4510-29-P
DEPARTMENT OF LABOR
Employee Benefits Security Administration
[Exemption Application No. L-12006]
Proposed Exemption for Associated General Contractors of America, San Diego
Chapter, Inc. Apprenticeship and Training Fund, Located in San Diego, CA
AGENCY: Employee Benefits Security Administration, Labor.
ACTION: Notice of proposed exemption.
SUMMARY: This document provides notice of the pendency before the Department of
Labor (the Department) of a proposed individual exemption from certain of the
prohibited transaction restrictions of the Employee Retirement Income Security Act of
1974, as amended (ERISA or the Act). This proposed exemption would permit the
leasing of certain improved real property located in San Diego, California by the
Associated General Contractors of America, San Diego Chapter, Inc. Apprenticeship and
Training Fund (the Plan or the Applicant), from the Associated General Contractors of
America, San Diego Chapter, Inc. (the Chapter).
DATES: Comments due: Written comments and requests for a public hearing on the
proposed exemption should be submitted to the Department by [INSERT DATE 45
DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER].
Exemption date: If granted, this exemption will be in effect beginning on October 1,
2020.
ADDRESSES: All written comments and requests for a hearing should be submitted to
the Employee Benefits Security Administration (EBSA), Office of Exemption
Determinations, Attention: Application No. L-12006 via email to e-OED@dol.gov or
online through https://www.regulations.gov. Any such comments or requests should be
sent by the end of the scheduled comment period. The application for exemption and the

comments received will be available for public inspection in the Public Disclosure Room
of the Employee Benefits Security Administration, U.S. Department of Labor, Room N1515, 200 Constitution Avenue, N.W., Washington, D.C. 20210. See
SUPPLEMENTARY INFORMATION below for additional information regarding
comments.
FOR FURTHER INFORMATION CONTACT: Mr. Frank Gonzalez of the
Department at (202) 693-8553 (this is not a toll-free number).
SUPPLEMENTARY INFORMATION:
Comments:
Persons are encouraged to submit all comments electronically and not to follow
with paper copies. Comments should state the nature of the person’s interest in the
proposed exemption and how the person would be adversely affected by the exemption, if
granted. Any person who may be adversely affected by an exemption can request a
hearing on the exemption. A request for a hearing must state: (1) the name, address,
telephone number, and email address of the person making the request; (2) the nature of
the person’s interest in the exemption, and the manner in which the person would be
adversely affected by the exemption; and (3) a statement of the issues to be addressed and
a general description of the evidence to be presented at the hearing. The Department will
grant a request for a hearing made in accordance with the requirements above where a
hearing is necessary to fully explore material factual issues identified by the person
requesting the hearing. A hearing notice will be published by the Department in the
Federal Register. The Department may decline to hold a hearing if: (1) the request for
the hearing does not meet the requirements above; (2) the only issues identified for
exploration at the hearing are matters of law; or (3) the factual issues identified can be
fully explored through the submission of evidence in written (including electronic) form.

Warning: All comments received will be included in the public record without change
and may be made available online at https://www.regulations.gov, including any personal
information provided, unless the comment includes information claimed to be
confidential or other information whose disclosure is restricted by statute.
If you submit a comment, EBSA recommends that you include your name and
other contact information in the body of your comment, but DO NOT submit information
that you consider to be confidential, or otherwise protected (such as a Social Security
number or an unlisted phone number) or confidential business information that you do
not want publicly disclosed. However, if EBSA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EBSA might not be able to
consider your comment. Additionally, the https://www.regulations.gov website is an
“anonymous access” system, which means EBSA will not know your identity or contact
information unless you provide it in the body of your comment. If you send an email
directly to EBSA without going through https://www.regulations.gov, your email address
will be automatically captured and included as part of the comment that is placed in the
public record and made available on the Internet.
Proposed Exemption
The Department is considering granting an exemption under the authority of
section 408(a) of ERISA, and in accordance with the procedures set forth in 29 CFR part
2570, subpart B (76 FR 66637, 66644, October 27, 2011).1 If granted, this proposed
exemption would permit, effective October 1, 2020, the leasing of certain improved real
property located in San Diego, California by the Associated General Contractors of
America, San Diego Chapter, Inc. Apprenticeship and Training Fund (the Plan or the

This proposed exemption would not provide relief from the requirements of, or specific sections of, any
law not noted herein. Accordingly, the applicant is responsible for ensuring compliance with any other laws
applicable to this transaction.
Applicant), from the Associated General Contractors of America, San Diego Chapter,
Inc. (the Chapter), provided that the conditions described below are met.
Summary of Facts and Representations2
The Plan
1. The Plan provides apprenticeship training for construction trade employees
within five Southern California counties. The Plan is funded by participating employers
(contributing approximately 90% of the Plan’s annual funding) and the State of
California (contributing approximately 10% of the Plan’s annual funding). Apprentices
do not contribute to the Plan. The Plan’s most recent audited financial statements reflect
that the Plan’s total assets were $13,725,754 as of March 31, 2023.
2. The Plan’s Board of Trustees (the Board) is comprised of six individual
members (the Trustees) of participating construction trade employers. The Trustees
make all the Plan’s administrative and investment decisions including decisions about the
lease that is the subject of this proposed exemption.
The Plan Sponsor: The Chapter
3. The Plan is sponsored by the Chapter, which is a trade organization founded in
1927 to promote the interests of employers in the construction industry located in San
Diego, California. A Board of Directors comprised of construction trade employers
manages the Chapter.
The Plan’s Facilities Before October 1, 2020
4. The Applicant represents that before October 1, 2020, the Plan leased three
different properties from unrelated parties comprising 11,293 square feet that were used

