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HomeMy WebLinkAboutRES 89-107RESOLUTION 89- 107 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DIAMOND BAR ESTABLISHING A DEFERRED COMPENSATION PLAN FOR THE EMPLOYEES OF THE CITY. WHEREAS, the Employer has employees rendering valuable services; and WHEREAS, the establishment of a deferred compensation plan for such employees serves the interests of the Employer by enabling it to provide reasonable retirement security for its employees, by providing increased flexibility in its personnel management system, and by assisting in the attraction and retention of competent personnel; and WHEREAS, the Employer has determined that the establishment of a deferred compensation plan to be administered by the ICMA Retirement Corporation serves the above objectives; and WHEREAS, the Employer desires that the investment of funds held under its deferred compensation plan be administered by ICMA Retirement Corporation, and that such funds be held by the ICMA Retirement Trust, a trust established by public employers for the collective investment of funds held under their deferred compensation plans and money purchase retirement plans; NOW THEREFORE BE IT RESOLVED that the Employer, unless it has already done so, hereby adopts the deferred compensation plan attached hereto as: (1) Appendix A and appoints the ICMA Retirement Corporation to serve as Administrator thereunder; and BE IT FURTHER RESOLVED that the Employer hereby executes the Declaration of Trust of the ICMA Retirement Trust, attached hereto as Appendix B. BE IT FURTHER RESOLVED that the City Manager shall be the coordinator for this program and shall receive necessary reports, notices, etc. from the ICMA Retirement Corporation or the ICMA Retirement Trust, and shall cast, on behalf of the Employer, any required votes under the program. Administrative duties to carry out the plan may be assigned to the appropriate departments. 1989. PASSED, APPROVED AND ADOPTED this 7th day of November I, Lynda Burgess, City Clerk of the City of Diamond Bar, do hereby certify that the foregoing Resolution was passed at a regular meeting of the City Council of the City of Diamond Bar held on the 7th day of Wnvamher 1989, by the following vote: AYES: COUNCIL MEMBERS: Forbing, Miller, Werner, Mayor Pro Tem Horcher and Mayor Papen NOES: COUNCIL NEMBERS: None ABSENT: COUNCIL MEMBERS: None ABSTAINED: COUNCIL MEMBERS: None ATTEST:- TTEST:City CityC-Ifdrk of the Cit of Di tbad Bar OA 5'tIt ("EMPLOYER") DEFERRED COMPENSATION PLAN AFTICLE 1. INTRODUCTION The Employer hereby establishes the Employers Deferred Compensation Plan, hereinafter referred to as the "Plan." The Plan consists of the provisions set forth in this document. The primary purpose of this Plan is to provide retirement income and other deferred benefits to the Employees of the Employer in accordance with the pro- visions of section 457 d the Internal Revenue Code of 1954. as amended. This Plan shall be an agreement sdely between the Employer and participat- ing Employees. ARTICLE 11. DEFINITIONS Section 2.01 Account: The bookkeeping account maintained for each Par- ticipant reflecting the cumulative amount of the Participant's Deferred Com- pensation, including any income, gains, losses, or increases or decreases in �' market value attributable to the Employer's investment of the Participant's Deferred Compensation. and further reflecting any distributions to the Participant or the Participants Beneficiary and any tees or expenses charged against such Participants Deferred Compensation. Section 2.02 Administrator: The person or persons named to carry out cer- tain nondiscretionary administrative functions under the Plan, as hereinafter described. The Employer may remove any person as Administrator upon 60 days' advance notice in writing to such person, in which case the Employer shall name another person or persons to act as Administrator. The Adminis- trator may resign upon 60 days' advance notice in writing to the Employer, in which case the Employer shall name another person or persons to act as Administrator. Section 2.03 Beneficiary: The person or persons designated by the Par- ticipart in his Joinder Agreement who shall receive any benefits payable here- under in the event of the Participant's death. Section 2.04 Deferred Compensation: The amount of Normal Compensa- tion otherwise payable to the Participant which the Participant and the Employer mutually agree to defer hereunder, any, amount credited to a Participant's Account by reason of a transfer under Section &03, or any other amount which the Employer agrees to credit to a Participant's Account. Section 2.05 Employee: Any individual who provides services for the Employer, whetfter as an employee of the Employer or as an independent con- tractor, and who has been designated by the Employer as efigible to partici- pate in the Plan. S*cbw 2.06 Ineludible Compensation: The amoint d an Employees com- pensation from the Employer for a taxable year that is attributable to services _performed for the Employe+ and that is inoludide in the Employees gross income or the taxable year for federal income tax purposes; such term does not include any amount excludable from gross income under this Plan or any, other plan described