASB
45", covering the last fiscal or calendar year for which this information is available. On or before
June 30 of the following year, the public employee retirement administration commission shall
notify any entity submitting this summary of any concerns that the commission may have or
any areas in which the summary does not conform to the requirements of GASB 45 or other
standards that the commission may establish. The public employee retirement administration
commission shall file a summary report of the information received under this subsection with
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�iearch - I Result- § 20. Other Post Employment Benefits Liability Trust Fund. Page 2 of 2
the chairs of the house and senate committees on ways and means, the secretary of
administration and finance and the board of trustees of the Health Care Security Trust,
HISTORY: 2008, 479; 2011, 68, § 57.
NOTES: Editorial Note
Acts 2008, 479, effective Jan 10, 2009, enacted this section.
The 2011 amendment, effective July 1, 2011, rewrote this section. Sections 206 and 221
provide:
Section 206. Nothing in section 20 of chapter 32B of the General Laws shall affect the validity of
any action taken before July 1, 2011 by a city or town that authorizes the contributory
retirement system of which the employees of that city or town are members to be the custodian
of an Other Post-Employment Benefits Liability Trust Fund.
Section 221. Except as otherwise specified, this act shall take effect on July 1, 2011.
HIERARCHY NOTES:
Pt. 1, Tit. TV, Ch. 32B Note
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Rules > MA- Annotated Laws of Massachusetts j
View: Full
Date/Time: Friday, June 8, 2012 - 10:15 AM EDT
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TOWN OF AGAWAM
OTHER POST-EMPLOYMENT BENEFITS ("OPEB") TRUST
TRUST AGREEMENT
TRUSTAGREEMENT made this _ day of 2012 by and between
the Town of Agawam, acting through its Mayor (the "Town") and the duly serving
members of the Board of Trustees (the "Trustees").
WITNESSETH:
WHEREAS, the Town has established certain other post employment benefits
("OPEB"), other than pensions, for eligible former employees of the Town; and
WHEREAS, the Town wishes to establish an irrevocable trust (hereinafter the
"Trust") for the purpose of funding OPEB obligations as required to be reported under
General Accounting Standards Board ("GASB") Statements 43 and 45; and
WHEREAS, the Trust is established by the Town with the intention that it qualify
as a tax-exempt trust performing an essential governmental function within the meaning
of Section 115 of the Code and Regulations issued thereunder and as a trust for OPEB
under G.L. c.32B, §20.
NOW, THEREFORE, in consideration of the foregoing promises and the mutual
covenants hereinafter set forth, Town and the Trustee hereby agree as follows.
ARTICLE I
DEFrNITIONS
As used herein, the following terms shall have the following meanings:
1.1. "Code"means the Internal Revenue Code of 1986, as amended from time to time,
1.2. "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time and any successor statute.
1.3. "GASB 43 and 45," shall mean Government Accounting Standards Board,
Statement No. 43 and Statement No. 45, Accounting and Financial Reporting by
Employers for Post-Employment Benefits Other Than Pensions.
1.4. "Other post-employment benefits" or "OPEB," shall mean post-employment
benefits other than pensions as that term is defined in GASB 43 and 45 including post-
employment healthcare benefits, regardless of the type of plan that provides them, and all
post-employment benefits provided separately from a pension plan, excluding benefits
defined as termination offers and benefits.
1.5. "Retired Employee" means those persons who have retired from employment
with the Town and who are qualified to receive retirement benefits pursuant to G.L. c.32
or as otherwise provided by law.
1.6. "Trust" means the Agawam OPEB Trust as hereby established.
1.7. "Trustee" means the duly serving members of the Board of Trustees, and any
successor Trustee appointed as provided pursuant to Article 5.
1.9. "Trust Fund" means all the money and property, of every kind and character,
including principal and income, held by the Trustee under the Trust.
1.10 "Town" means the Town of Agawam,
ARTICLE 2
PURPOSE
2.1. The Trust I's created for the sole purpose of providing funding for OPEB, as
determined by the Town, or as may be required by collective bargaining agreement, or by
any general or special law providing for such benefits, for the exclusive benefit of the
Town's Retired Employees and their eligible dependents and for defraying the reasonable
administrative, legal, actuarial and other expenses of the Trust. The assets held in the
Trust shall not be used for or diverted to any other purpose, except as expressly provided
herein.