The Summary of Facts and Representations is based on the Applicant’s representations and does not
reflect factual findings or opinions of the Department, unless indicated otherwise. The Department notes
that the availability of this exemption, if granted, is subject to the express condition that the material facts
and representations contained in application L-12006 (the Application) are true and complete and
accurately describe all material terms of the transactions covered by the exemption. If there is any material
change in the transaction covered by this proposed exemption or in a material fact or representation
described in the Application, the exemption will cease to apply as of the date of the change.
for administrative, educational, and training purposes. According to the Applicant, the
facilities on these properties lacked adequate square footage and had outdated training
technology, which resulted in increased costs and wasted resources for the Plan. In
addition, one of the properties was located more than three miles from the other two
properties.
The Chapter’s Property
5. On January 18, 2018, the Chapter and the Plan entered into a Memorandum of
Understanding (MOU) documenting their shared interest in providing a “world class
apprenticeship program” in a “modernized facility.” Following execution of the MOU,
the Chapter acquired unimproved real property located at 10140 Riverford Road,
Lakeside, California (the Parcel) from Lakeside Land Co., a California limited liability
corporation (the LLC). The LLC is not a member of the Chapter, there are no common
directors between the LLC and the Chapter, and no LLC directors are Plan Trustees. The
LLC has neither contributed nor participated in the Plan, nor does the LLC participate in
the Plan’s apprenticeship training programs.
6. In 2020, the Chapter utilized the Parcel to construct a high-ceiling training
space comprising approximately 43,600 square feet (the Building). The Chapter’s
acquisition of the Parcel, and subsequent construction of the Building, was based on the
Plan’s intent expressed in the MOU to sign a 10-year lease to use both the Building once
constructed and an unimproved exterior lot (the Property).
The Lease
7. On April 25, 2019, the Plan Trustees, acting on behalf of the Plan, caused the
Plan to enter into an agreement with the Chapter to lease both a portion of the Building
(once constructed) and an unimproved exterior lot located in the Parcel (the Lease),
subject to the review and approval of both a qualified independent fiduciary (described
below, the Independent Fiduciary) and the Department.

8. The Lease’s term is for 10 years, under which the Plan holds a leasehold
interest to occupy and use 90 percent of the Building’s rentable space (39,115 square feet
of the Building’s total space of 43,600 square feet) and an unimproved exterior lot along
with rights to use the Property’s common areas. The Chapter utilizes the remaining 10
percent, and it has no present plans to change its Building’s space allocation.
9. The Plan’s initial base rent under the Lease is $40,000 per month or
approximately $1.02 per square foot (the Base Rent). This expense during a twelve (12)
month period is about 3.5 percent of the Plan’s total assets as reflected in the Plan’s
audited financial statements for accounting year ending March 31, 2023. The Base Rent
is subject to annual increases that are discussed further below.
The Independent Appraiser
10. On May 17, 2019, the Plan engaged Cushman & Wakefield Western Inc. as
the Independent Appraiser to determine the Property’s fair market rental value. Trevor
G. Chapman, a California licensed Certified General Real Estate Appraiser, who is an
employee of the Independent Appraiser, performed the appraisal.
11. Mr. Chapman represents that the Independent Appraiser has no present or
prospective interest in the Property that is subject to the Lease, and no personal interest
with respect to the Plan and the Chapter. In addition, Mr. Chapman represents that the
Independent Appraiser’s annual gross revenues derived from parties in interest with
respect to the Plan represented 0.37% of its gross revenues for the 2020 tax year.
Furthermore, the Independent Appraiser’s agreement with the Plan does not contain any
provisions that provide for the direct or indirect indemnification or reimbursement of the
Independent Appraiser by the Plan or any other party for any failure to adhere to its
contractual obligations or to state or Federal laws applicable to the Independent
Appraiser’s work, or that waive any rights, claims or remedies of the Plan or its
participants and beneficiaries under ERISA, the Code, or other Federal and state laws

against the Independent Appraiser with respect to the transaction(s) that are the subject of
the exemption.
12. Mr. Chapman inspected the Property on July 1, 2019, to collect primary and
secondary data related to the Property, investigate the general trends in the regional
economy and local area, analyzed rental data where appropriate, and reviewed (i) the cost
estimates based upon submitted architects’ plans, and (ii) the proposed Lease using
generally accepted market-derived appropriate methods and procedures. In a written
report (the Independent Appraisal Report) dated October 23, 2019, Mr. Chapman
determined that the Property’s fair market rental rate was $44,443 per month, which
represented $1.14 per square foot of the Plan’s rentable space.
13. According to the Independent Appraiser, the Lease is a triple net lease.3
Notwithstanding the types of commercial leases that may exist in any given marketplace,
the Independent Appraiser informed the Department that the Property subject to the
Lease is located in a market area in which commercial leases are typically written on a
triple-net basis with tenants responsible for all operating expenses, including common
area maintenance, taxes, and insurance. Lease terms within the Property’s market are
generally between 3 and 7 years for industrial tenants and contain annual escalations of
3.0 percent.
The Independent Fiduciary
14. On October 27, 2019, the Plan Trustees retained the services of Prudent
Fiduciary Services, LLC (PFS) of Los Angeles, California, to serve as the Plan’s
Independent Fiduciary with respect to the Lease. Specifically, Mr. Miguel Paredes, a
principal with PFS, was appointed to undertake the duties and responsibilities on behalf

