SP330017R5009_Attachment_J.22_SCETTF_Agreement__Declaration_of_Trust_June_2_2005_WITH_signatures_CUR....pdf

agreement declaration of trust WITH signatures.doc 1 of 13

SERVICE CONTRACT

EDUCATION & TRAINING TRUST FUND

AGREEMENT AND DECLARATION OF TRUST

THIS AGREEMENT AND DECLARATION OF TRUST is made by, between and among the Laborers’ International Union of North America (“LIUNA”), the employers of LIUNA members (“Employers”) who now and hereafter execute or otherwise agree to be bound by this instrument and the individuals who herein and hereafter agree to serve as Trustees of the Trust. The Trust was originally established on January 4, 1978 by, and maintained pursuant to, prior Agreements and Declarations of Trust. In order to incorporate various amendments agreed to by the Board of Trustees, the Board of

Trustees have adopted this Restated Agreement and Declaration of Trust as of June 2, 2005.

WITNESSETH:

WHEREAS, LIUNA and Employers have agreed to establish a Trust Fund;

WHEREAS, said Trust Fund was formerly known as the “Laborers Employer

Education and Training Trust Fund” and now is to be known as the “Service

Contract Education and Training Trust Fund”;

WHEREAS, it is desired to restate the terms and conditions under which said Trust Fund is to be maintained and administered;

WHEREAS, this restatement of the terms of the Trust Fund will enhance the effectiveness and efficiency of the Trust Fund’s operations and the delivery of training, education and job opportunities to the Employees of

Employers;

WHEREAS, the Board of Trustees has been authorized at all times under predecessor Agreements and Declarations of Trust to amend the terms of the Trust; and

WHEREAS, LIUNA, Employers and the Trustees intend this Trust Fund to continue to qualify for tax-exempt status under section 501 (c)(5) of the

Internal Revenue Code and to comply with the Employee Retirement Income

Security Act to the extent possible.

NOW THEREFORE, in consideration of the promises, covenants and agreements made herein, it is mutually understood and agreed as follows:

ARTICLE I

DEFINITIONS

Unless the context or subject matter otherwise requires, the following definitions shall govern the interpretations of this instrument:

Section 1. UNION. The term “Union” shall mean the Laborers’

International Union of North America, or any of its affiliates.

SP3300-17-R-5009 Attachment J.22

Section 2. EMPLOYEE. The term “Employee” shall mean any person who is or may be covered by a collective bargaining agreement between an

Employer and the Union, which requires contributions to this Fund.

Section 3. TRUST FUND. The term “Trust Fund” shall mean the “Service

Contract Education and Training Trust Fund” established by a predecessor

Agreement and Declaration of Trust between the Union and Employers on

January 4, 1978 and maintained pursuant to this Trust Agreement and shall generally mean the moneys or other things of value which comprise the corpus and additions to the Trust Fund.

Section 4. TRUSTEES. The term “Trustees” shall mean the individuals here or hereafter appointed in accordance with the terms of this Restated

Trust Agreement or predecessor Agreements and Declarations of Trust as

Trustees to hold the Trust Fund’s assets in trust and to administer the

Trust Fund as fiduciaries.

Section 5. BOARD OF TRUSTEES. The terms “Board of Trustees” and “Board” shall mean the body comprised of all the Trustees.

Section 6. TRUST AGREEMENT. The term “Trust Agreement” shall mean this

Restated Agreement and Declaration of Trust, including any amendments hereto.

Section 7. EMPLOYER. The term “Employer” shall mean any employer

(including any association acting on behalf of Employers) which is or shall become bound to the Trust Agreement and which has agreed or shall agree in a collective bargaining agreement with the Union to make contributions to this Trust Fund.

Section 8. CONTRIBUTIONS. The term “Contributions” shall mean money paid to the Trust Fund by the Employers in accordance with their collective bargaining agreements with the Union.

ARTICLE II

AFFIRMATION OF THE TRUST

AND GENERAL PURPOSES

Section 1. AFFIRMATION. The Union, Employers and Trustees do hereby affirm and redeclare the establishment and continued existence of the

Trust Fund now known as the “Service Contract Education and Training

Trust Fund” to be used for the purposes permitted by this Trust Agreement and applicable law.