2.2. It is intended that the Trust shall constitute a so called "Qualified OPEB Trust"
according to the standards set forth in GASB 43 and 45 and that it further qualify as a
Integral Part Trust for all purposes under Article 115(c) of the Code or under any
comparable provision of future legislation that amends, alters, or supersedes the Code.
ARTICLE 3
ESTABLISHMENT OF TRUST
3.1. In order to implement and carry out the provisions of G.L. c.32B, §20, the Town
hereby establishes this Trust which shall be known as the "Town of Agawam OPEB
Trust."
3.2. The Trust shall be irrevocable, and no Trust funds shall revert to the Town until
all OPEB owed to retired Town employees have been satisfied or defeased.
3.3. The principal location of the Trust shall be Agawam Town Hall, 36 Main Street,
Agawam, Massachusetts 0 100 1, and Attn. Town Treasurer.
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3.4. The Trustees hereby accept the trusts imposed upon them by this Trust Agreement
and agree to perform said trusts as a fiduciary duty in accordance with the terms and
conditions of this Trust Agreement.
3.5. The Trustees shall hold legal title to all property of the Trust and neither the
Town, nor any employee, official, or agent of the Town, nor any individual, shall have
any right title or interest to the Trust.
3.6. The Trust shall consist of such sums of money as shall from time to time be paid
or delivered to the Trustees by the Town, which together with all earnings, profits,
increments and accruals thereon, without distinction between principal and income, shall
constitute the Trust hereby created and established. Nothing in this Agreement requires
the Town to make contributions to the Trust to fund OPEB. Any obligation of the Town
to pay or fund benefits shall be determined in accordance with applicable law and any
agreement to provide OPEB.
ARTICLE 4
TRUST FUNDING
4.1. The Trust Fund shall be credited with all amounts appropriated or otherwise made
available by the Town and employees of the Town as a contribution to the Trust for the
purposes of meeting the current and future OPEB costs payable by the Town, or any
other funds donated or granted specifically to the Town for the Trust, or to the Trust
directly.
4.2. The Trustees shall be accountable for all delivered contributions but shall have no
duty to deter-mine that the amounts received are adequate to provide the OPEB Benefits
determined by the Town.
4.3. The Trustees shall have no duty, expressed or implied, to compel any contribution
to be made by the Town, but shall be responsible only for property received by the
Trustees under this Trust Agreement.
4.4 The Town shall have no obligation to make contributions to the Trust to fund
OPEB, and the size of the Trust may not be sufficient at any one time to meet the Town's
OPEB liabilities. This Trust Agreement shall not constitute a pledge of the Town's full
faith and credit or taxing power for the purpose of paying OPEB, and no retiree or
beneficiary may compel the exercise of taxing power by the Town for such purposes.
The obligation of the Town to pay or fund OPEB obligations, if any, shall be determined
by the Town or applicable law. Distributions of assets in the Trust are not debts of the
Town within the meaning of any constitutional or statutory limitation or restriction.
4.4. Earnings or interest accruing from investment of the Trust shall be credited to the
Trust. Amounts in the Trust Fund, including earnings or interest, shall be held for the
exclusive purpose of, and shall be expended only for, the payment of the costs payable by
the Town for OPEB obligations to Retired Employees and their dependents, and
3
defraying the reasonable expenses of administering any plan providing OPEB Benefits as
provided for in this Trust Agreement.
4.6. Amounts in the Trust Fund shall in no event be subject to the claims of the
Town's general creditors. The Trust Fund shall not in any way be liable to attachment,
garnishment, assignment or other process, or be seized, taken, appropriated or applied by
any legal or equitable process, to pay any debt or liability of the Town, or of retirees or
dependents who are entitled to OPEB.
ARTICLE 5
TRUSTEES
5.1. The Trust shall,be administered by a Trustee, who shall be the Town Treasurer,
Upon the expiration of the term or sooner resignation or removal of the Town Treasurer
the position of Trustee shall be deemed vacant.
5.2 The Mayor shall appoint a temporary Trustee while the position of Town
Treasurer is being filled.
5.3. Whenever a change occurs in the Trustee, the legal title to property held by this
Trust shall automatically pass to those duly appointed successor Trustees.
