Loading...
HomeMy WebLinkAboutResolution No. 4311 RESOLUTION NO. 4311 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DOWNEY AMENDING THE EXISTING ICMA DEFERRED COMPENSATION PLAN, A VOLUNTARY PROGRAM OFFERED TO CITY OF DOWNEY EMPLOYEES THE CITY COUNCIL OF THE CITY OF DOWNEY DOES HEREBY RESOLVE AS FOLLOWS: WHEREAS, the City of Downey maintains a deferred compensation plan for its employees which is administered by the ICMA Retirement Corporation (the "Administrator "); and WHEREAS, the Administrator has recommended changes in the plan document to comply with recent federal legislation and Internal Revenue Service Regulations governing said plans; and WHEREAS, the Internal Revenue Service has issued a private letter ruling approving said plan document as complying with Section 457 of the Internal Revenue Code; and WHEREAS, other public employers have joined together to establish the ICMA Retirement Trust for the purpose of representing the interests of the par- ticipating employers with respect to the collective investment of funds held under their deferred compensation plans; and WHEREAS, said Trust is a salutary development which further advances the quality of administration for plans administered by the ICMA Retirement Corporation; NOW, THEREFORE, BE IT RESOLVED that the City of Downey hereby adopts the deferred compensation plan, attached hereto as Appendix A, as an amendment and restatement of its present deferred compensation plan administered by the ICMA Retirement Corporation, which shall continue to act as Administrator of said plan; and BE IT FURTHER RESOLVED that the City of Downey hereby executes the ICMA Retirement Trust, attached hereto as Appendix B; and BE IT FURTHER RESOLVED that the City of Downey hereby adopts the trust agreement with the ICMA Retirement Corporation, as appears at Appendix C hereto, as an amendment and restatement of its existing trust agreement with the ICMA Retirement Corporation, and directs the ICMA Retirement Corporation, as Trustee, to invest all funds held under the deferred compensation plan through the ICMA Retirement Trust as soon as is practicable; and BE IT FURTHER RESOLVED that the Administrative Services Director shall be the coordinator for this program and shall receive necessary reports, notices, etc., from the ICMA Retirement Corporation as Administrator, and shall cast, on behalf of the City of Downey, any required votes under the program. Administrative duties to carry out the plan may be assigned to the appropriate departments. The City Clerk shall certify to the adoption of this Resolution. APPROVED AND ADOPTED THIS llth day o f October , 1983. f ,. r 4 l f t _ - Mayor A'1'1'EST : 7 Ar 1/ " City Clerk I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the City Council of the City of Downey at a regular meeting thereof, held on the 11th day of October , 1983, by the following vote, to wit: AYES: 3 Council Members: Barb, Davila, Cormack NOES: 0 Council Members: 2// ABSENT: 2 Council Members: Jackman, Quinn City Clerk i APPENDIX A ( "EMPLOYER ") DEFERRED COMPENSATION PLAN 1. INTRODUCTION include any amount excludable from gross income under this The Employer hereby establishes the Employer's Deferred Plan or any other plan described in section 457(b) of the Compensation Plan, hereinafter referred to as the "Plan." The Plan Internal Revenue Code, any amount excludable from gross consists of the provisions set forth in this document. income under section 403(b) of the Internal Revenue Code, The primary purpose of this Plan is to provide retirement income or any other amount excludable from gross income for and other deferred benefits to the Employees of the Employer in federal income tax purposes. Includible Compensation shall accordance with the provisions of section 457 of the Internal be determined without regard to any community property Revenue Code of 1954, as amended. laws. This Plan shall be an agreement solely between the Employer 2.07 Joinder Agreement: An agreement entered into between an and participating Employees. Employee and the Employer, including any amendments or modifications thereof. Such agreement shall fix the amount II. DEFINITIONS of Deferred Compensation, specify a preference among the 2.01 Account: The bookkeeping account maintained for each investment alternatives designated by the Employer, Participant reflecting the cumulative amount of the designate the Employee's Beneficiary or Beneficiaries, and Participant's Deferred Compensation, including any income, incorporate the terms, conditions, and provisions of the Plan gains, losses, or increases or decreases in market value by reference. attributable to the Employer's investment of the Participant's 2.08 Normal Compensation: The amount of compensation which Deferred Compensation, and further reflecting any distribu- would be payable to a Participant by the Employer for a tions to the Participant or the Participant's Beneficiary and taxable year if no Joinder Agreement were in effect to defer any fees or expenses charged against such Participant's compensation under this Plan. Deferred Compensation. 2.09 Normal Retirement Age: Age 70, unless the Participant has 2.02 Administrator: The person or persons named to carry out elected an alternate Normal Retirement Age by written certain nondiscretionary administrative functions under the instrument delivered to the Administrator prior to Separation Plan, as hereinafter described. The Employer may remove from Service. A Participant's Normal Retirement Age any person as Administrator upon 60 days advance notice in determines (a) the latest time when benefits may commence writing to such person, in which 'case the Employer shall under this Plan (unless the Participant continues employ- name another person or persons to act as Administrator. The ment after Normal Retirement Age), and (b) the period during Administrator may resign upon 60 days advance notice in which a Participant may utilize the catch -up limitation of writing to the Employer, in which the case the Employer shall Section 5.02 hereunder. Once a Participant has to any extent name another person or persons to act as Administrator. utilized the catch -up limitation of Section 5.02, his Normal Retirement Age may not be changed. 