Section 2. GENERAL PURPOSES. The general purposes and objects of the

Trust Fund shall be as follows:

(a) provide Employees in the service contract industry with training and educational opportunities that will enhance their employability and productivity (these may include off-the-job and on-the-job reimbursement for training rendered by employers, training corporations, or training institutions, training specialists and qualified consultants and wage subsidization);

(b) provide education and training programs relating to the nature, concerns, operation, and labor-management relations of the service contract industry;

(c) provide needed training materials, educational support, teaching aids, consultation, assistance, or advice for training educational programs in the service contract industry;

(d) promote and solicit funds from private and governmental sources for conducting special training and training research programs for special target population groups;

(e) create or seek to create employment opportunities for trainees in the service contract industry;

(f) locate existing employment opportunities for trainees in the service contract industry;

(g) determine, insofar as possible, the future needs of Employers for persons skilled in various work and classifications;

(h) provide scholarships for Employees and Employers to relevant classes of training programs;

(i) provide educational assistance programs for employees including GED and post-secondary education classes; and

(j) encourage and assist in the establishment of local, regional and/or national joint labor-management committees which would assist in the development of training programs and oversee training programs to ensure that they are being carried out in a proper manner.

ARTICLE III

TRUSTEES

Section 1. TRUSTEES. The operation, management and administration of the Trust Fund shall be the joint responsibility of a Board of

Trustees, which shall consist of equal numbers of Trustees representing the Union and the Employers. Initially the Board of Trustees consisted of two (2) Trustees – one (1) appointed by the Union and one (1) appointed by the Employers. The Trustees have increased their number and may continue to do so from time to time by designating additional Union

Trustees and Employer Trustees, provided that the total number of

Trustees shall not exceed twelve (12), six (6) Union Trustees and six (6)

Employer Trustees. There shall be no requirement that the companies with which the Employer Trustees are associated be contributing Employers.

The Trustees shall determine the procedure and basis for naming additional Trustees.

Section 2. ACCEPTANCE OF TRUSTEESHIP. The Trustees shall immediately meet and sign this Restated Agreement and Declaration of

Trust. The Trustees, by affixing their signatures to this Agreement and

Declaration of Trust, agree to accept the trusteeship and act in such capacity in accordance with the provisions of this Restated Agreement and

Declaration of Trust. Any person duly appointed an additional or successor Trustee shall immediately upon his acceptance in writing of the terms of the Agreement and Declaration of Trust be vested with all the property, rights, powers and duties of a Trustee hereunder.

Section 3. TERM OF TRUSTEES. Each Trustee, including additional and successor Trustees, shall serve until his death, incapacity, resignation or removal.

Section 4. RESIGNATION. Any Trustee may resign by a written instrument executed for that purpose and delivered by registered mail to the Trust Fund office and, if a Trustee representing the Union, to

LIUNA’s General President.

Section 5. REMOVAL. Any Union Trustees may be removed at any time, with or without cause, by LIUNA’s General President. Any Employer

Trustees may be removed at any time, with or without cause, by the other

Employer Trustees. Any Trustee may be removed at any time, with or without cause, by majority vote of the other Trustees.

Section 6. VACANCIES. No vacancy or vacancies on the Board of

Trustees shall impair the power of the remaining Trustees to administer, manage and operate the Trust Fund pending the filling of such vacancy or vacancies, subject only to the quorum requirements provided hereinafter.

In any event, the Employer Trustees and the Union Trustees shall at all times have equal voting strength.

Section 7. SUCCESSOR TRUSTEES. In the event of the resignation, disqualification, removal, disability or death of a Trustee, a successor

Union Trustee shall be designated by LIUNA’s General President and a successor Employer Trustee shall be designated by the remaining Employer

Trustees.

ARTICLE IV

POWERS, DUTIES AND OBLIGATIONS OF TRUSTEES

Section 1. CONSTRUCTION OF AGREEMENT. The Trustees shall have the sole power to construe the provisions of this Trust Agreement and the terms used herein and any adopted interpretations by the Trustees in good faith shall be binding upon the Union, Employers, Employees or any other parties.