The Independent Appraiser notes that a triple net lease is a type of commercial lease wherein the lessee is
responsible for their pro rata share of expenses for common area maintenance, taxes, and insurance. Also,
in addition to a base rent, tenants subject to triple net leases are often required to reimburse the landlord for
certain expenses; recovery clauses for expenses range from absolutely net (whereby the tenant pays all
property expenses) to fully gross (in which tenant pays no expenses), which provisions can vary by
property type, locale, and can fall anywhere within the net to gross range.
of PFS in its role as the Plan’s Independent Fiduciary to ensure that the Lease
arrangement complied with ERISA.
15. The Independent Fiduciary represents that neither Mr. Paredes nor PFS had a
pre-existing relationship with the Plan or the Chapter. The Independent Fiduciary also
represents that Mr. Paredes and PFS expect to derive approximately 0.55 percent of their
combined annual gross revenues from the Plan and parties in interest with respect to the
Plan. The Independent Fiduciary’s agreement with the Plan did not contain any
provisions that violated ERISA Section 410 or the Department’s Regulations codified at
§2509.75-4;4 and did not contain any provision providing for the direct or indirect
indemnification or reimbursement of the Independent Fiduciary by the Plan or other party
for any failure to adhere to its contractual obligations or to state or Federal laws
applicable the Independent Fiduciary‘s work, or waiving any rights, claims, or remedies
of the Plan under ERISA, state, or Federal law against the Independent Fiduciary with
respect to the transaction(s) that are the subject of the exemption.
16. The Independent Fiduciary examined whether the Lease would be reasonable,
prudent, in the interest of, and protective of the Plan and of the Plan’s participants. To
perform this examination, the Independent Fiduciary: (a) reviewed various documents
provided by the Plan, such as trust agreements, IRS Forms 990, financial statements,
written policies, guidelines, and procedures, lease agreements, and the Plan Trustees’
meeting minutes; (b) interviewed and/or held discussions with representatives of the
Plan; (c) reviewed the Independent Appraisal Report; (d) conducted an in-person visit of

ERISA section 410 provides, in part, that “except as provided in ERISA Sections 405(b)(1) and 405(d),
any provision in an agreement or instrument which purports to relieve a fiduciary from responsibility or
liability for any responsibility, obligation, or duty under this part [meaning Part 4 of Title I of ERISA] shall
be void as against public policy.”
the Property site; (e) reviewed applicable laws and guidance; and (f) considered the Plan
Trustees’ decision-making process with respect to entering into the Lease.5
17. In a report dated October 28, 2019 (the Independent Fiduciary Report), the
Independent Fiduciary noted that the Property allows for onsite heavy equipment
operator training, which was not an option in the Plan’s former location due to space
constraints. Plus, the new location represents an upgrade in size and quality, which
should translate into better training programs. The Independent Fiduciary stated that
having the classrooms and apprenticeship/training offices in the same location as the
Chapter offices potentially improves the operation and efficiency of the training
programs because the Chapter’s oversight and resources are nearby. The Independent
Fiduciary also noted that the Plan and Chapter share an interest in providing high quality
apprenticeship and continuing training education programs because the Plan would be
able to provide excellent benefits to its participants and the Chapter would be able to use
the training programs to promote Chapter membership.
18. The Independent Fiduciary reviewed the Independent Appraiser’s specific
qualifications, including his education, prior experience, and professional licenses,
memberships, and affiliations. Based upon its review, the Independent Fiduciary
determined that the Independent Appraiser possessed the appropriate training,
experience, and facilities to provide a qualified appraisal report on behalf of the Trust
Fund regarding the subject property.
19. The Independent Fiduciary next examined the Independent Appraiser’s
independence. The Independent Fiduciary represents that it did not find any relationship
between Chapman or Cushman, or any affiliates, to the parties that would be engaging in