2.03 Beneficiary: The person or persons designated by the A Participant's alternate Normal Retirement Age may not Participant in his Joinder Agreement who shall receive any be earlier than the earliest date that the Participant will benefits payable hereunder in the event of the Participant's become eligible to retire and receive unreduced retirement death. benefits under the Employer's basic retirement plan covering 2.04 Deferred Compensation: The amount of Normal Compensa- the Participant and may not be later than the date the tion otherwise payable to the Participant which the Participant attains age 70. If a Participant continues Participant and the Employer mutually agree to defer employment after attaining age 70, not having previously hereunder, any amount credited to a Participant's Account by elected an alternate Normal Retirement Age, the Participant's reason of a transfer under Section 6.03, or any other amount alternate Normal Retirement Age shall not be later than the which the Employer agrees to credit to a Participant's mandatory retirement age, if any, established by the Account. Employer, or the age at which the Participant actually separates from service if the Employer has no mandatory 2.05 Employee: Any individual who provides services for the retirement age. If the Participant will not become eligible to Employer, whether as an employee of the Employer or as an receive benefits under a basic retirement plan maintained by independent contractor, and who has been designated by the Employer as eligible to participate in the Plan. the Employer, the Participant's alternate Normal Retirement Age may not be earlier than attainment of age 55 and may not 2.06 Includible Compensation: The amount of an Employee's be later than attainment of age 70. compensation from the Employer for a taxable year that is attributable to services performed for the Employer and that 2.10 Participant: Any Employee who has joined the Plan pursuant is includible in the Employee's gross income for the taxable to the requirements of Article IV. year for federal income tax purposes; such term does not 2.11 Plan Year: The calendar year. 1 2.12 Retirement: The first date upon which both of the following plan). For purposes of this Section 5.02, a Participant's shall have occurred with respect to a Participant: Separation Includible Compensation for the current taxable year shall be from Service and attainment of Normal Retirement Age. deemed to include any Deferred Compensation for the 2.13 Separation from Service: Severance of the Participant's taxable year in excess of the amount permitted under the employment with the Employer. A Participant shall be Normal Limitation, and the Participant's Includible Compen- deemed to have severed his employment with the Employer sation for any prior taxable year shall be deemed to exclude for purposes of this Plan when, in accordance with the any amount that could have been deferred under the Norma'"" established practices of the Employer, the employment Limitation for such prior taxable year. relationship is considered to have actually terminated. In the 5.03 Section 403(b) Annuities: For purposes of Sections 5.01 anc case of a Participant who is an independent contractor of the 5.02, amounts contributed by the Employer on behalf of z Employer, Separation from Service shall be deemed to have Participant for the purchase of an annuity contract described occurred when the Participant's contract under which in section 403(b) of the Internal Revenue Code shall be services are performed has completely expired and treated as if such amounts constituted Deferred Compensa- terminated, there is no foreseeable possibility that the tion under this Plan for the taxable year in which the Employer will renew the contract or enter into a new contract contribution was made and shall thereby reduce the for the Participant's services, and it is not anticipated that the maximum amount that may be deferred for such taxable year. Participant will become an Employee of the Employer. VI. INVESTMENTS AND ACCOUNT VALUES III. ADMINISTRATION 6.01 Investment of Deferred Compensation: All investments of 3.01 Duties of Employer: The Employer shall have the authority to Participants' Deferred Compensation made by the Employer, make all discretionary decisions affecting the rights or including all property and rights purchased with such benefits of Participants which may be required in the amounts and all income attributable thereto, shall be the sole administration of this Plan. property of the Employer and shall not be held in trust for Participants or as collateral security for the fulfillment of the 3.02 Duties of Administrator: The Administrator, as agent for the Employer's obligations under the Plan. Such property shall Employer, shall perform nondiscretionary administrative be subject to the claims of general creditors of the Employer, functions in connection with the Plan, including the and no Participant or Beneficiary shall have any vested maintenance of Participants' Accounts, the provision of interest or secured or preferred position with respect to such periodic reports of the status of each Account and the property or have any claim against the Employer except as a disbursement of benefits on behalf of the Employer in general creditor. accordance with the provisions of this Plan. 6.02 Crediting of Accounts: The Participant's Account shall reflect the amount and value of the investments or other property IV. PARTICIPATION IN THE PLAN obtained by the Employer through the investment of the Participant's Deferred Compensation. It is anticipated that 4.01 Initial Participation: An Employee may become a Participant the Employer's investments with respect to a Participant will by entering into a Joinder Agreement prior to the beginning conform to the investment preference specified in the,.., of the calendar month in which the Joinder Agreement is to Participant's Joinder Agreement, but nothing herein shall be become effective to defer compensation not yet earned. construed to require the Employer to make any particular 4.02 Amendment of Joinder Agreement: A Participant may amend investment of a Participant's Deferred Compensation. Each an executed Joinder Agreement to change the amount of Participant shall receive periodic reports, not less frequently compensation not yet earned which is to be deferred than annually, showing the then - current value of his (including the reduction of such future deferrals to zero) or to Account. change his investment preference (subject to such restric- tions as may result from the nature or terms of any investment 6.03 Acceptance of Transfers: Pursuant to an appropriate written made by the Employer). Such amendment shall become agreement, the Employer may accept and credit to a effective as of the beginning of the calendar month Participant's Account amounts transferred from another commencing after the date the amendment is executed. A employer within the same State representing amounts held Participant may at any time amend his Joinder Agreement to by such other employer under an eligible State deferred change the designated Beneficiary and such amendment compensation plan described in section 457 of the Internal shall become effective immediately. Revenue Code. Any such transferred amount shall not be treated as a deferral subject to the limitations of Article V, V. LIMITATIONS ON DEFERRALS provided however. that the actual amount of any deferral 5.01 Normal Limitation: Except as provided in Section 5.02, the under the plan from which the transfer is made shall be taken maximum amount of Deferred Compensation for any into account in computing the catch-up limitation under Participant for any taxable year shall not exceed the lesser of Section 5.02. $7,500.00 or 33 1/3 percent of the Participant's Includible 6.04 Employer Liability: In no event shall the Employer's liability to Compensation for the taxable year. This limitation will pay benefits to a Participant under Article VI exceed the value ordinarily be equivalent to the lesser of $7,500.00 or 25 of the amounts credited to the Participant's Account: the percent of the Participant's Normal Compensation. Employer shall not be liable for losses arising from 5.02 Catch -up Limitation: For each of the last three (3) taxable