in section 457(b) of the Internal Revenue Code, any amount exGud- able from gross income under section 403(b) of the Internal Revenue Code, or any other amount excludable from gross income for federal income tax pur- poses. Includible Compensation shall be determined without regard to any community property laws. Section 2.07 Joinder Agroement: An agreement entered into between an Employee and the Employer, including any amendments or modifications themed. Such agreement anal) fix the amount of Deferred Compensation. spec ty a preference among the investment alternatives designated by the Employer, designate the Employee's Beneficiary or Beneficiaries, and incorporate the terms, conditions, and provisions of the Plan by reference Section 2.08 Normal Compensation: The amount of compensation which would be payable to a Participant by the Employer for a taxable year it no Joinder Agreement were in effect to defer compensation under this Plan. Section 2.09 Normal Retirement Age: Age M. unless the Participant has elected an alternate Normal Retirement Age by written instrument delivered to the Administrator prior to Separation from Service. A Participant's Normal Retirement Age determines (a) the latest time when benefits may commence under this Plan (unless the Participant continues employment after Normal Retirement Age), and (b) the period during which a Participant may utilize the catch-up limitation of Section 5.02 hereunder. Once a Participant has to any extent utilized the catch-up limitation d Section 602, his Normal Retirement Age may not be changed. A Participant's alternate Normal Retirement Age may not be earlier than the earliest date that the Panicipant will become eligible to retire and receive unreduced retirement benefits under the Employers basic retirement plan cover- ing the Participant and may not be later than the date the Participant attains age M. It a Participant continues employment after attaining age 70, not hav- ing previously elected an alternate Normal Retirement Age, the Participant's alternate Normal Retirement Age shall not be later than the mandatory retire- ment age, it any, established by the Employer. or the age at which the Par- ticipant actually separates from service it the Employer has no mandatory retire- ment age lt the Participant will not become eligible to receive benefits under a basic retirement plan maintained by the Employer, the Participant's alternate Normal Retirement Age may not be earlier than attainment of age 55 and may not be later than the attainment of age M. Section 2.10 Participant: Any Employee who has joined the Plan pursuant to the requirements of Article IV. Section 2.11 Plan Year: The calendar year. Section 2.12 Retirement: The first date upon which both of the following shell have occurred with respect to a Participant: Separation from Service and attainment of age 65. Section 2.13 Separation from Servlcs: Severance of the Participant's employment with the Employer which constitutes a 'separation from service" within the meaning of section 402 (e) 4 (A) (ii) of the Internal Revenue Code. In general, a Participant shall be deemed to have severed his employment with the Employer for purposes of this Pian when. in accordance with the estaD fished practices of the Employer, the employrnent relationship is considered to have actually terminated. In the case of a Participant who is an indepen- dent contractor d the Employer, Separation from Service shall be deemed to hava occurred when the Partidparil's contract under which services are per• formed has completely expired and terminated, there is no foreseeable pos- sibility that the Employer will renew the contract or enter into a new contract for the Participant's services, and it is not anticipated that the Participant will become an Employee of the Employer. t ARTICLE Ili. ADMINISTRATION creditors d the Employer and no Participant or Beriefiaary' shall have any vested interest or secured or preferred position with respect to such property or have Section 3.01 Duties of Employer: The Employer shall have the authority to make all discretionary decisions affecting the rights or benefits of Participants which may be required in the administration of this Plan. ;ection 3.02 Duties of Administrator. The Administrator, as agent for the Employer, shall perform nondlecretionary administrative torictions in connec- tion with the Plan, including the maintenance of Participants' Accour><s, the provision of periodic reports on the status of each Account and the disburse- ment isbursement of benefits on behalf of the Employer in accordance with the provisions of this Plan. ARTICLE IV. PARTICIPATION IN THE PLAN Section 4.01 Initial Participation: An Employee may become a Participant by entering into a Joinder Agreement prior to the beginning of the calendar month in which the Joinder Agreement is to become effective to defer com- pensation not yet earned. Section 4.02 Amendment of Joinder Agreement: A Participant may amend an executed Joinder Agreement to change the amount of compensa- tion not yet earned which is to be deferred (including the reduction of such future deferrals to Hero) or to change his investment preference (subject to such restrictions as may result from the nature or lama of any investment made by the