The Independent Fiduciary represents that the Trustees appeared to have undertaken a reasonable and
thorough process before making this decision. The Independent Fiduciary represents that the Trustees had
explored other alternatives and real estate properties in the area. Specifically, starting in year 2015 the
Trustees began searching for new facilities. The Trustees evaluated 12 real properties, comprised of six
existing buildings, three parcels of open land for building, two properties for operating engineer usage, and
the additional annex near the then current facility.
the transaction contemplated by the Lease Agreement. The Independent Fiduciary’s
review also did not reveal any other information that would call into question the
Independent Appraiser’s independence.
20. The Independent Fiduciary next determined whether the payments from the
Plan to the Chapter under the Lease would be reasonable. To do this, the Independent
Fiduciary reviewed the methodology provided by the Independent Appraiser to calculate
the fair market rent, which included comparing comparable rental properties, having
discussions with local brokers, and testing the Independent Appraiser’s conclusions
through a return on cost analysis. The Independent Fiduciary adjusted the Lease’s base
rent of $1.02 per square foot upwards by $0.07 per square foot, to account for the Plan’s
additional $2,579 monthly payments to the Reserve Fund, and determined that even with
the adjusted rate, the Lease’s adjusted monthly rent of $1.09 per square foot is less than
its appraised fair market value of $1.14 per square foot. Additionally, the Independent
Fiduciary noted in the Independent Fiduciary Report that leases in the Property’s subject
market are typically written on a triple net basis, which is consistent with the structure of
the Lease. The Independent Fiduciary stated that it also reviewed the properties and key
lease information used in the Independent Appraisal Report analysis of rental activity for
comparable space in similar properties in the Property’s subject market and found that the
selected comparable properties were appropriate and reasonably similar. The
Independent Fiduciary noted how other lease terms, such as rent escalation clauses,
duration, and tenant improvement allowances, contained in the comparable leases that the
Independent Appraiser identified compared to those in the Lease. For the reasons set
forth above, the Independent Fiduciary determined that the arrangements provided under
the Lease are necessary for the operation of the Plan and that the compensation to be paid
by the Plan to the Chapter is reasonable. It also determined that entering into the Lease
was reasonable, prudent, and in the Plan’s interest.

21. On July 28, 2020, the Independent Fiduciary issued an addendum and
supplement to the Independent Fiduciary Report. In the addendum, the Independent
Fiduciary agreed to perform the following additional duties on behalf of the Plan: (a)
monitor the terms of this exemption, if granted, on an ongoing basis and take all actions
that are necessary and proper to enforce the Plan’s rights under the Lease to protect the
Plan’s participants and beneficiaries; (b) review and approve the material terms and
conditions of the Lease and make any adjustments thereto; (c) engage the Independent
Appraiser and/or other service providers as they reasonably determine to be necessary;
(d) monitor the Lease, including during any subsequent renewal period; and (e) ensure
that all conditions of this exemption, if granted, are met. The obligations in the
addendum have been subsumed into the Independent Fiduciary’s duties below.
22. The proposed exemption requires the Independent Fiduciary to engage a
qualified independent appraiser to perform an independent appraisal of the Property
following the beginning date of the Lease, on a periodic basis as prudence requires, to
ensure the Plan does not pay more than fair market value under the Lease. The
Independent Fiduciary must regularly evaluate the prudence of the Plan’s continued
participation in the Lease and ensure that participation in the Lease remains in the interest
of and protective of the interests of the Plan’s participants. The Plan’s ongoing
participation in the Lease requires the ongoing approval and consent of the Independent
Fiduciary. The Independent Fiduciary is responsible for the selection of the independent
appraiser, the frequency of appraisals, and the assessment of the reliability of the
appraisals in determining fair market value. The Plan may continue to participate in the
Lease during any period only to the extent the Independent Fiduciary has affirmatively
determined that participation in the Lease remains in the interest of and protective of the
Plan and its participants and beneficiaries. The amounts that the Plan has paid or will
continue to pay under the Lease may not exceed fair market value.

23. In the July 28, 2020, supplement to the Independent Fiduciary Report, the
Independent Fiduciary stated that the Plan needed more space to comply with social
distancing requirements and guidelines in the COVID-19 environment and to enable the
Plan to offer sufficient classes in a manner compliant with State Division of
Apprenticeship Standards Guidelines. In the supplement, the Independent Fiduciary
confirmed that the Plan’s entering into the Lease was reasonable, prudent, and in the
interest of the Plan.
24. On October 1, 2020, the Independent Appraiser conducted another appraisal
of the Property and determined that the Property’s fair market rental value under the
Lease was $48,890 per month as of that date.6 The Plan moved into the Building on the
same day, stating that it urgently needed larger space due to the COVID-19 health
pandemic. On January 14, 2022, the Independent Fiduciary represented to the
Department that for the period beginning on October 1, 2020, the terms of the Lease,
including the base monthly rent of $40,000 per month, are in the interest of, and
protective of, the Plan and its participants and beneficiaries, and reflect a below fair
market rent for the subject premises.
Other Duties of the Independent Fiduciary
25. The Independent Fiduciary must ensure that the Lease is in the interest and
protective of the Plan and its participants and beneficiaries, including with respect to any
amendment or renewal of the Lease. Further, the Independent Fiduciary must take all
necessary and proper steps to ensure that the Plan and its participants and beneficiaries
are protected in connection with the Lease, including by approving any amendment or
renewal thereof, and beginning on the day that the notice of exemption is published in the
Federal Register, the Independent Fiduciary must ensure that the Plan’s total payments
under the Lease during a twelve (12) month period do not exceed ten (10) percent of the

This determination is set forth in the Independent Appraiser’s written report, dated December 16, 2021.