depreciation or shrinkage in the value of any investments years of a Participant ending before his attainment of Normal acquired under this Plan. Retirement Age, the maximum amount of Deferred Compensation shall be the lesser of: (1) $15,000 or (2) the VII. BENEFITS sum of (i) the Normal Limitation for the taxable year, and (ii) that portion of the Normal Limitation for each of the prior 7.01 Retirement Benefits and Election on Separation from taxable years of the Participant commencing after 1978 Service: Except as otherwise provided in this Article VII, theme during which the Plan was in existence and the Participant distribution of a Participant's Account shall commence was eligible to participate in the Plan (or in any other plan during the second calendar month after the close of the Plan established under section 457 of the Internal Revenue Code Year of the Participant's Retirement, and the distribution of by an employer within the same State as the Employer) less such Retirement benefits shall be made in accordance with the amount of Deferred Compensation for each such prior one of the payment options described in Section 7.02. taxable year (including amounts deferred under such other Notwithstanding the foregoing, the Participant may irrevo- 2 ti APPENDIX B DECLARATION OF TRUST of ICMA RETIREMENT TRUST ARTICLE I. Name and Definitions ARTICLE 11. Creation and Purpose of the Trust; Ownership of Trust Property SECTION 1.1. Name. The Name of the Trust created hereby is the SECTION 2.1. Creation. The Retirement Trust is created and ICMA Retirement Trust. established by the execution of this Declaration of Trust by the Trustees • SECTION 1.2. Definitions. Wherever they are used herein, the and the participating Public Employers. following terms shall have the following respective meanings: SECTION 2.2. Purpose. The purpose of the Retirement Trust is to (a) By -Laws. The By -Laws referred to in Section 4.1 hereof, as provide for the commingled investment of funds held by the Public amended from time to time. Employers in connection with their Deferred Compensation Plans. The (b) Deferred Compensation Plan. A deferred compensation plan Trust Property shall be invested in the Portfolios, in Guaranteed established and maintained by a Public Employerforthe purpose Investment Contracts and in other investments recommended by the of providing retirement income and other deferred benefits to its Investment Adviser under the supervision of the Board of Trustees. employees in accordance with the provisions of section 457 of SECTION 2.3 Ownership of Trust Property. The Trustees shall have the Internal Revenue Code of 1954. as amended. legal title to the Trust Property. The Public Employers shall be the (c) Guaranteed Investment Contract. A contract entered into by beneficial owners of the Trust Property. the Retirement Trust with insurance companies that provides for a guaranteed rate of return on investments made pursuant to such contract. ARTICLE III. Trustees (d) ICMA. The International City Management Association. SECTION 3.1. Number and Qualification of Trustees. (e) ICMA /RC Trustees. Those Trustees elected by the Public (a) The Board of Trustees shall consist of nine Trustees. Five of Employers who, in accordance with the provisions of Section the Trustees shall be full -time employees of a Public Employer 3.1(a) hereof, are also members of the Board of Directors of ICMA (the Public Employee Trustees) who are authorized by such or RC. Public Employer to serve as Trustee. The remaining four Trustees shall consist of two persons who. at :he time of election to the (f) Investment Adviser. The Investment Adviser that enters into a Board of Trustees. are members of the Board of Directors of contract with the Retirement Trust to provide advice with respect ICMA and two persons who. at the time of election. are members to investment of the Trust Property. of - the Board of Directors of RC (the ICMA; RC Trustees) One of (g) Employer Trust. A trust created pursuant to an agreement the Trustees who is a director of ICMA, and one of the Trustees between RC and a Public Employer for the purpose of investing who is a director of RC. shall. at the time of election. be full -time and administering the funds set aside by such employer in employees of a Public Employer. connection with its deferred compensation agreements with its (b) No person may serve as a Trustee for more than one term in employees. any ten -year period. (h) Portfolios. The Portf . os of investments established by the SECTION 3.2. Election and Term. Investment Adviser to the Retirement Trust, under the supervision of the Trustees, for the purpose of providing (a) Except for the Trustees appointed to fill vacancies pursuant investments for the Trust Property. to Section 3.5 hereof, the Trustees shall be elected by a vote of a majority of the Public Employers in accordance with the (i) Public Employee Trustees. Those Trustees elected by the procedures set forth in the By -Laws. Public Employers who, in accordance with the provisions of Section 3.1(a) hereof, are full -time employees of Public (b) At the first election of Trustees, three Trustees shall be Employers. elected for a term of three years. three Trustees shall be elected for a term of two years and three Trustees shall be elected for a (j) Public Employer. A unit of state or local government, or any term of one year At each subsequent election, three Trustees agency or instrumentality thereof, that has adopted a Deferred shall be elected for a term of three years and until his or her Compensation Plan and has executed this Declaration of Trust. successor is elected and qualified. (k) RC. The International City Management Association SECTION 3.3. Nominations. The Trustees who are full -time Retirement Corporation. employees of Public Employers shall serve as the Nominating (I) Retirement Trust. The Trust created by this Declaration of Committee for the Public Employee Trustees. The Nominating Trust. Committee shall choose candidates for Public Employee Trustees in (m) Trust Property. The amounts held in the Retirement Trust on accordance with the procedures set forth in the By -Laws. behalf of the Public Employers. The Trust Property shall include SECTION 3.4. Resignation and Removal. any income resulting from the investment of the amounts so held. (a) Any Trustee may resign as Trustee (without need for prior or (n) Trustees. The Public Employee Trustees and ICMA /RC subsequent accounting) by an instrument in writing signed by the Trustees elected by the Public Employers to serve as members of Trustee and delivered to the other Trustees and such resignation the Board of Trustees of the Retirement Trust. shall be effective upon such delivery, or at a later date according 1 (i) To settle, compromise, or submit to arbitration any claims, When an account becomes an account stated, such account shall be debts, or damages due or owing to or from the Trust Funds: to finally settled, and the Trustee shall be completely discharged and commence or defend suits or legal or administrative proceedings: released, as if such account had been settled and allowed by a judgmen" and to represent the Trust Funds in all suits and legal and or decree of a court of competent jurisdiction in an action or