Employer). Such amendment shall become effective as of the begin- ning of the calendar month commencing after the date the amendment is executed. A Participant may at any time emend his Joinder Agreement to change the designated Beneficiary, and such amendment shall become effec- tive immediately. ARTICLE V. LIMITATIONS OF DEFERRALS Section 5.01 Normal Limitation: Except as provided in Section 5.02, the maximum amount of Deferred Compensation for ary Participant for any taxa- ble year stall not exceed the lesser of 575100.00 or 331A percent of the Par- ^ topants Inducciible Compensation for the taxable year. This limitation will ordinar- ily be equivalent to the lesser of $7,500.00 or 25 percent of the Participant's Normal Compensation. Section 5.02 Catch -Up Limitation: For each of the last three (3) taxable years of a Participant ending before his attainment of Normal Retirement Age, the maximum amount of Deferred Compensation shall be the lesser of: (1) 515,000 or (2) the sum of (i) the Normal Limitation for the taxable year, and (i) that portion of the Normal Limitation for each of the prior taxable years of the Participant commencing after 1978 during which the Flan was in existence, compensation (if any) deterred under the plan was subject to the limitations set forth in section 501, and the Participant was eligible to participate in the Plan (or in any other plan established under section 457 of the Internal Reve nue Code by an employer within the same State as the Employer) in excess of the amount of Deferred Compensation for each such prior taxable year [including amounts deferred under such other plan). For purposes of this Section 5.02. a Participant's Includible Compensation for the current taxable year shall be deemed to include any Deferred Compensation for the taxable year in excess of the amount permitted under the Normal Limitation, and the Participant's Includible Compensation for any prior taxable year snail be deemed to exclude any amount that could have been deferred under the Normal Limitation for such prior taxable year. Section 5.03 Section 403(b) Annuities: For purposes d Sections 501 and 5.02, amounts contributed by the Employer on behalf of a Participant for the purchase of an annuity contract described in section 403(b) of the Internal Revenue Code shall be treated as if such amounts constituted Deferred Com- pensation under this Plan for the taxable year in which the contribution was maoe and shall thereby reduce the maximum amount that may be deferred for such taxable year. ­1CLE VI. INVESTMENTS AND ACCOUNT VALUES action 5.01 Investment of Deferred Compensation: All investments Of Participants' Deterred Compensation made by the Employer, including all prop- erty roperty and rights purchased with sueti amounts and all income attributable thereto shall be the sole property of the Employer and shall not be held in trust for Participants or as collateral security for the fulfillment of the Employer's obliga- tions under the Plan. Such property shall be subject to the claims of general N any claim against the Employer except as a general creditor. Section 6.02 Crediting of Accounts: The Panioipants Account "1 reflect the amount and value d the investments or other property obtained by the Employer through the investment Of the Partwipants Deferred Compensation. It is anticipated that the Employers investments with respect to a Participant will conform to the investment preference specified in the Participant's Joinder Agreement, but nothing herein shall be construed to require the Employer to make any particular irtvestrnent of a Partiapant's Deferred Compensation. Each Partiapant shall receive periodic reports, not les_ frequently tan annually, show- ing the then -current value of his Account Section 6.03 Transfers: A transfer will be accepted from an eligible State deferred compensation plan maintained by another employer and credited to a Participant's Account under this Plan. The Employer may require such documentation from the predecessor plan as it deems necessary to effectu- ate the transfer, to confirm that such plan is an eligible State deterred com- pensation plan within the meaning of section 457 of the Internal Revenue Core, and to assure that transfers are provided for under such plan. Any such trans- ferred amount shall not be treated as a deferral subject to the limitations of Article V, except that, for purposes of applying the limitations of Section 5.01 and 5.02, an amount deterred during any taxable year under the plan from which the transfer is accepted shatI be treated as if it had. been deterred under this Plan during such taxable year and compensation paid by the transteror employer shall be treated as it d had been paid by the Employer. Section 6.04 Employer Liability: In no event shall the Employer's liability to pay benefits to a Participant under Article VI exceed the value d the amounts credited to the Participants Account, the Employer shall not be liable for losses arising from depreciation or shrinkage in the value ol ary investments acquired under this Plan. ARTICLE VII. BENEFITS Section 7.01 Retirement Benefits and Election on Separation from Service: Except as otherwise provided in this Article VII, the distribution of a Participant's Account shall commence