Plan’s total assets as reflected in the most recently issued report from the independent
accounting firm responsible for auditing the Plan’s financial statements.
In order to ensure that the Lease and its terms continue to be in the interest of
participants and beneficiaries of the Plan, this proposal requires the Independent
Fiduciary to give prior written notice to the Department’s Office of Exemption
Determinations at least 60 days before the Lease is amended, modified, or extended,
unless such delay would cause imminent harm to the Plan in which case the notice must
be provided immediately. The notification must include a complete description of the
amendment, modification, or extension, including all material terms.7 Additionally, the
Independent Fiduciary must notify the Chapter of the Plan’s intention to extend the Lease
beyond the initial 10-year term, and any subsequent renewal must not exceed five-years.
The Independent Fiduciary, while acting on the Plan’s behalf with respect to the
Lease, must not be directly or indirectly controlled by or through one or more
intermediaries, or under common control with either the Chapter, the Plan, or any related
employers’ members.
26. The Independent Fiduciary has not entered into and must not enter into any
agreement or instrument that violates either ERISA Section 410 or the Department’s
Regulations codified at §2509.75-4;8 and has not entered and must not enter into any
agreement, arrangement, or understanding that includes any provision that provides for
the direct or indirect indemnification or reimbursement of the Independent Fiduciary by
the Plan or other party for any failure to adhere to its contractual obligations or to state or
Federal laws applicable the Independent Fiduciary‘s work, or that waives any rights,

Because the proposed exemption provides retroactive exemptive relief, within 60 days of the date of
publication of the notice of exemption in the Federal Register (the Publication Date), the Independent
Fiduciary will provide a summary of all amendments, modifications, or extensions of the Lease made
between October 1, 2020, and the Publication Date.
8 ERISA section 410 provides, in part, that “except as provided in ERISA Sections 405(b)(1) and 405(d),
any provision in an agreement or instrument which purports to relieve a fiduciary from responsibility or
liability for any responsibility, obligation, or duty under this part [meaning Part 4 of Title I of ERISA] shall
be void as against public policy.”
claims, or remedies of the Plan under ERISA, state, or Federal law against the
Independent Fiduciary with respect to the transaction(s) that are the subject of the
exemption.
Other Lease Terms
27. The Lease defines the formula to be used in determining the Base Rent
annual increases as follows:
“Beginning on the date that is one (1) year after the Commencement Date
[Lease’s start date], and on each successive one-year anniversary thereof
(each an ‘Adjustment Date’) throughout the [t]erm, the Base Rent shall be
increased by the amount of increase in the CPI…[s]uch increase shall be
calculated by multiplying the then-current Base Rent by a fraction, the
numerator of which shall be the CPI for the Adjustment Date and the
denominator of which shall be the CPI for the previous Adjustment Date
(or the CPI for the Commencement Date in case of the adjustment for the
first Adjustment Date). If there is no increase in CPI, or a decrease in CPI,
the Base Rent shall remain unchanged.”9
28. Notwithstanding the Lease’s CPI Base Rent annual increases provision
discussed above, and as further described below, the Independent Fiduciary must ensure
that the total amount paid by the Plan in connection with the Lease does not exceed the
fair market rental value.
29. In addition to the Base Rent, the Lease requires the Plan to pay certain
operating expenses (the Operating Expenses).10 The Operating Expenses are subject to

CPI means the Consumer Price Index; the Department’s Bureau of Labor Statistics publishes the CPI. The
Lease also provides that “…[t]he CPI for any Adjustment Date shall be the CPI for the most recent month
for which it is published before the Adjustment Date (or before the Commencement Date, as the case may
be).” The Department understands such Base Rent increase calculation to mean that the Base Rent may
increase annually based on the published CPI for the applicable period.
10 The Lease defines Operating Expenses as additional rent for costs that the Chapter incurs, which include
the following: (1) operation, repair, maintenance, and replacement of the common areas; (2) trash disposal,
both an annual reconciliation process (the Annual Reconciliation) and to the Plan’s
exercise of audit rights, because of the Building’s 90/10 allocation ratio between the Plan
and the Chapter, respectively. The computation of the Operating Expenses must be made
in accordance with fair and reasonable accounting principles customarily applied by
owners of similar properties located in San Diego, California.11
30. The Lease requires both the Plan and the Chapter to make monthly payments
into a Capital Replacement Reserve Fund (the Reserve Fund); both the Plan and the
Chapter must pay their pro rata monthly amount to the Reserve Fund based on their space
utilization under the Lease–the Chapter must pay $136 per month for occupying 4,485
square feet while the Plan must pay $2,579 per month for occupying 39,115 square feet.12
The Reserve Fund’s monthly amounts will remain the same throughout the Lease’s
duration, including extensions.
31. The Reserve Fund is intended to segregate payments for future replacement
needs and its calculations are based on reasonable life expectancy13 and anticipated
replacement costs of the Reserve Fund Items; as such, the Reserve Fund is not subject to
the Annual Reconciliation provision.

janitorial and security services; (3) any service provided by the Chapter that is an operating expense under
the Lease; (4) the cost of the premiums for the liability and property insurance policies required to be
maintained by the Chapter under the Lease; (5) the cost of water, sewer, gas, electricity, solar panels, and
other publicly mandated services; (6) labor, salaries and applicable fringe benefits and costs, materials,
supplies and tools, used in maintaining and/or cleaning the premises, and accounting and management fees
attributable to the operation of the premises; (7) replacing and/or adding improvements mandated by any
governmental agency and any repairs or removals necessitated thereby; (8) replacements of equipment or
improvements, as amortized over such equipment or improvements’ useful life for depreciation purposes
according to federal income tax guidelines; (9) reserves set aside for maintenance, repair and/or
replacement of common area improvements and equipment as set forth in the Lease’s Addendum ; (10)
environmental damages and earthquake coverage to the extent not recovered by Chapter directly from any
tenants; and (11) all taxes, assessments and charges levied on or with respect to the facility, or any personal
property of the Chapter used in the operation thereof and payable by the Chapter.
11 The Independent Fiduciary’s duties include reviewing and approving the Lease’s Operating Expenses
provisions.
12 As noted above, the Independent Fiduciary determined that these payments had the effect of adjusting the
Lease’s base rent of $1.02 per square foot upward by $0.07 per square foot.
13 The Lease provides a life cycle costs analysis for the Reserve Fund Items, which considers all costs of
acquiring, operating, maintaining, and disposing of a building component or system.