5.4. Each future Trustee shall accept the office of Trustee and the terms and conditions
of this Trust Agreement in writing.
5.5 Upon leaving office, a Trustee shall promptly and without unreasonable delay,
deliver to the Trust's principal office any and all records, documents, or other documents
in his possession or under his control belonging to the Trust.
5.6 The Trustee shall be subject to G.L. c.268A and shall be subject to the restrictions
and prohibitions set forth therein.
ARTICLE 6
POWERS OF THE TRUSTEES
6.1. The Trustees shall have the power to control and manage the Trust and the Trust
Fund and to perform such acts, enter into,such contracts, engage in such proceedings, and
generally to exercise any and all rights and privileges, although not specifically
mentioned herein, as the Trustees may deem necessary or advisable to administer the
Trust and the Trust Fund or to carry out the purposes of this Trust, In addition to the
powers set forth elsewhere in this Agreement, the powers of the Trustees, in connection
with their managing and controlling the Trust and its General Fund, shall include, but
shall not be limited to, the following:
6.1.1. To enter into an administrative services contrAct or other contracts with
one or more insurance companies, nonprofit hospital, medical or dental service
4
corporations, or with one or more health care organizations Or health maintenance
organizations, or with one or more third-party administrators or other entities to
organize, arrange, or provide for the delivery or payment of health care coverage
or services (including dental services), whereby the funds for the payment of
claims of eligible persons, including appropriate service charges of the insurance
carrier, third party administrator or other intermediary, shall be furnished by the
Trustees from the Trust Fund for the payment by such intermediary to the health
care vendors or persons entitled to such payments in accordance with the terms
Ld provisions of said contract.
6.1.2. To purchase contracts of insurance or reinsurance through such broker or
brokers as the Trustees may choose and to pay premiums on such policies.
6.1-3. To receive, hold, manage, invest and reinvest all monies which at any time
form part of the Trust, whether principal or income, provided however that there
shall be no investment directly in mortgages or in collateral loans and further
provided that the Trustees shall comply with the provisions of Article 7 of this
Trust Agreement, applicable law and any investment policy adopted by the
Trustees concerning the investment and management of Trust assets.
6.1.4. To borrow or raise money for the purposes of the Trust, in such amount,
and upon such terms and conditions as the Trustees shall deem advisable, subject
to applicable law and statutes; and for any sum so borrowed to issue the
promissory note of the Trust, and to secure the repayment thereof by creating a
security interest in all or any part of the Trust or the Trust Fund; and no person
lending such money shall be obligated to see that the money tent is applied to
Trust purposes or to inquire into the validity, expedience or propriety of any such
borrowing.
6.1.5. To hold cash, uninvested, for such length of time as the Trustees may
determine without liability for interest thereon.
6.1.6. To employ suitable agents, advisors and counsel as the Trustees may deem
necessary and advisable for the efficient operation and administration of the Trust,
to delegate duties and powers hereunder to such agents, advisors and counsel, and
to charge the expense thereof to the Trust. The Trustees are entitled to rely upon
and may act upon the opinion or advice of any attorney approved by the Trustees
in the exercise of reasonable care. The Trustees shall not be responsible for any
loss or damage resulting from any action or non-action made in good faith
reliance upon such opinion or advice, All delegated authority shall be specifically
defined in any by-laws adopted by the Trustees or the written minutes of the
Trustees' meetings.
6.1.7. To hire employees or independent contractors as the Trustees may deem
necessary or advisable to render the services required and permitted for the proper
operation of the Trust, and to charge the expense thereof to the Trust.
5
6.1.8. To continue to have and to exercise, after the termination of the Trust and
until final distribution, all of the title, powers, discretions, rights and duties
conferred or imposed upon the Trustees hereunder, by any by-laws adopted by the
Trustees or by law.
6.1.9. To construe and interpret this Trust Agreement and other documents
related to the purposes of the Trust.
6.LI 0. To maintain bank accounts for the administration of the Trust and the
Trustee Fund and to authorize certain Trustees or other appropriate persons to
make payments from any appropriate account for purposes of the Trust.
6.1.11. To receive and review reports of the financial condition and of the receipts
and disbursements of the Trust and the Trust Fund.