proceedinc administrative proceedings. in which the Trustee and the Employer were parties. (j) To do all such acts. take all such proceedings. and exercise all The Trustee shall have the right to apply at any time to a court of such rights and privileges. although not specifically mentioned competent jurisdiction for the judicial settlement of its account. herein, as the Trustee may deem necessary to administer the Trust Funds and to carry out the purposes of this Trust. ARTICLE VI. Resignation and Removal of Trustee. Section 2.3. Distributions from the Trust Funds. The Employer Section 6.1. Resignation of Trustee. The Trustee may resign at any hereby appoints the Trustee as its agent for the purpose of making time by filing with the Employer its written resignation. Such resignation distributions from the Trust Funds. In this regard the terms and shall take effect sixty (60) days from the date of such filing and upon conditions set forth in the Plan are to guide and control the Trustee's appointment of a successor pursuant to Section 6.3., whichever shall power. first occur. Section 2.4. Valuation of Trust Funds. At least once a year as of Section 6.2. Removal of Trustee. The Employer may remove the Valuation Dates designated by the Trustee, the Trustee shall determine Trustee at any time by delivering to the Trustee a written notice of its the value of the Trust Funds. Assets of the Trust Funds shall be valued at removal and an appointment of a successor pursuant to Section 6.3. their market values at the close of business on the Valuation Date, or, in Such removal shall not take effect prior to sixty (60) days from such the absence of readily ascertainable market values as the Trustee. shall delivery unless the Trustee agrees to an earlier effective date. determine, in accordance with methods consistently followed and Section 6.3. Appointment of Successor Trustee. The appointment of uniformly applied. a successor to the Trustee shall take effect upon the delivery to the ARTICLE III. For Protection of Trustee. Trustee of (a) an instrument in writing executed by the Employer Section 3.1. Evidence of Action by Employer. The Trustee may rely appointing such successor. and exonerating such successor from upon any certificate, notice or direction purporting to have been signed liability for the acts and omissions of its predecessor, and (b) an on behalf of the Employer which the Trustee believes to have been acceptance in writing, executed by such successor. signed by a duly designated official of the Employer. No communication AM of the provisions set forth herein with respect to the Trustee shall shall be binding upon any of the Trust Funds or Trustee until they are relate to each successor with the same force and effect as if such received by the Trustee. successor had been originally named as Trustee hereunder. Section 3.2. Advice of Counsel. The Trustee may consult with any If a successor is not appointed with sixty (60) days after the Trustee legal counsel with respect to the construction of this Agreement, its gives notice of its resignation pursuant to Section 6.1., the Trustee may duties hereunder, or any act, which it proposes to take or omit, and shall apply to any court of competent jurisdiction for appointment of a not be liable for any action taken or omitted in good faith pursuant to successor. such advice. Section 6.4. Transfer of Funds to Successor. Upon the resignation or Section 3.3. Miscellaneous. The Trustee shall use ordinary care and removal of the Trustee and appointment of a successor. and after the reasonable diligence, but shall not be liable for any mistake of judgment final account of the Trustee has been properly settled, the Trustee shall or other action taken in good faith The Trustee shall not be liable for any transfer and deliver any of the Trust Funds involved to such successor. loss sustained by the Trust Funds by reasons of any investment made in ARTICLE VII. Duration and Revocation of Trust Agreement. good faith and in accordance with the provisions of this Agreement. Section 7.1. Duration and Revocation. This Trust shall continue for The Trustee's duties an ~ obligations shall be limited to those such time as may be necessary to accomplish the purpose for which it expressly imposed upon it by this Agreement. was created but may be terminated or revoked at any time by the ARTICLE IV. Taxes, Expenses and Compensation of Trustee. Employer as it relates to any and/or all related participating Employees. Section 4.1. Taxes. The Trustee shall deduct from and charge against Written notice of such termination or revocation shall be given to the Trustee by the Employer. Upon termination or revocation of the Trust, the Trust Funds any taxes on the Trust Funds or the income thereof or all of the assets thereof shall return to and revert to the Employer. which the Trustee is required to pay with respect to the interest of any Termination of this Trust shall not, however, relieve the Employer of the person therein. Employer's continuing obligation to pay deferred compensation to Section 4.2. Expenses. The Trustee shall deduct from and charge Employees in accordance with the terms of the Plan. against the Trust Funds all reasonable expenses incurred by the Trustee Section 7.2. Amendment. The Employer shall have the right to amend in the administration of the Trust Funds. including counsel, agency, this Agreement in whole and in part but only with the Trustee's written investment advisory, and other necessary fees. consent. Any such amendment shall become effective upon (a) delivery ARTICLE V. Settlement of Accounts. The Trustee shall keep accurate to the Trustee of a written instrument of amendment, and (b) the and detailed accounts of all investments, receipts. disbursements, and endorsement by the Trustee on such instrument of its consent thereto. other transactions hereunder. ARTICLE VIII. Miscellaneous. Within ninety (90) days after the close of each fiscal year, the Trustee Section 8.1. Laws of the District of Columbia to Govern. This shall render in duplicate to the Employer an account of its acts and Agreement and the Trust hereby created shall be construed and transactions as Trustee hereunder. If any part of the Trust Fund shall be regulated by the laws of the District of Columbia. invested through the medium of any common, collective or commingled Trust Funds, the last annual report of such Trust Funds shall be Section 8.2. Successor Employers. The "Employer" shall include any submitted with and incorporated in the account. person who succeeds the Employer and who thereby becomes subject If within ninety (90) days after the mailing of the account or any to the obligations of the Employer under the Plan. amended account the Employer has not filed with the Trustee notice of Section 8.3. Withdrawals. The Employer may, at any time, and from any objection to any act or transaction of the Trustee, the account or time to time, withdraw a portion or all of Trust Funds created by this amended account shall become an account stated. If any objection has Agreement. been filed, and if the Employer is satisfied that it should be withdrawn or Section 8.4. Gender and Number. The masculine includes the if the account is adjusted to the Employer's satisfaction, the Employer feminine and the singular includes the plural unless the context requires shall in writing filed with the Trustee signify approval of the account and another meaning. it shall become an account stated. 