during the second calendar month after the close of the Plan Year of the Participant's Retirement, and the distri- bution of such Retirement benefits shall be made in accordance with one of the payment options described in Section 7.02. Notwithstanding the forego- ing, the Participant may irrevocably elect within 60 days following separation from Service to have the distribution of benefits commence on a date other than that described in the preceding sentence which is at least 60 days after the date such election is delivered in writing to the Employer and forwarded to the Administrator but not later than 60 days after the dose of the Plan Year of the Participant's attainment of Normal Retirement Age or Separation from Service, whichever is later. Section 7.02 payment Options: As provided in Sections 7.01 and 7.05. a Participant may elect to have the value of his Account distributed in accor- dance with one of the fri laving payment options, provided that such option is consistent with the limitations set forth in Section 7.03: (a) Equal monthly, quarterly, semi-annual or annual payments in an amount chosen by the Participant, continuing until his Account is exhausted; (b) One lump sum payment; (c) Approximately equal monthly, quarterly, semi-annual or annual payments. calculated to continue for a period chosen by the Participant; (d) Payments equal to payments made by the issuer of a retirement annuity policy acquired by the Employer; (e) Ary other payment option elected by the Participant and agreed to by the Employee A Participant's election of a payment option must be made at least 30 days before the payment of benefits is to commence If a Participant fails to make a timely election of a payment option, benefits shall be paid monthly under option (c) above for a period of five years. Section 7.03 Limitation on Options: No payment option may be selected by the Participant under Section 7.02 unless the present value of the payments to the Participant, determined as of the date benefits commence. exceeds 50 percent of the value of the Participant's Account as of the date benefits commence. Present value determinations under this Section shall be made by the Administrator in accordance with the expected return multiples set forth in section 1.72-9 of the Federal Income Tax Regulations (or any successor Pro- vision to such regulations). Section 7.04 Post-retirement Death Bernettta: Should the Par=partt die after he has begun to receive benefits under a payment option, the remaining paymert[s, if any, under the payment option shall be payable to the Partici- pant's Beneficiary commencing within the 34day period commencing with the 31st day after the Participant's death, unless the Beneficiary elects pay- ment under a different payment option within 30 days of the Participant's death. In no event shall the Employer or Administrator be liable to the Beneficiary for the amount of any payment made in the name of the Participant before the Administrator receives proof of death of the Participant. Notwithstanding the foregoing, payments to a Beneficiary shall not extend over a period longer than (i) the Beneficiary's life expectancy if the Beneficiary is the Panicipant's spouse or (ii) fifteen (15) years if the Beneficiary is not the Participant's spouse. It no Beneficiary is designated in the Joinder Agreement, or it the designated Beneficiary does not survive the Participant for a period of fiheen (15) days, them the commuted value of any remaining payments under the payment option shall be paid in a lump sum to the estate of the Participant. If the designated Beneficiary survives the Participant for a period o1 fifteen .(15) days, but does not continue to live for the remaining period of payments under the payment option (as modified, if necessary, in conformity with the third sentence of this section), then the commuted value of any remaining payments under the pay- ment option shall be paid in a lump sum to the estate of the Beneficiary. Section 7.05 Pre -retirement Death Benefits: Should the Participant die before he has begun to receive the benefits provided by Section 7.01, the value of the Participant's Account shall be payable to the Beneficiary commencing within the 30 -day period commencing on the gist day after the Participant's death, unless the Beneficiary elects a different benefit commencement date within the 90 days of the Participant's death. Such benefits shall be paid in approximately equal annual installments over five years. or over such shorter period as may be necessary to assure that the amount of any annual install- ment is not less than $3.500. unless the Beneficiary elects a different payment option within 90 days of the Participant's death. Notwithstanding the lorego- ing, bereft paid to a Beneficiary under this Section may commence no earlier than the gist day atter the Participant's death and no later than 60 days after the later of the close of the Plan Year in which the Participant attained or would have attained Normal Retirement Age or the close of the Plan Year in which the Participant separated from service. A Beneficiary who may elect a pay- ment option pursuant to the provisions of the preceding sentence shall be treated as if he were a Participant for purposes of determining the payment