6.1.12. To adopt by-laws, rules, regulations, formulas, actuarial tables, forms, and
procedures by resolution from time to time as they deem advisable and
appropriate for the proper administration of the Trust, including participation
criteria, provided the same are consistent with the terms of this Trust Agreement.
6.1.13. To purchase as a general administrative expense of the Trust so-called
director's liability insurance and other insurance for the benefit of the Trust and/or
the protection of the Trustees, Trust officers, employees, or agents against any
losses by reason of errors or omissions or breach of fiduciary duty or negligence.
6.1.14. To enter into any and all contracts and agreements for carrying out the
terms of this Trust Agreement and for the administration and operation of the
Trust and to do all acts as they, in their discretion, may deem necessary or
advisable. Except as other-wise directed by the Trustees, all such contracts and
agreements, or other legal documents herein authorized, shall be executed by the
Chairperson, or Secretary as may be voted by the Trustees.
6.1.15. To receive contributions or payments from any source whatsoever but
such contributions or payments may not be utilized for any purpose unrelated to
the provision of OPEB as herein provided or properly authorized expenses.
6.1.16. To pay taxes, assessments, and other expenses incurred in the collection,
care., administration, and protection of the Trust,
6.1.17. To do all acts, whether or not expressly authorized herein, which the
Trustees may deem necessary or proper in connection with the administration of
the Trust, although the power to do such acts is not specifically set forth herein.
6.1.18. To compromise, settle or arbitrate any claim, debt, or obligation of or
against the Trust or Trust Fund; to enforce or abstain from enforcing any right,
6
claim, debt or obligation, and to abandon any shares of stock, bonds, or other
securities, or interests determined by it to be worthless; to prosecute, compromise
and defend lawsuits, but without the obligation to do so, all at the risk and
expense of the Trust;
6.1.19. To hire one or more consultants, actuaries, accountants, attorneys or other
professionals to assist with the administration of the Trust Fund and to pay such
amounts that the Trustee deems to be reasonable, including, without limiting the
generality of the foregoing, third party firms to provide legal, tax, accounting and
audit services to the Trust.
6.1.20. To comply with all requirements imposed by applicable provisions of law.
6.1.21. To serve as custodian with respect to Trust assets.
ARTICLE 7
LIMITATION OF TRUSTEES' POWERS, DUTIES AND RESPONSIBILITIES
7.1. Nothing contained in the Trust Agreement, either expressly or-by implication,
shall be deemed to impose any powers, duties or responsibilities on the Trustees other
than those set forth in this Trust Agreement.
7.2. The Trustees shall have such rights, powers and duties as are provided to a named
fiduciary for the investment of assets under ERISA. The Trustees shall not be liable for
the making, retention or sale of any investment or reinvestment made by the Trustees as
herein provided or for any loss to or diminution of the Trust Fund or for anything done or
admitted to be done by the Trustees with respect to the Trust Agreement or the Trust
Fund except as and only to the extent that such action constitutes a violation of the law or
gross negligence.
7.3. The Trustees, in their discretion, may purchase as an expense of the Trust Fund
such liability insurance for th6mselves or any other fiduciary selected by the Trustees as
may be reasonable. The Town, in its discretion, may also purchase liability insurance for
the Trustees, and as the Town may select, for any person or persons who serve in a
fiduciary capacity with respect to the Trust.
7.4. The Town shall not assume any obligation or responsibility to any person for any
act or failure to act of the Trustees, any insurance company, or any beneficiary of the
Trust Fund. The Trustees shall have no obligation or responsibility with respect to any
action required by this Trust Agreement to be taken by the Town, any insurance
company, or any other person, or for the result or the failure of any of the above to act or
make any payment or contribution, or to otherwise provide any benefit contemplated by
this Trust Agreement.
7.5. Neither the Trustees nor the Town shall be obliged to inquire into or be
responsible for any action or failure to act on the part of the other. No insurance
7
company shall be a party to this Trust Agreement, for any purpose, or be responsible for
the validity of this Trust Agreement, it being intended that such insurance company shall
be liable only for the obligations set forth in the policy or contract issued by it.