2 (v) do all such acts, take all such proceedings, and exercise all SECTION 5.3. Bond. No Trustee shall be obligated to give any bond such rights and privileges, although not specifically mentioned or other security for the performance of any of his or her duties herein, as the Trustees may deem necessary or appropriate to hereunder. -- administer the Trust Property and to carry out the purposes of the Retirement Trust. ARTICLE VI. Annual Report to Shareholders SECTION 4.2. Distribution of Trust Property. Distributions of the The Trustees shall annually submit to the Public Employers a written rust Property shall be made to, or on behalf of, the Public Employer, in :cordance with the terms of the Deferred Compensation Plans or report of the transactions of the Retirement Trust, including financial Employer Trusts. The Trustees of the Retirement Trust shall be fully statements which shall be certified by independent public accountants protected in making payments in accordance with the directions of the chosen by the Trustees. Public Employers or the Trustees of the Employer Trusts without ascertaining whether such payments are in compliance with the ARTICLE VII. Duration or Amendment of Retirement Trust provisions of the Deferred Compensation Plans or the agreements creating the Employer Trusts. SECTION 7.1. Withdrawal. A Public Employer may, at any time, with- draw from this Retirement Trust by delivering to the Board of Trustees a SECTION 4.3. Execution of Instruments. The Trustees may statement to that effect. The withdrawing Public Employer's beneficial unanimously designate any one or more of the Trustees to execute any interest in the Retirement Trust shall be paid out to the Public Employer instrument or document on behalf of all. including but not limited to the or to the Trustee of the Employer Trust, as appropriate. signing or endorsement of any check and the signing of any applications, insurance and other contracts, and the action of such SECTION 7.2. Duration. The Retirement Trust shall continue until designated Trustee or Trustees shall have the same force and effect as if terminated by the vote of a majority of the Public Employers, each taken by all the Trustees. casting one vote. Upon termination, all of the Trust Property shall be paid out to the Public Employers or the Trustees of the Employer Trusts, ARTICLE V. Duty of Care and Liability of Trustees as appropriate. SECTION 5.1. Duty of Care. In exercising the powers hereinbefore SECTION 7.3. Amendment. The Retirement Trust may be amended granted to the Trustees, the Trustees shall perform all acts within their by the vote of a majority of the Public Employers, each casting one vote. authority for the exclusive purpose of providing benefits for the Public SECTION 7.4. Procedure. A resolution to terminate or amend the Employers, and shall perform such acts with the care, skill, prudence Retirement Trust or to remove a Trustee shall be submitted to a vote of and diligence in the circumstances then prevailing that a prudent person the Public Employers if: (a) a majority of the Trustees so direct, or (b) a acting in a like capacity and familiar with such matters would use in the petition requesting a vote, signed by not less than 25 °/o of the Public conduct of an enterprise of a like character and with like aims. Employers, is submitted to the Trustees. SECTION 5.2. Liability. The Trustees shall not be liable for any mistake of judgment or other action taken in good faith, and, for any action taken or omitted in reliance in good faith upon the books of ARTICLE Vlll. Miscellaneous - - ;count or other records of the Retirement Trust. upon the opinion of SECTION 8.1. Governing Law. Except as otherwise required by state Dunsel, or upon reports made to the Retirement Trust by any of its or local law, this Declaration of Trust and the Retirement Trust hereby ficers, employees or agents or by the Investment Adviser or any sub- created shall be construed and regulated by the laws of the Distract of vestment adviser, accountants, appraisers or other experts or Columbia. consultants selected with reasonable care by the Trustees, officers or employees of the Retirement Trust. The Trustees shalt also not be liable SECTION 8.2. Counterparts. This Declaration may be executed by for any loss sustained by the Trust Property by reason of any investment the Public Employers and Trustees in two or more counterparts. each of made in good faith and in accordance with the standard of care set forth which shall be deemed an original but all of which together shall in Section 5.1. constitute one and the same instrument. • 3 APPENDIX C TRUST AGREEMENT WITH THE ICMA RETIREMENT CORPORATION AGREEMENT made by and between the Employer named in the provided, however, that the Employer may direct investment by the attached resolution and the International City Management Association Trustee among available investment alternatives in such proportions as Retirement Corporation (hereinafter the "Trustee" or Retirement the Employer authorizes in connection with its deferred compensation Corporation"), a nonprofit corporation organized and existing under the agreements with its employees. For these purposes, these Trust Funds laws of the State of Delaware. for the purpose of investing and otherwise may be commingled with Trust Funds set aside by other Employers administering the funds set aside by Employers in connection with pursuant to the terms of the ICMA Retirement Trust. Investment powers- deferred compensation plans established under section 457 of the vested in the Trustee by the Section may be delegated by the Trustee to Internal Revenue Code of 1954 the "Code"). This Agreement shall take any bank, insurance or trust company, or any investment advisor, effect upon acceptance by the Trustee of its appointment by the manager or agent selected by it. Employer to serve as Trustee in accordance herewith as set forth in the attached resolution. Section 2.2. Administrative Powers of the Trustee. The Trustee shall WHEREAS, the Employer has established a deferred compensation plan have the power in its discretion: under section 457 of the Code (the - Plan "); (a) To purchase, or subscribe for, any securities or other WHEREAS, in order that there will be sufficient funds available to property and to retain the same in trust. discharge the Employers contractual obligations under the Plan, the Employer desires to set aside periodically amounts equal to the amount (b) To sell, exchange, convey, transfer or otherwise dispose of of compensation deferred; any securities or other property held by it, by private contract, or WHEREAS, the funds set aside, together with any and all assets derived at public auction. No person dealing with the Trustee shall be from the investment thereof. are to be exclusively. within the dominion, bound to see the application of the purchase money or to inquire _..Control, and ownership of the Employer. and subject to the Employer's into the validity, expediency, or propriety of any such sale or ibsolute right of withdrawal, no employees