options available under Section 7.02: provided. however, that the paymern option chosen by the Beneficiary must provide for payments to the Beneficiary over a period no longer than the life expectancy of the Beneficiary it the Benefici. ary is the Participants spouse and must provide for payments over a period not in excess of fifteen (15) years it the Beneficiary is not the Participant's spouse Section 7.06 Unforeseeable Emergencies: In the event an untoreseeable emergency occurs, a Participant may apply to the Employer to receive that part of the valued his account that is reasonably needed to satisfy the emer- gency need. If such an application is approved by the Employer, the Participant shall be paid only such amount as the Employer deems necessary to meet the emergency need, but payment shall not be made to the extent inat the financial hardship may be relieved through cessation of deferral under the Plan. insurance or other reimbursement. or liourdation of other assets to the extent such liquidation would not itsefi cause severe financial hardship. An urtfore5ee able emergency shall be deemed to involve only circumstances of severe financial hardship to the Participant resulting from a sudden and unexpected illness, accident or disability of the Participant or of a dependent (as defined in section 152(a) of the Internal Revenue Code) of the Participant. loss of the Par- ticipant's property due to casualty, Or other similar and extraordinary unforesee- able circumstances arising as a result of events beyond the control of the Par- ticipant. The need to semi a Participant's child to college or to purchase a new home shall not be considered unforeseeable emergencies. The determrnatron as to whether such an unforeseeable emergency exists shall be based on the mems of each individual case. ARTICLE VIII. NON,ASSIGNABIUTY No Participant or Beneficiary shall have any right to commute, sell, assign, pledge, transfer or otherwise convey or encumber the right to receive any pay- ments hereunder, which payments an: rights are expressly declared to be non - assignable and non-transterable. ARTICLE IX. RELATIONSHIP TO OTHER PLANS AND EMPLOYMENT AGREEMENTS This Plan serves in addition to any other retirement, pension, or benefit plan or system presently in existence or hereinafter established for the benefit of the Employer's employees, and participation hereunder shat' not affect benehts receiv- able under any such plan or system. Nothing contained in this Plan shall be deemed to constitute an employment contract or agreement between any Par- ticipant and the Employer or to give any Participant the right to be retained in the employ of the Employer. Nor shall arything herein be construed to modify the terms of any employment contract or agreement between a Participant and the Employer. ARTICLE X. AMENDMENT OR TERMINATION OF PLAN The Employer may at any time amend this Plan provided that it transmits such amendment in writing to the Administrator at least 30 days prior to the effective date of the amendment. The consent of the Administrator shall not be required in order for sucn amendment to become effective, but the Administrator shall be under no obligation to continue acting as Administrator hereunder if it disap- proves of such amendment. The Employer may at any time terminate this Plan. The Administrator may at ary time propose an amendment to the Plan by an instrument in writing transmitted to the Employer at least 30 days before the effec- tive date of the amendment. Such amendment shall become elective unless, within such 30-0ay period, the Employer notifies the Administrator in writing that A disapproves such amendment, in which case such amendment shall not become effective. In the event of such disapproval, the Administrator shall be under no obligation to continue acting as Administrator hereunder. No amendment or termination of the Plan shall divest any Participant of any rights with respect to compensation deterred before the dale of the amendment or termination. ARTICLE XI. APPLICABLE LAW This Plan shall be construed under the laws of the state where the Employer is located and is established with the intent that it meet the requirements of an eligible State deferred compensation plan' under section 457 of the Internal Rev. enue Code of 1954, as amended. The provisions of this Plan small be interpreted wherever possible in conformity with the requirements of tnat section. ARTICLE X11. GENDER AND NUMBER The masculine pronoun, whenever used herein, shall include the feminine pro- noun, and the singular shall induce the plural, except where the context requires otherwise. DECLARATION OF TRUST OF ICMA RETIREMENT TRUST ARTICLE I. NAME AND DEFINITIONS Section 1.1 Name: The Name d the Trust. as amended and restated hereby, is the ICMA Retirement Trust. Sedlon 1.2 Deflnitlons: *,twever, they are used herein. the following terms shall have the following respective mearings: (a) Sy -Laws The By.Laws referred to in Section 4.1 hared. as amended from time to time. (b) Doffed Comperrsapon Plan. A deferred compensation plan established and maintained by a Pudic Employer for the purpose of providing retire- ment income and other deferred benefits to As employees in accordance with the provisions of section 457 of the