7.6. The Trustees shall invest and manage Trust assets as a prudent investor would,
using the judgment and care under the circumstances then prevailing that persons of
prudence, discretion, and intelligence exercise 'in the management of their own affairs,
not in regard to speculation but in regard to the permanent disposition of their funds,
considering the probable income as well as the probable safety of their capital, pursuant
to G.L. c.203C.
ARTICLE 8
ACTIONS BY THE TRUSTEES
8.1 A majority of Trustees may exercise any or all of the powers of the Trustees
hereunder and may execute on behalf of the Trustees any and all instruments witli the
same effect as though executed by all the Trustees.
8.2. The Trustees may, by instrument executed by all of the Trustees, delegate to any
attorney, agent or employee such other powers and duties as they deem advisable,
including the power to execute, acknowledged or deliver instruments as fully as the
Trustees might themselves and to sign and endorse checks for the account of the Trustees
of the Trust.
8.3. No Trustee shall be required to give bond.
ARTICLE 9
IJABILITY OF THE TRUSTEES
9,1. A Trustee shall not be liable for any mistake of judgment or other'action made,
taken or omitted by the Trustee in good faith, nor for any action taken or omitted by any
other Trustee or any agent or employee selected with reasonable care, and the duties and
obligations of the Trustees hereunder shall be expressly limited to those imposed upon
them by this Trust Agreement.
9.2. No successor Trustee shall be held responsible for an act or failure of a
predecessor Trustee.
9.3. Trustees are public employees for purposes of G.L. c.258, and shall be
indemnified by the Town against any civil claim, action, award, compromise, settlement
or judgment by reason of an intentional tort to the same extent and under the same
condition as other public employees of the Town.
9.4. A Trustee shall not be indemnified for violation of the civil rights of any person if
he acted in a grossly negligent, willful or malicious manner, or in connection with any
8
matter where it is shown to be a breach of fiduciary duty, an act of willful dishonesty or
an intentional violation of law by the Trustee.
ARTICLE 10
MEETrNGS OF THE TRUSTEES
10.1. The Trust may meet at such times and at such places as the Trustees shall
determine.
10.2 The Trustees shall comply with the Open Meeting Law, G.L. c.30A, §§18-25 and
its implementing regulations.
10.2. A quorum at any meeting shall be a majority of the Trustees then in office.
ARTICLE 11
TAXES, EXPENSES, AND COMPENSATION
11.1. It is intended that the Trust will be a Code Article 115 trust. As such, it is
expected that there will be no income taxes owed by the Trust. To the extent that any
taxes are imposed on the Trust, the Trustee shall use the assets of the Trust Fund to pay
for any taxes owed.
11.2. All reasonable costs and expenses of managing and administering the Trust and
the Trust Fund, ]Including such compensation for the Trustees as may be approved by
Town Meeting from time to time, and reimbursement for reasonable fees incurred
through the use of third party vendors or agents, shall be paid from the Trust unless the
Town chooses to pay the expenses directly.
ARTICLE 12
ACCOUNTS
12.1. The Trustees shall keep complete and accurate accounts of all of the Trust's
receipts, investments and disbursements under this Trust Agreement. Such records, as
well as all other Trust records, shall be retained and made available for public inspection
and or copying in accordance with the requirements of the Public Records Law, G.L.
c.66, §10 and G.L. c.4, §7, clause 26 1h ai�d their implementing regulations. The p�rson or
persons designated by the Town shall be entitled to inspect such records upon request at
any reasonable time.
12.2. The books and records of the Trust shall be audited annually by an independent
auditor in accordance with accepted accounting practices. The results of the audit shall
be provided to the Town at the same time as it is presented to the Trustees.
12.3. The Trust Fund shall be subject to the Commonwealth of Massachusetts Public
Employee Retirement Administration Commission's triennial audit.
9
ARTICLE 13
ANNUAL REPORTS
13.1. The Trustees shall fumish to the Town annually, or more frequently if the Town
so requests, a statement of account showing the condition of the Trust Funds and all
investments, sales, income, disbursements and expenses of the Trust and the Trust Fund.
ARTICLE 14
INVESTMENT OF TRUST FUNDS
14.1. The Trustees hereby authorize and direct the Town Treasurer to invest and
reinvest the amounts in the Trust Fund not needed for current disbursement, consistent
with the prudent investor rule, and as provided in the Investment Policy which is attached
to this instrument and hereby incorporated.