Section 2. GENERAL POWERS. The Board of Trustees are hereby vested with all authority and powers necessary or appropriate to carry out the purposes of the Trust Fund, including but not limited to full authority and power:

(a) To lease, purchase or obtain such lands, premises, materials, supplies, equipment, insurance, goods and services as the Board of

Trustees deems necessary or appropriate, and to pay reasonable compensation, costs or expenses therefore from the Trust Fund;

(b) To hire, employ, retain or contract with persons or organizations to provide such administrative, clerical, technical, professional, legal, accounting actuarial and other assistance as the Board of

Trustees deems necessary or appropriate and to pay reasonable compensation, costs or expenses therefore from the Trust Fund;

(c) To develop and implement such programs, plans, services, goods and materials as the Board deems necessary or appropriate for carrying out the purposes of the Trust;

(d) To delegate to any employees, agents, professionals, or service providers such powers and duties as the Board considers necessary or appropriate;

(e) To enter into on behalf of the Trust Fund such contracts or agreements as the Board of Trustees considers necessary or appropriate.

(f) To compromise, settle, arbitrate, and release claims or demands in favor of or against the Trust Fund or the Trustees on such terms and conditions as the Board may deem advisable.

(g) To establish and accumulate as part of the Trust Fund a reserve or reserves, adequate, in the opinion of the Board, to carry out the purposes of the Trust Fund.

(h) To pay out of the Trust Fund all real and personal property taxes, income taxes and other taxes of any and all kinds as may be lawfully levied or assessed upon the Trust Fund or with respect to any of its property.

(i) To solicit, raise, set rates for and receive contributions and other payments or property from any lawful source whatsoever.

(j) To invest and reinvest the Trust Fund monies in any type of prudent investments, to take any and all action with respect to holding, buying, selling, and exchanging such investments, in the Trustees’ name or in the names of their nominee, as the Board of Trustees in its sole discretion may deem to be appropriate or necessary.

(k) To hold Trust Fund monies in uninvested cash, without any liability for interest thereon, in such sums as the Board deems necessary or advisable for meeting the cash requirements of the Trust Fund.

(l) To initiate on behalf of the Trust Fund such lawsuits and other proceedings as the Board deems necessary or appropriate, to defend lawsuits or other legal proceedings brought against the Trust Fund or the Trustees and to pay the cost and expenses thereof, including attorney’s fees out of the Trust Fund to extent not prohibited by applicable law.

(m) To promote the Trust Fund and to take such other actions as the

Board deems necessary or appropriate to attract interest in the

Trust Fund’s purposes and activities.

(n) In their discretion and to the extent they deem it wise, beneficiary or necessary to appoint a bank or trust company to be designated as

“Corporate Trustee”, or to appoint an organization which is registered as an investment advisor under the Investment Advisors

Act of 1970, to provide the investment and reinvestment of assets of the Trust Fund. Any organization appointed under this subsection shall be an “Investment Manager” as defined in the Employee

Retirement Income Security Act of 1974.

(o) To authorize any bank, trust company, insurance company, or investment manager to commingle any monies deposited with it in pooled investment accounts administered or managed by it.

(p) To do all acts, whether or not expressly authorized herein, which the Trustees may deem necessary or appropriate to protect the Trust

Fund and its property or to accomplish the purposes of the Trust

Fund.

Section 3. COMPENSATION. The Trustees shall not receive compensation for the performance of their duties. All Trustees may be reimbursed from the Trust Fund assets for reasonable and actual expenses incurred in connection with their services to the Trust Fund.

Section 4. PERSONAL LIABILITY. To the extent permitted by applicable law:

(a) Neither the Union nor any Employer, nor any Employee, nor any of their representatives or officers shall in any way be responsible or liable in any respect for any of the acts, omissions, or obligations of the Trust Fund or the Trustees, individually or collectively.

(b) Neither the Union nor any Employer, nor any Employee, nor any

Trustee shall be responsible or liable for:

(1) The validity of this Trust Agreement or any Trust Fund program;

(2) The form, validity, sufficiency or effect of any contract or policy which may be entered into; or

(3) Any delay occasioned by any restrictions or provisions in this

Trust Agreement, in rules adopted by the Trustees, in any contract or policy procured in the course of the administration of the Trust Fund, or in any collective bargaining agreement or agreements.