32. The Reserve Fund may only be used for the replacement of certain items
(such as roofing, doors, frames and hardware, flooring, asphalt and concrete paving and
resealing, fencing and gates, etc.) that are listed in the Lease’s addendum, and the
Reserve Fund may not be used for any other purpose unless agreed to by both the Chapter
and the Plan, subject to the Independent Fiduciary’s approval.14
33. Further, the Lease requires the Chapter to keep the Property, including
interior and exterior walls, roof, and common areas, in good condition and repair except
that the Plan is responsible for day-to-day maintenance and repairs to the interior of its
allocated rented space to the extent such cost is attributable to causes beyond normal
wear and tear. The Lease requires the Chapter to keep the moneys in the Reserve Fund in
a restricted account that may not be used for any purpose other than to fund the
replacement of the items described above. Amounts paid by the Plan into the Reserve
Fund constitute a portion of the Plan’s overall consideration paid to the landlord, and
once the amounts are paid into the Reserve Fund, the Plan has no legal right to such
amounts beyond what is described in the Lease. The Lease’s termination ends the Plan’s
right under the Lease. 15
Exemptive Relief Requested and Analysis
34. Absent an administrative exemption, the Lease would violate ERISA
Sections 406(a)(1)(A) and (D) and 406(b)(2). ERISA Section 406(a)(1)(A) prohibits the
sale, exchange, or lease, of any property between a plan and a party in interest. The
Chapter is a party in interest with respect to the Plan under ERISA Section 3(14)(D)

The Reserve Fund includes the following additional items: backflow preventers on site utilities; casework
and countertops; sheet metal, caulking, joint sealants; roofing maintenance and re-roofing; doors, frames,
and hardware; operable walls in classroom; coiling service doors; glass and glazing storefront system;
ceramic tile; flooring carpet replacement and base; paint and coatings; elevator; plumbing; HVAC
equipment; electrical and site lighting; and fire alarm and security system.
15 As described in more detail above, the Independent Fiduciary determined that the aforementioned Lease
terms, including the Reserve Fund provision, were prudent, and in the interest of the Plan. Moreover, this
proposed exemption prohibits the Plan’s participants from paying any Plan operating expenses, including
amounts paid into the Reserve Fund.
because it is an employee organization whose members are covered by the Plan.
Therefore, the Lease would violate ERISA section 406(a)(1)(A).
35. Additionally, ERISA section 406(a)(1)(D) prohibits the transfer to or use of
any plan assets by or for the benefit of a party in interest of a plan. Because the Lease
requires monthly cash payments from the Plan’s assets to the Chapter, the payments
would be considered a transfer of Plan assets to a party in interest in violation of ERISA
section 406(a)(1)(D).
36. Finally, the Lease would violate ERISA section 406(b)(2), which prohibits a
plan fiduciary acting in their individual capacity or in any other capacity in a transaction
involving the plan on behalf of a party (or representing a party) whose interests are
adverse to the interests of the plan or its participants or beneficiaries. Because both the
Trustees and the Board are comprised of individuals representing participating employers
who are the Chapter’s members, these individuals are involved on both sides of the Lease
in violation of ERISA Section 406(b)(2).
Conditions for Exemptive Relief.16
37. In addition to the protections described above, the Plan’s participants must
not pay any of the Plan’s operating expenses. The terms and conditions of the Lease
must be at least as favorable to the Plan as those that the Plan could obtain in a
comparable lease from an unrelated party in an arm’s-length transaction. If granted, this
exemption will not cover any type of service that is otherwise covered under an
administrative class exemption or a statutory exemption of ERISA, such as ERISA
section 408(b)(2).
38. In the event that the Independent Fiduciary retains an Independent Appraiser
in connection with the Lease, such Independent Appraiser must not have entered into,

The Department notes that this is a summary of the conditions intended for the convenience of a reader;
however, the governing conditions for the Proposed Transaction are those reflected in section II of the
proposed exemption.
and must not enter into, any agreement, arrangement, or understanding that includes any
provision that provides for the direct or indirect indemnification or reimbursement of the
Independent Appraiser by the Plan or any other party for any failure to adhere to its
contractual obligations or to state or Federal laws applicable to the Independent
Appraiser’s work, or that waives any rights, claims or remedies of the Plan or its
participants and beneficiaries under ERISA, the Code, or other Federal and state laws
against the Independent Appraiser with respect to the transaction(s) that are the subject of
the exemption.
39. Finally, this proposed exemption would require the Plan to adhere to the
material facts and representations described in the proposed exemption and set forth in
the exemption application, including the Plan’s representations made pursuant to the
Department’s Regulations codified in 29 CFR 2570.34-35.
Statutory Findings
40. ERISA Section 408(a) provides, in part, that the Department may not grant
an exemption unless the Department finds that the exemption is administratively
feasible, in the interest of affected plans and of their participants and beneficiaries, and
protective of the rights of such plan and its participants and beneficiaries, which
criteria are discussed below.
a. The Proposed Exemption Is “Administratively Feasible.” The Department has
tentatively determined that the proposed exemption is administratively feasible because,
among other things, the Independent Fiduciary must represent the Plan for all purposes
relating to the proposed transaction. This representation includes: reviewing and
approving the Lease terms and conditions; and ensuring that the Plan’s entering into the
Lease and continuation of the Lease, including any amendment to or renewal thereof, is
reasonable, prudent, and in the interests of, the Plan and its participants and beneficiaries.