having any interest other disposition. vhatsoever therein; (c) To vote upon any stocks, bonds, or other securities; to give general or special proxies or powers of attorney with or without iOW, THEREFORE, this Agreement witnesseth that (a) the Employer power of substitution: to exercise any conversion privileges, will pay monies to the Trustee to be placed in deferred compensation accounts for the Employer: (b) the Trustee covenants that it will hold subscription rights, or other options, and to make any payments said sums. and any other funds which It may receive hereunder, in trust incidental thereto: to oppose, or to consent to. or otherwise for the uses and purposes and upon the terms and conditions participate in. corporate reorganizations or other changes hereinafter stated; and Ic) the parties hereto agree as follows: affecting corporate securities. and to delegate discretionary powers. and to pay any assessments or charges in connection ARTICLE I. General Duties of the Parties. therewith: and generally to exercise any of the powers of an Section 1.1. General Duty of the Employer. The Employer shall make owner with respect to stocks. bonds, securities or other property regular periodic payments equal to the amounts of its employees' held as part of the Trust Funds. compensation which are deferred in accordance with the terms and (d) To cause any securities or other property held as part of the conditions of the Plan to the extent that such amounts are to be invested Trust Funds to be registered in its own name, and to hold any under the Trust. . investments in bearer form, but the books and records of the Section 1.2. General Duties of the Trustee. The Trustee shall hold all Trustee shall at all times show that all such investments are a part funds received by it hereunder. which, together with the income of the Trust Funds. therefrom, shall constitute the Trust Funds. It shall administer the Trust (e) To borrow or raise money for the purpose of the Trust in such Funds, collect the income thereof, and make payments therefrom, all as amount, and upon such terms and conditions, as the Trustee shall hereinafter provided. The Trustee shall also hold all Trust Funds which deem advisable; and, for any sum so borrowed. to issue its are transferred to it as successor Trustee by the Employer from existing promissory note as Trustee. and to secure the repayment thereof deferred compensation arrangements with its Employees under plans by pledging all, or any part. of the Trust Funds. No person lending described in section 457 of the Code. Such Trust Funds shall be subject money to the Trustee shall be bound to see the application of the to all of the terms and provisions of this Agreement. money lent or to inquire into its validity, expediency or propriety of any such borrowing. ARTICLE II. Powers and Duties of the Trustee in Investment, (f) To keep such portion of the Trust Funds in cash or cash Administration, and Disbursement of the Trust Funds. balances as the Trustee, from time to time, may deem to be in the Section 2.1. Investment Powers and Duties of the Trustee. The best interest of the Trust created hereby, without liability for - Trustee shall have the power to invest and reinvest the principal and interest thereon. ncome of the Trust Funds and keep the Trust Funds invested, without (g) To accept and retain for such time as it may deem advisable iistinction between principal and income, in securities or in other any securities or other property received or acquired by it as )roperty, real or personal, wherever situated, including, but not limited Trustee hereunder, whether or not such securities or other o, stocks, common or preferred, bonds, retirement annuity and property would normally be purchased as investment hereunder. insurance policies, mortgages, and other evidences of indebtedness or (h) To make, execute, acknowledge, and deliver any and all ownership, investment companies, common or group trust funds, or documents of transfer and conveyance and any and all other separate and different types of funds (including equity, fixed income) instruments that may be necessary or appropriate to carry out the which fulfill requirements of state and local governmental laws, powers herein granted. 1 i to the terms of the instrument. Any of the Trustees may be times show that all such investments are a part of the Trust removed for cause, by a vote of a majority of the Public Property; Employers. (h) make, execute, acknowledge, and deliver any and all (b) Each Public Employee Trustee shall resign his or her position documents of transfer and conveyance and any and all othe,L--, as Trustee within sixty days of the date on which he or she ceases instruments that may be necessary or appropriate to carry out th to be a full -time employee of a Public Employer. powers herein granted; SECTION 3.5. Vacancies. The term of office of a Trustee shall (i) vote upon any stock, bonds, or other securities; give genera terminate and a vacancy shall occur in the event of the death, or special proxies or powers of attorney with or without power c resignation, removal, adjudicated incompetence or other incapacity to substitution; exercise any conversion privileges, subscription perform the duties of the office of a Trustee. In the case of a vacancy, the rights, or other options, and make any payments incidental remaining Trustees shall appoint such person as they in their discretion thereto; oppose, or consent to, or otherwise participate in, shall see fit (subject to the limitations set forth in this Section), to serve corporate reorganizations or other changes affecting corporate for the unexpired portion of the term of the Trustee who has resigned or securities, and delegate discretionary powers, and pay any otherwise ceased to be a Trustee. The appointment shall be made by a assessments or charges in connection therewith; and generally written instrument signed by a majority of the Trustees. The person exercise any of the powers of an owner with respect to stocks, appointed must be the same type of Trustee (i.e., Public Employee bonds, securities or other property held as part of the Trust Trustee or ICMA /RC Trustee) as the person who has ceased to be a Property; • Trustee. An appointment of a Trustee may be made in anticipation of a (j) enter into contracts or arrangements for goods or services vacancy to occur at a later date by reason of retirement or resignation, required in connection with the operation of the Retirement provided that such appointment shall not become effective prior to such Trust, including, but not limited to, contracts with custodians and retirement or resignation. Whenever a vacancy in the number of contracts for the provision of administrative services; - trustees shall occur, until such vacancy is filled as provided in this (k) borrow or raise money for the purpose of the Retirement Section 3.5, the Trustees in office, regardless of their number, shall have Trust in such amount, and upon such terms and conditions, as the all the powers granted to the Trustees and shall discharge all the duties Trustees shall deem advisable, provided that the aggregate i mposed upon the Trustees by this Declaration. A written instrument amount of such borrowings shall not exceed 30% of the