(c) No Trustee shall be liable or responsible for his own acts or omissions or for any acts or omissions of any other fiduciary or any other person, except for his own acts or omissions determined by a court to be willful misconduct, or as otherwise required by law.

The Trust Fund shall indemnify (through insurance or otherwise) each

Trustee against any and all claims, losses, damages, expenses and liabilities arising from any action or omission, and shall assume the cost of defending the same, except to the extent that the

Trustee is found personally liable.

(d) Neither the Trust Fund nor its Trustees, administrators and agents shall assume any responsibility for the oversight, carelessness, inadvertent error, or any other act or thing done or omitted or for any misstatement or misrepresentation made by any agent or employee of any insurance company, bank, trust company, investment manager, service provider, Employer, Employee or LIUNA; further, the obligation or liability of the Trust Fund and its Trustees, administrators and agents hereunder shall be specifically limited to the receipt of any sum or sums which may come into their hands pursuant to the terms of this Trust Agreement.

(e) The Trustees shall not be liable for the proper application of any part of the Trust Fund or for any other liabilities arising in connection with the administration or operation of the Trust Fund, except as herein provided.

(f) The Trustees shall be fully protected in acting upon any instrument, 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 such writing, but may accept the same as conclusive evidence of the truth and accuracy of the statements therein contained.

(g) The Trustees may from time to time consult with the Trust Fund’s legal counsel, accountant, consultants, actuaries or other professionals and shall be fully protected in acting in reliance on such advice.

(h) The Trustees shall be fully protected in reliance on information, data, statistics or analyses furnished by persons performing such functions for the Trust Fund.

(i) The Trustees, administrators and agents shall have no liability for acting in compliance with a provision of this Trust Agreement or any

Trust Fund program which is subsequently found to be unlawful.

Section 6. BOOKS OF ACCOUNT. The Trustees shall keep true and accurate books of account and records of all Trust Fund transactions, which shall be audited at least annually by an independent certified public accountant selected by the Trustees. Such audits shall be available at all times for inspections by the Union and the Employers at the principal office of the Trust Fund.

Section 7. EXECUTION OF DOCUMENTS. The Trustees may authorize an

Employer Trustee and Union Trustee or any joint group equally composed of

Employer and Union Trustees to jointly execute any notice, document, certification or other instrument in writing, and all persons, partnerships, corporations, associations or other entities may rely thereupon that such notice or instrument has been duly authorized and is binding on the Trust Fund and its Trustees.

Section 8. DEPOSITS AND WITHDRAWAL OF FUNDS.

(a) All monies received by or on behalf of the Trust Fund shall be deposited in such bank or banks as the Trustees may designate for that purpose, and all withdrawals of monies from such account or accounts shall be made only by checks, drafts or other recognized written method of transmitting money signed by such Trustees as are authorized in writing by the Board of Trustees to sign. Except as herein provided, no check, draft or other writing drawing on the

Trust Fund’s account or accounts shall be valid unless signed by two

Trustees.

(b) The Trustees may, in their discretion, designate and authorize an employee of the Trust Fund to sign checks or otherwise draw upon such separate and specific bank account or accounts as the Trustees may designate and establish for such purpose. The Trustees may, in their discretion, limit the amount and number of such checks or draws as they consider appropriate.

Section 9. SURETY BONDS. The Trustees and any employees and agents of the Trust Fund engaged in handling assets of the Trust Fund shall be bonded by a duly authorized surety company in such amounts as may be determined from time to time by the Trustees. The cost of the premium on such bonds shall be paid out of the Trust Fund.

Section 10. FIDUCIARY LIABILITY INSURANCE. The Trustees may in their discretion obtain and maintain contracts or policies of insurance to the extent permitted by law, to insure themselves, the Trust Fund as such, as well as employees or agents of the Trust Fund, while engaged in business and related activities on behalf of the Trust Fund: (1) with respect to liability to the Trust Fund and others as a result of acts, errors or omissions of such Trustees, employers or agents, provided such insurance contract or policy shall permit recourse by the insurer against the Trustees and other covered persons if required by law; and (2) with respect to injuries received or property damages suffered by them. The cost of the premiums for such policies or contracts of insurance shall be paid out of the Trust Fund. Any Trustee or other covered fiduciary may purchase, at his own expense, a rider to such policy or contract or a separate contract or policy to insure against any recourse by the insurer.