14.2. In no event shall the funds be invested directly in mortgages or in collateral loans.
ARTICLE 15
CUSTODY OF THE TRUST FUNDS
15.1. The Trustees hereby appoint the Town Treasurer as custodian of the Trust Fund
and authorize the Treasurer to employ an outside custodial service to maintain custody of
the Trust Funds. All funds in the Trust Fund shall be accounted for separately from all
other funds of the Town.
15.2. The Town Treasurer, with the authorization of the Trustees, shall establish one or
more checking accounts, which may be interest bearing or non-interest bearing accounts.
Such checking account or accounts shall be funded solely from the Trust Funds, and the
Trustees may authorize the Town Treasurer to draw on such checking accounts for the
payment of OPEB and for the administrative expenses of the Trust.
ARTICLE 16
TERMNATION OF TRUST
16.1. The Trust shall continue unless and until terminated pursuant to law or by an
instrument in writing signed by at least three Trustees, provided, however, that
continuance of the Trust shall not be deemed to be a contractual obligation of the Town.
16.2. Upon termination of the Trust, subject to the payment of or making provision for
the payment of all obligations and liabilities of the Trust and the Trustees, the net assets
of the Trust shall be transferred to the Town and held by the Town Treasurer to be used
exclusively for providing OPEB to Retired Employees and their eligible dependents and
for no other purpose.
10
16.3. The powers of the Trustees shall continue until the affairs of the Trust are
concluded.
ARTICLE 17
AMENDMENTS
17.1. The Trust may only be amended asset forth herein. The Town may amend the
Trust at any time as may be necessary to comply with the requirements for tax exemption
under Section 115 of the Code, to conform the Trust to the laws of the Commonwealth of
Massachusetts and to meet the standards set forth in GASB 43 and GASB 45 to be treated
as funded through a qualifying trust or equivalent arrangement.
17.2. This Trust Agreement may be amended, but not revoked, from time to time by the
Town, subject to the following limitations:
17.2.1. The assets of the Trust may not be used for or diverted to any other
purposes prior to satisfaction of the Town's OPEB obligations, and reasonable
expenses of administering the Trust.
17.2.2. The duties and fiabilities of the Trustees cannot be substantially changed
without their written consent.
17.3 Any amendment to this Trust shall be executed in writing.
ARTICLE 18
MERGER
18.1. The Town may provide for the merger of the Trust with one or more other trusts
established by the Town or other government entities for similar purposes as may be
provided by law.
ARTICLE 19
SEVERABILITY OF INVALID PROVISIONS
19.1. If any provision of this Trust Agreement is determined invalid, illegal, or
unenforceable for any reason, then the provision shall be severed from the remaining
provisions of the Trust Agreement for any reason, and the remaining parts of the
Agreement shall be construed to give the maximum practical effect to the purposes stated
herein, as if the invalid, illegal, or unenforceable provision was never a part.
ARTICLE 20
MISCELLANEOUS
20.1. This Trust Agreement shall be interpreted, construed and enforced, and the Trust
hereby created shall be administered in accordance with and governed by the laws of the
United States and of the Commonwealth of Massachusetts.
20.2. The titles to Articles of this Trust Agreement are placed herein for convenience of
reference only, and the Trust Agreement is not to be construed by reference thereto.
20.3. No person shall be obliged to see to the application of any money paid or property
delivered to the Trustees, or as to whether or not the Trustees have acted pursuant to any
authorization herein required, or as to the terms of this Trust Agreement. In general, each
person dealing with the Trustees may act upon any advice, request Or representation in
writing by the Trustees, or by the Trustee's duly authorized agent, and shall not be liable
to any person in so doing. The certification of the Trustees that they are acting in
accordance with this Trust Agreement shall be conclusive in favor of any person relying
thereon.
20.4. This Trust Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original but all of which together shall constitute but one
instrument, which may be sufficiently evidenced by any counterpart.
20.5. Until advised to the contrary, the Trustees may assume this Trust is entitled to
exemption from taxation under Section 115 of the Internal Revenue Code of 1986 or
under any comparable section or sections of future legislation that amend, supplement or
supersede one or both of those sections of the Internal Revenue Code.