value of certifying the existence of such vacancy signed by a majority of the the Trust Property. No person lending money to the Trustees Trustees shall be conclusive evidence of the existence of such vacancy. shall be bound to see the application of the money lent or to SECTION 3.6. Trustees Serve in Representative Capacity. By inquire into its validity, expediency or propriety of any such executing this Declaration, each Public Employer agrees that the Public borrowing; Employee Trustees elected by the Public Employers are authorized to (I) incur reasonable expenses as required for the operation of the act as agents and representatives of the Public Employers collectively. Retirement Trust and deduct such expenses from the Trust Property; . ARTICLE IV. Powers of Trustees (m) pay expenses properly allocable to the Trust Property... SECTION 4.1. General Powers. The Trustees shall have the power to incurred in connection with the Deferred Compensation Plans c conduct the business of the Trust and to carry on its operations. Such the Employer Trusts and deduct such expenses from that portic power shall include, but shall not be limited to, the power to: of•the Trust Property beneficially owned by the Public Employ, to whom such expenses are properly allocable; (a) receive the Trust Property from the Public Employers or from a Trustee of any Employer Trust; (n) pay out of the Trust Property all real and personal property (b) enter into a contract with an Investment Adviser providing, taxes, income taxes and other taxes of any and all kinds which, in among other things, for the establishment and operation of the the opinion of the Trustees, are properly levied, or assessed Portfolios, selection of the Guaranteed Investment Contracts in under existing or future laws upon, or in respect of, the Trust which the Trust Property may be invested, selection of other Property and allocate any such taxes to the appropriate accounts; investments for the Trust Property and the payment of reasonable (o) adopt, amend and repeal the By -Laws, provided that such By- fees to the Investment Adviser and to any sub-investment adviser Laws are at all times consistent with the terms of this Declaration retained by the Investment Adviser: of Trust; (c) review annually the performance of the Investment Adviser (p) employ persons to make available interests in the Retirement and approve annually the contract with such Investment Adviser; Trust to employers eligible to maintain a deferred compensation plan under section 457 of the Internal Revenue Code, as (d) invest and reinvest the Trust Property in the Portfolios, the amended; Guaranteed Investment Contracts and in any other investment recommended by the Investment Adviser, provided that if a (q) issue the Annual Report of the Retirement Trust, and the Public Employer has directed that its monies be invested in disclosure documents and other literature used by the specified Portfolios or in a Guaranteed Investment Contract, the Retirement Trust; Trustees of the Retirement Trust shall invest such monies in (r) make loans, including the purchase of debt obligations, accordance with such directions; provided that all such loans shall bear interest at the current (e) keep such portion of the Trust Property in cash or cash market rate; balances as the Trustees, from time to time, may deem to be in the (s) contract for, and delegate any powers granted hereunder to, best interest of the Retirement Trust created hereby, without such officers, agents, employees, auditors and attorneys as the liability for interest thereon; Trustees may select, provided that the Trustees may not delegate (f) accept and retain for such time as they may deem advisable the powers set forth in paragraphs (b), (c) and (o) of this Section any securities or other property received or acquired by them as 4.1 and may not delegate any powers if such delegation would Trustees hereunder, whether or not such securities or other violate their fiduciary duties; property would normally be purchased as investments here- (t) provide for the indemnification of the officers and Trustees under; the Retirement Trust and purchase fiduciary insurance; (9) cause any securities or other property held as part of the (u) maintain books and records, including separate accounts f Trust Property to be registered in the name of the Retirement each Public Employer or Employer Trust and such additional Trust or in the name of a nominee, and to hold any investments in separate accounts as are required under, and consistent with, the bearer form, but the books and records of the Trustees shall at all Deferred Compensation Plan of each Public Employer; and 2 1 • cably elect within 60 days following Separation from Service Sections 7.01 or 7.06, a death benefit equal to the value of the to have the distribution of benefits commence on a date other Participant's Account shall be payable to the Beneficiary than that described in the preceding sentence which is at commencing no later than 60 days after the close of the Plan least 60 days after the date such election is delivered in Year in which the Participant would have attained Normal writing to the Employer and forwarded to the Administrator Retirement Age. Such death benefit shall be paid in a lump but not later than 60 days after the close of the Plan Year of sum unless the Beneficiary elects a different payment option the Participant's Retirement. within 90 days of the Participant's death. A Beneficiary who 7.02 Payment Options: As provided in Sections 7.01, 7.05 and 7.06, may elect a payment option pursuant to the provisions of the a Participant may elect to have the value of his Account preceding sentence shall be treated as if he were a Participant distributed in accordance with one of the following payment for purposes of determining the payment options available options, provided that such option is consistent with the under Section 7.02; provided, however, that the payment limitations set forth in Section 7.03: option chosen by the Beneficiary must provide for payments to the Beneficiary over a period no longer than the life (a) Equal monthly, quarterly, semi- annual or annual expectancy of the Beneficiary if the Beneficiary is the payments in an amount chosen by the Participant, Participant's spouse and must provide for payments over a continuing until his Account is exhausted; period not in excess of fifteen (15) years if the Beneficiary is (b) One lump sum payment; not the Participant's spouse. (c) Approximately equal monthly, quarterly, semi - annual 7.06 Disability: In the event a Participant becomes disabled before the commencement of Retirement benefits under Section or annual payments, calculated to continue for a period 7 01,•the Participant may elect to commence benefits under certain chosen by the Participant, one of the payment options described in Section 7.02 on the (d) Payments equal to payments made by the issuer of a last day of the month following a determination of disability retirement annuity policy acquired by the Employer; by the Employer. The Participant's request for such (e) Any other payment option elected by the Participant determination must be made within a reasonable time after and agreed to by the Employer the impairment which constitutes the