ARTICLE V

PARTICIPATION AND CONTRIBUTIONS

Section 1. PARTICIPATION. Participation in the Trust Fund shall be open to all employers in the service contract industry which employ

Employees represented by the Union. The Trustees are empowered to condition participation on execution of such participation agreements or forms as the Board of Trustees may promulgate, and on such other conditions as the Board deems necessary and appropriate. An Employer may terminate its participation in the Trust Fund by a written notice sent by registered mail, addressed to the office of the Trust Fund; except to the extent that the Employer is bound by a collective bargaining agreement, a participation agreement, or some other agreement requiring participation in the Trust Fund. Termination of participation shall not excuse any

Employer from indebtedness to the Trust Fund for all contributions and other payments due for the period before the effective date of the termination.

Section 2. RATE OF CONTRIBUTIONS. The Employers participating in the Trust Fund shall pay into the Trust Fund contributions in such amounts as required by the collective bargaining agreements negotiated by the Union and the Employer.

Section 3. MODE OF PAYMENT. All contributions shall be payable to the “Service Contract Education and Training Trust Fund” and shall be paid on a monthly basis and specifically by the twentieth (20 th ) day of the first month following the months during which the contributions accrued, unless otherwise expressly required by the Board of Trustees.

The Employer shall also submit to the Trust Fund on a monthly basis such contribution reports as the Board of Trustees may require to verify the amount of contributions owed (if any) for the preceding month. Such reports shall be submitted even if the employees performed no work and no contributions are owed to the Trust Fund for the month covered by the report.

Section 4. DEFAULT IN PAYMENT. Employers who fail to pay the contributions or other payment owed the Trust Fund when due may be expelled, at the Board’s discretion, from participation in the Trust

Fund. In addition to any other remedies to which the Trust Fund (or its

Board of Trustees) is entitled, any Employer which fails to pay contributions or other payments owed within thirty (30) days after the end of the month for which such contributions are due shall be liable to the Trust Fund for interest at the rate of one-and one-half percent (1-

1/2%) per month compounded from the due date through the date of payment, as well as for all expenses of collection incurred by the Trust Fund, including attorneys’ fees and court costs. The Trustees are empowered to institute proceedings at law or equity, and to take any other action, to collect contributions and all other payments due.

Section 5. REPORT ON CONTRIBUTIONS. The Employer shall submit to the Trust Fund such written reports or documents as the Trustees may deem necessary or appropriate to collect and substantiate contributions.

Section 6. AUDITS. The Employer, at the request of the Board of

Trustees, shall submit to an audit by a certified public accountant or accountancy firm of the appropriate records of the Employer to verify that the correct amount of contributions or of other payments due has been or will be paid.

ARTICLE VI

MEETINGS AND DECISIONS OF TRUSTEES

Section 1. OFFICERS. The Trustees shall select from among the

Trustees two (2) Co-Chairmen; one of whom shall be a Union Trustee and the other of whom shall be an Employer Trustee. The Trustees may appoint other officers as they deem appropriate.

Section 2. MEETING OF TRUSTEES. Meetings of the Trustees shall be held at such place or places as may be agreed upon by the Trustees and may be called upon five (5) days’ written notice to all Trustees and may be held at any time without such notice if all the Trustees consent thereto in writing.

Section 3. ACTION BY TRUSTEES WITHOUT MEETING. Action by the

Trustees may also be taken by them in writing without a meeting, provided that is such cases there shall be unanimous written concurrence by all of the Trustees.

Section 4. QUORUM. No actions shall be taken at a meeting of the

Trustees unless a quorum, equal to two (2) Trustees (at least one (1)

Employer Trustees and one (1) Union Trustee) is present; and at all meetings the Employer Trustees and the Union Trustees shall have equal voting strength.

Section 5. MAJORITY VOTE TRUSTEES. All action by the Trustees shall be by majority decision of the Employer and Union Trustees. In the event any matter presented for decision cannot be decided because of a tie vote or because of the lack of a quorum at two (2) consecutive meetings, the matter may then be submitted to arbitration as hereinafter provided.