b. The Proposed Exemption Is “In the Interests of the Plan.” The Department
has tentatively determined that the proposed exemption is in the Plan’s interest because
the Lease permits the Plan to rent a modern facility located in a central location with
updated equipment that can accommodate a large group of apprentices for an amount not
exceeding fair market value.
c. The Proposed Exemption Is “Protective of the Plan.” The Department has
tentatively determined that the proposed exemption is protective of the rights of the Plan
and its participants, and beneficiaries, because the Independent Fiduciary must represent
the Plan’s interests for all purposes with respect to the Lease in accordance with ERISA’s
fiduciary duties of prudence and loyalty, including prudently monitoring the terms of the
Lease on an ongoing basis and ensuring that the protective conditions of the exemption
are fully met.
Notice to Interested Persons
Notice of the proposed exemption will be given to all Interested Persons within 15
days of the publication of the notice of proposed exemption in the Federal Register, by
first class U.S. mail, to the last known address of all such individuals. The notice will
contain a copy of the notice of proposed exemption, as published in the Federal Register,
and a supplemental statement, as required pursuant to 29 CFR 2570.43(a)(2). The
supplemental statement will inform interested persons of their right to comment on the
pending exemption. Written comments are due within 45 days of the publication of the
notice of proposed exemption in the Federal Register. All comments will be made
available to the public.
Warning: If you submit a comment, the Department recommends that you
include your name and other contact information in the body of your comment, but DO
NOT submit information that you consider to be confidential, or otherwise protected
(such as a Social Security number or an unlisted phone number) or confidential business

information that you do not want publicly disclosed. All comments may be posted on the
Internet and can be retrieved by most Internet search engines.
General Information
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under ERISA section
408(a) does not relieve a fiduciary or other party in interest or disqualified person from
certain other provisions of ERISA and/or the Code, including any prohibited transaction
provisions to which the exemption does not apply and the general fiduciary responsibility
provisions of ERISA section 404, which, among other things, require a fiduciary to
discharge their duties respecting the plan solely in the interest of the participants and
beneficiaries of the plan and in a prudent fashion in accordance with ERISA section
404(a)(1)(b); nor does it affect the requirement of Code section 401(a) that the plan must
operate for the exclusive benefit of the employees of the employer maintaining the plan
and their beneficiaries;
(2) Before an exemption may be granted under ERISA section 408(a) and/or Code
section 4975(c)(2), the Department must find that the exemption is administratively
feasible, in the interests of the plan and of its participants and beneficiaries, and
protective of the rights of participants and beneficiaries of the plan;
(3) The proposed exemption, if granted, will be supplemental to, and not in
derogation of, any other provisions of ERISA and/or the Code, including statutory or
administrative exemptions and transitional rules. Furthermore, the fact that a transaction
is subject to an administrative or statutory exemption is not dispositive of whether the
transaction is in fact a prohibited transaction; and
(4) The proposed exemption, if granted, will be subject to the express condition
that the material facts and representations contained in each application are true and

complete at all times, and that each application accurately describes all material terms of
the transaction which is the subject of the exemption.
Proposed Exemption
SECTION I. COVERED TRANSACTION
If the proposed exemption is granted, the restrictions of ERISA sections
406(a)(1)(A), (D), and 406(b)(2) shall not apply, effective October 1, 2020, to the leasing
of office, classroom, and training facilities (the Lease) located on an improved parcel of
real property (the Property) by the Associated General Contractors of America, San Diego
Chapter, Inc. Apprenticeship and Training Fund (the Plan) from the Associated General
Contractors of America, San Diego Chapter, Inc. (the Chapter), to provide construction
trade apprenticeship training to Plan participants, as long as the conditions set forth in
section II are met.
SECTION II. GENERAL CONDITIONS
(a) The Plan has paid, and will continue to pay, no more than the fair market
rental value in connection with the Lease;
(b) The Plan’s participants do not contribute to the Plan;
(c) A qualified independent fiduciary (the Independent Fiduciary) represents the
Plan’s interests in all respects to the Lease, including by approving the Lease and, if
warranted, any amendment to or renewal of the Lease. Additionally, the Independent
Fiduciary, acting on the Plan’s behalf with respect to the Lease:
(1) Must not be directly or indirectly controlled by or through one or more
intermediaries, or under common control with either the Chapter, the Plan, or any related
employers’ members;
(2) Reviewed the Lease, including the terms and conditions, and
determined that the Lease was reasonable and in the interest of and protective of the Plan