disability occurs. A Participant shall be considered disabled for purposes of this A Participant's election of a payment option must be made at Plan if he is unable to engage in any substantial gainful least 30 days before the payment of benefits is to commence. activity by reason of any medically determinable physical or If a Participant fails to make a timely election of a payment mental impairment which can be expected to result in death option, benefits shall be paid monthly under option (c) above or be of long- continued and indefinite duration. The for a period of•five years. disability of any Participant shall be determined in 7.03 Limitation on Options: No payment option may be selected accordance with uniform principles consistently applied and by the Participant under Section 7.02 unless the present value upon the basis of such medical evidence as the Employer of the payments to the Participant. determined as of the date deems necessary and desirable. benefits commence, exceeds 50 percent of the value of the 7.07 Unforeseeable Emergencies: In the event an unforeseeable Participant's Account as of the date benefits commence. emergency occurs, a Participant may apply to the Employer Present value determinations under this Section shall be to receive that part of the value of his account that is made by the Administrator in accordance with the expected reasonably needed to satisfy the emergency need. If such an return multiples set forth in section 1.72 -9 of the Federal application is approved by the Employer. the Participant shall Income Tax Regulations or any successor provision to such be paid only such amount as the Employer deems necessary regulations). to meet the emergency need. but payment shall not be made to the extent that the financial hardship may be relieved 7.04 Post - retirement Death Benefits: Should the Participant die through cessation of deferral under the Plan, insurance or after he has begun to receive benefits under a payment other reimbursement. or liquidation of other assets to the option, the remaining payments, if any. under the payment extent such liquidation would not itself cause severe financial option shall be payable to the Participant's Beneficiary hardship. An unforeseeable emergency shall be deemed to commencing within 60 days after the Administrator receives involve only circumstances of severe financial hardship to the proof of the Participant's death. unless the Beneficiary elects Participant resulting from a sudden and unexpected illness or payment under a different payment option at least 30 days accident of the Participant or of a dependent as defined in prior to the date that the first payment becomes payable to section 152(a) of the Internal Revenue Code) of the the Beneficiary. In no event shall the Employer or Participant, loss of the Participant's property due to casualty. Administrator be liable to the Beneficiary for the amount of or other similar and extraordinary unforeseeable circum- any payment made in the name of the Participant before the stances arising as a result of events beyond the control of the Administrator receives proof of death of the Participant. Participant. The need to send a Participant's child to college Notwithstanding the foregoing, payments to a Beneficiary or to purchase a new home shall not be considered shall not extend over a period longer than (i) the Beneficiary's unforeseeable emergencies. The determination as to life expectancy if the Beneficiary is the Participant's spouse whether such an unforeseeable emergency exists shall be or (ii) fifteen (15) years if the Beneficiary is not the based on the merits of each individual case. Participant's spouse. If no Beneficiary is designated in the Joinder Agreement, or if the designated Beneficiary does not survive the Participant for a period of fifteen (15) days, then VIII. NON - ASSIGNABILITY the commuted value of any remaining payments under the No Participant or Beneficiary shall have any right to commute, payment option shall be paid in a lump sum to the estate of sell, assign, pledge, transfer or otherwise convey or encumber the the Participant. If the designated Beneficiary survives the right to receive any payments hereunder, which payments and Participant for a period of fifteen (15) days, but does not rights are expressly declared to be non - assignable and non - continue to live for the remaining period of payments under transferable. the payment option (as modified, if necessary, in conformity with the third sentence of this section), then the commuted IX. RELATIONSHIP TO OTHER PLANS AND EMPLOYMENT value of any remaining payments under the payment option AGREEMENTS shall be paid in a lump sum to the estate of the Beneficiary. This Plan serves in addition to any other retirement, pension. or benefit plan or system presently in existence or hereinafter 7.05 Pre - retirement Death Benefits: Should the Participant die established for the benefit of the Employer's employees, and before he has begun to receive the benefits provided by participation hereunder shall not affect benefits receivable under 3 any such plan or system. Nothing contained in this Plan shall be period, the Employer notifies the Administrator in writing that it deemed to constitute an employment contract or agreement disapproves such amendment, in which case such amendment between any Participant and the Employer or to give any shall not become effective. In the event of such disapproval, tq,_, Participant the right to be retained in the employ of the Employer. Administrator shall be under no obligation to continue acting a Nor shall anything herein be construed to modify the terms of any Administrator hereunder. employment contract or agreement between a Participant and the No amendment or termination of the Plan shall divest an Employer. Participant of any rights with respect to compensation deferr& before the date of the amendment or termination. X. AMENDMENT OR TERMINATION OF PLAN XI. APPLICABLE LAW The Employer may at any time amend this Plan provided that it This Plan shall be construed under the laws of the state where transmits such amendment in writing to the Administrator at least the Employer is located and is established with the intent that it 30 days prior to the effective date of the amendment. The consent meet the requirements of an "eligible State deferred compensation of the Administrator shall not be required in order for such plan" under section 457 of the Internal Revenue Code of 1954, as amendment to become effective, but the Administrator shall be amended. The provisions of this Plan shall be interpreted wherever under no obligation to continue acting as Administrator hereunder possible in conformity with the requirements of that section. if it disapproves of such amendment. The Employer may at any time terminate this Plan. The Administrator may at any time propose an amendment to XII. GENDER AND NUMBER the Plan by an instrument in writing transmitted to the Employer at The masculine pronoun. whenever used herein. shall include the least 30 days before the effective date of the amendment. Such feminine pronoun, and the singular shall include the plural, except amendment shall become effective unless, within such 30 -day where the context requires otherwise. 4