Section 6. MINUTES OF MEETINGS. The Trustees shall keep written minutes of all meetings, but such minutes need not be verbatim.

ARTICLE VII

IMPARTIAL ARBITRATOR

Section 1. SELECTION OF ARBITRATOR. Either all or any of the

Employer or Union Trustees may apply to the American Arbitration

Association in the area in which the Trust Fund maintains its principal office for the designation of an arbitrator who will decide any disputes among the Trustees or any other matter submitted to arbitration in accordance with the provisions of Article VI, Section 5. The decision if the arbitrator shall be final and binding.

Section 2. EXPENSES OF ARBITRATION. The cost and expense incidental to any arbitration proceeding, including the arbitrator’s fee, shall be payable from the Trust Fund, except that the parties shall pay their own attorney’s fees.

ARTICLE VIII

AMENDMENT TO TRUST AGREEMENT

Section 1. AMENDMENT BY TRUSTEES. This Trust Agreement may be amended in any respect from time to time by the Board of Trustees, provided that each amendment shall be duly executed in writing by the

Trustees and annexed hereto. As to any amendment, the Trustees in their sole discretion shall have full power to fix the effective date thereof.

Section 2. LIMITATION OF RIGHT TO AMENDMENT. No amendment may be adopted which will violate applicable law, alter the basic purposed of the Trust Fund, or permit the net earnings of the Trust Fund to inure to the benefit of any Employer, Union, or any other individual or organization, except to the extent permitted by the applicable provisions of Internal Revenue Code and all other applicable laws.

Section 3. NOTIFICATION OF AMENDMENT. Whenever an amendment is adopted in accordance with this Article, a copy thereof shall be distributed to all Trustees, and the Trustees shall so notify all employers and shall execute any instrument or instruments necessary in connection therewith.

ARTICLE IX

TERMINATION OF TRUST

Section 1. TERMINATION OF THE TRUST. This Trust Fund and Trust

Agreement may be terminated at any time by unanimous agreement of the

Trustees or by the Union; provided that such action shall be confirmed by a duly executed written agreement.

Section 2. PROCEDURE ON TERMINATION. In the event of termination of the Trust Fund, the Trustees shall first apply the Trust Fund’s assets to pay or provide for the payment of any and all proper obligations of the Trust Fund, and then shall distribute and apply any remaining assets in a manner which the Board of Trustees, in its sole discretion, deems consistent with the purposes of the Trust Fund and which is not prohibited by applicable law. The Trustees are empowered to take any and all action necessary or appropriate to effectuate the termination and final distribution of assets and to conclude the Trust Fund’s affairs.

The Trustees shall continue to serve as such until the Trust Fund’s affairs are concluded.

Section 3. MERGER. The Board of Trustees may agree to merge the

Trust Fund with or into another trust or other tax-exempt entity with similar purposes as the Trust Fund provided that such action is not prohibited by applicable law.

Section 4. NO INCUREMENT. Under no circumstances, including termination of merger, shall the assets of Trust Fund inure to the benefit of any Employer, Union or other individual or organization, except to the extent permitted by applicable provisions of the Internal

Revenue Code and other laws.

Section 5. NOTIFICATION OF TERMINATION. Upon termination of the

Trust Fund by action of the Trustees, the Trustees shall forthwith notify the Union and the Employers. Upon termination of the Trust Fund by action of the Union, the Union shall forthwith notify the Trustees who shall in turn notify the Employers.

ARTICLE IX

MISCELLANEOUS PROVISIONS

Section 1. VESTED RIGHTS. No Employer, Union or Employee or any person claiming by or through such Employer, Union or Employee, including his family, dependents, beneficiary and/or legal representative, shall have any right, title or interest in or to the Trust Fund or its assets except as may be specifically determined by the Board of Trustees. The obligations of the Trust Fund shall be payable only from the Trust Fund assets.

Section 2. ENCUMBRANCE OF BENEFITS. No monies, property or equity, of any nature whatsoever, in the Trust Fund, or policies or benefits or monies payable therefrom shall be subject in any manner by an Employer, Union or Employee or any person claiming through such Employer, Union or

Employee to anticipation, alienation, sale, transfer, assignment, pledge,