12
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be executed in their respective names by their duly authorized officers as of the day and
year first above written,
Witnessed By: Mayor Richard A. Cohen:
Date
TRUSTEE:
Trustee Town Treasurer
13
MAYORAL ACTION
Received this day of - O-IW LLS� 2012 from Council Clerk.
Signed by Council President this day of Cb-�q U,-�t , 2012.
APPROVAL OF LEGISLATION
By the powers vested in me pursuant to Article 3, Section 3-6 of the Agawam Charter, as
amended, I hereby approve the passage of the above legislation on this Cr"^- day of
'k'C'u� ) 2012.
�j
Z"z z/-�
Richard A. Cohen, Mayor
DISAPPROVAL OF LEGISLATION
By the powers vested in me pursuant to Article 3, Section 3-6 of the Agawam Charter, as
amended, I hereby veto the passage of the above legislation on this day of
� 2012 for the following reason(s):
Richard A. Cohen, Mayor
RETURN OF LEGISLATION TO COUNCIL CLERK
Returned to Council Clerk this day of (L( 4 U,� 2012.
i
AMENDED TOR-2012-02
NOW TITLED
TR-2012-38
A RESOLUTION ADOPTING MASSACHUSETTS GENERAL LAWS, CHAPTER 32B,
SECTION 20.
(Sponsored By: Mayor Richard A. Cohen)
WHEREAS, the Town of Agawam has established certain Other Post Employment
Benefits (OPEB), other than pensions, for eligible fon-ner employees of the Town of Agawam;
and
WHEREAS, by adopting M.G.L. c.32B s. 20 the Town of Agawam can create an
Irrevocable Trust for the purposes of funding OPEB as required to be reported under the General
Accounting Standards Board Statements 43 and 45; and
WHEREAS, it is recommended that the Town adopt M.G.L. c. 32B s. 20 in order to
provide sufficient funds to meet future obligations of the Town of Agawam; and
WHEREAS, it is in the best interests of the Town of Agawam to adopt a M.G.L. c.32B s.
20;
NOW THEREFORE, THE AGAWAM CITY COUNCIL hereby resolves to accept
Massachusetts General Laws Chapter 32B, Section 20, which authorizes the Town to establish an
Other Post Employment Benefits Liability Trust Fund to reduce the unfunded liability of health
care and other post employment benefits to meet the normal cost of all such future benefits for
which the Town of Agawam is obligated and to authorize the Mayor to establish an Irrevocabie
Trust for this purpose.
DATED THIS OF . 2012.
PER ORDER OF THE AGAWAM CITY COUNCIL
Christopher C. Johnson, President
AP ROVEjD TO FORIM AND LEGALITY
j
Vincent GiSk�a, Solicitor
AMENDED TOR-2012-02
NOW TITLED
TR-2012-38
A RESOLUTION ADOPTING MASSACHUSETTS GENERAL LAWS, CHAPTER 32B,
SECTION 20.
(Sponsored By: Mayor Richard A. Cohen)
WHEREAS, the Town of Agawam has established certain Other Post Employment
Benefits (OPEB), other than pensions, for eligible former employees of the Town of Agawam;
and
WHEREAS, by adopting M.G.L. c.32B s. 20 the Town of Agawam can create an
Irrevocable Trust for the purposes of funding OPEB as required to be reported under the General
Accounting Standards Board Statements 43 and 45; and
WHEREAS, it is recommended that the Town adopt M.G.L. c. 32B s. 20 in order to
provide sufficient funds to meet future obligations of the Town of Agawam; and
WHEREAS, it is in the best interests of the Town of Agawam to adopt a M.G.L. c,32B S.
20;
NOW THEREFORE, THE AGAWAM CITY COUNCIL hereby resolves to accept
Massachusetts General Laws Chapter 32B, Section 20, which authorizes the Town to establish all
Other Post Employment Benefits Liability Trust Fund to reduce the unfunded liability of health
care and other post employment benefits to meet the normal cost of all such future benefits for
which the Town of Agawam is obligated and to authorize the Mayor to establish an Irrevocable
Trust for this purpose.
DATED THIS OF 2012.
PER ORDER OF THE AGAWAM CITY COUNCIL
Christopher C. Johnson, President
C--
APPROVED AS TO FORM AND LEGALITY >�Cn
Pw
Vincent Gioscia, Solicitor