and its participants and beneficiaries in accordance with ERISA’s fiduciary duties of
prudence and loyalty;
(3) Confirmed that the initial base rent did not exceed the current fair
market rental value of the Property by reviewing an appraisal performed by a qualified
independent appraiser (the Independent Appraiser) both when the Plan entered into the
Lease, and when the Plan began occupying the Property;
(4) Determined in advance of the Plan’s entering into the lease for the
Property, that the Lease is reasonable, prudent, in the interest of, and protective of the
Plan and its participants and beneficiaries in accordance with ERISA’s fiduciary duties of
prudence and loyalty;
(5) Must engage a qualified independent appraiser to perform an
independent appraisal of the Property following the beginning date of the Lease, on a
periodic basis as prudence requires, to ensure the Plan does not pay more than fair market
value under the Lease. The Independent Fiduciary is responsible for the selection of the
Independent Appraiser, the frequency of appraisals, and the assessment of the reliability
of the appraisals in determining fair market value;
(6) Must regularly evaluate the prudence of the Plan’s continued
participation in the Lease and ensure that participation in the Lease remains in the interest
of and protective of the interests of the Plan’s participants;
(7) Must monitor the parties’ compliance with the terms and conditions of
the exemption, if granted, and take all necessary and proper steps to ensure that the Plan
and its participants and beneficiaries are completely protected throughout the Lease’s
term and any related transactions (including any renewal thereof);
(8) Must review and approve the Lease’s operating expenses on an
ongoing basis, including but not limited to ensuring that the Plan undergoes both an

annual reconciliation for such accrued expenses and it exercises its audit rights when
prudently needed.
(9) Must give prior written notice to the Chapter of the Plan’s intention to
extend the Lease beyond the initial 10-year term;
(10) Has not entered into and must not enter into any agreement or
instrument that violates either ERISA section 410, or the Department’s Regulations
codified at 29 CFR 2509.75-4;17 and
(11) Has not entered into and must not enter into any agreement,
arrangement, or understanding that includes any provision that provides for the direct or
indirect indemnification or reimbursement of the Independent Fiduciary by the Plan or
other party for any failure to adhere to its contractual obligations or to state or Federal
laws applicable to the Independent Fiduciary’s work, or that waives any rights, claims, or
remedies of the Plan under ERISA, state, or Federal law against the Independent
Fiduciary with respect to the transaction(s) that are the subject of the exemption;
(d) The Plan’s ongoing participation in the Lease requires the continuing
approval and consent of the Independent Fiduciary and the Plan may continue to
participate in the Lease during any period only to the extent the Independent Fiduciary
has affirmatively determined that participation in the Lease remains in the interest of and
protective of the Plan and its participants and beneficiaries;
(e) Any adjustments to the base rent under the Lease must be linked to the
Consumer Price Index for All Urban Consumers for the San Diego, California area, as
published by the Department’s Bureau of Labor Statistics;

ERISA section 410 provides, in part, that “except as provided in ERISA Sections 405(b)(1) and 405(d),
any provision in an agreement or instrument which purports to relieve a fiduciary from responsibility or
liability for any responsibility, obligation, or duty under this part [meaning Part 4 of ERISA] shall be void
as against public policy.”
(f) Any renewal of the Lease’s initial 10-year term must be made solely at the
Plan’s discretion subject to approval by the Independent Fiduciary and if the Lease is
renewed, the Lease term must not exceed five-years;
(g) The Independent Appraiser must not have entered into, and must not enter
into, any agreement, arrangement, or understanding that includes any provision that
provides for the direct or indirect indemnification or reimbursement of the Independent
Appraiser by the Plan or any other party for any failure to adhere to its contractual
obligations or to state or Federal laws applicable to the Independent Appraiser’s work, or
that waives any rights, claims or remedies of the Plan or its participants and beneficiaries
under ERISA, the Code, or other Federal and state laws against the Independent
Appraiser with respect to the transaction(s) that are the subject of the exemption;
(h) The exemption does not cover any type of service that is otherwise covered
under an administrative class exemption or a statutory exemption from ERISA’s
prohibited transaction provisions;
(i) Beginning on the day that the notice of exemption is published in the Federal
Register, the Plan’s total payments under the Lease during any given twelve (12) month
period must not exceed ten (10) percent of the Plan’s total assets as reflected in the most
recently issued report from the independent accounting firm that audited the Plan’s
financial statements;
(j) The terms and conditions of the Lease are at least as favorable to the Plan as
those which the Plan could obtain in a comparable lease from an unrelated party in an
arm’s-length transaction;
(k) All of the material facts and representations set forth in the Summary of Facts
and Representations are true and accurate; and
(l) Within 60 days of the date of publication of the notice of exemption in the
Federal Register (the Publication Date), the Independent Fiduciary will provide a

summary of all amendments, modifications, or extensions of the Lease made between
October 1, 2020, and the Publication Date. After the Publication Date, on an ongoing
basis, the Independent Fiduciary must inform the Department’s Office of Exemption
determinations if the Lease is amended, modified, or extended at least 60 days before the
amendment, modification, or extension unless such delay would cause imminent harm to
the Plan in which case the notice must be provided immediately. The notification must
include a complete description of the amendment, modification, or extension, including
all material terms thereof.
Exemption Date: The proposed exemption would be effective October 1, 2020.
Signed at Washington, DC, this 16th day of July 2024.
George Christopher Cosby,
Director, Office of Exemption Determinations, Employee Benefits Security
Administration, U.S. Department of Labor.

[FR Doc. 2024-16035 Filed: 7/19/2024 8:45 am; Publication Date: 7/22/2024]