Internal Revenue Code of 1954, as amended. (c) Employees Those employees who participate in Qualified Plans. (d) Employer Trust. A trust created pursuant to an agreement between RC and a Public Employer for the purpose of investing and administering the funds set aside by such Employer in connection with its Deferred Compen- astion agresmherts with id employees or in owwoe ion wth lfa ouakw Plan. (e) Guaranteed Investment Contract. A contract entered into by the Retire- ment host with insurance companies that provides for a guaranteed rate of return on investments made pursuant to such contract. M ICMA. The International City Management Association. (g) ICMAIRC Trustees. Those Tnrstees elected by the Public Employers who, in accordance with the provisions d Section 3.1(a) hereof, are also mem- bers of the Board of Directors of ICMA or RC. (h) Investment Adviser The Investment Adviser that enters into a contract with the Retirement Trust to provide advice with respect to investment Of this Trust Property. O PbMdios. The Portfolios of investments established by the Investment Adviser 1D the Retirement hast, under the supervision of the Trustees. for the purpose of providing irmestments for the Trust Property O Pudic Employee Trustees Those hum elected by Cts Pudic Employers who, in accordance with the provisions of Section 3.1(a) hereof, are full-time employees of Pudic Employers (p Pudic Employer hustees. Public Employers who serve as trustees of the QulaKed PhM (Q Public Employee A unit of spate or total government, or any agency or instrumentality thered, that has adopted a Deilemed Compensation Plan or a Qualified Plan and has executed this Declaration of Trust. (m) Qualified Plan. A plan sponsored by a Public Employer for the purpose of providng retirement income to its employees which setisfies the qualifi- cation requirements of Section 401 of the Internal Revenue Code, as amended. (n) RC The InWrsational City Management Association Retirement Corpo- ration. APPENDIX B (o) Retirement TAM. The Trust created by this Declaration of Trust. (p) Trust Property. The amounts hold in the Retirement Trust on befall Of the Public Employers in connection with Delerred Compensation Plans and on behatl d the Public Employer Trustees for the exclusive benefit of Employees pursuant to Quali- fied Plans. The Trust Property shall include any income resulting from the invest - mart of the amounts so held. (W Trustees The Public Employee Trustees and ICMA/RC Trustees elected by the Pudic Employers to serve as members of the Board of Trustees of the Retirement Trust. ARTICLE II. CREATION AND PURPOSE OF THE TRUST; OWNERSHIP OF TRUST PROPERTY Section 2.1 Creation: The Retirement Trust is created and established by the execution of this Declaration of Trust by the Trustees and the Pudic Employers. Section 2.2 Purpose: The purpose of the Retirement Trust is to provide for the commingled investment of funds held by the Public Employers in connec- tion with their Deferred Compensation and Qualified Plans. The Trust Prop- " roparty shall be invested in the Portfolios. in Guaranteed Investment Contracts. and in other investments recommended by the Investment Adviser under the supervision of the Board of ThOees NO pan Of the Trust Property will be invested in secunda; issued by Public Employers. Section 2.3 Ownership of Trust Property: The Trustees shall have "at title to the Trust Property. The Public Employers shall be the beneficial owners of the portion of the Trust Property allocable to the Deferred Compensation Plans. The portion of the Trust Property allocable to the Qualified Plans shall be hold for the Public Employer Trustees for the exclusive benefit of the Employees ARTICLE 111. TRUSTEES Section 3.1 Number and Qusllflcation of Trustees. (a) The Board of Trustees shall co 169 of rine Trustees. Five of the Trustees OW be full-time employees of a Public Employer (the Pudic Employee Trustees) who are authorized by such Public Employer to serve as Trustee The remaining four Trustees shelf dist of two persons who. at the time of election to the Board of Trustees, are members of the Board of Directors of ICMA and two Persons who, at the time Of election, are members of the Board of Directors of RC phis OAAAC Trtnlees) One Of the Trustees who is a dvrecor of ICMA. and one of the Trustees who is a director of RC. "I. at the time of election, be full-time employees Of a Pudic Employer. (b) No parson may serve as a Trustee for more than one term in any ten-year period, Section 3.2 El CUW and Tian. (a) Except for the Trustees appointed to fill vacanciesrsu puant to Section 35 hared. the Trustees shall be elected by a voted a majority of the Pudic Employers in accordance with the procedures set forth in the Bylaws. 1io:tion 4.2 Distribution of lh»t Property: Distributions of the pkat Prop - arty shall be made to or on behalf d, the Pudic Employer or Public Employer 'Euatea, in acoadanee with the tarns of the Deferred Compensation Piers, OuWwd Piano or Employer Trisha The Trustees of ft Retirement Trust *a be fully proracted in making payments in accordance with tine diremors of to Public Employers, Pudic tcmplvysr V aless or other Tnudee of ft Ernployer lusts without ascertaining whether such payments are in compliance with the praisiors of the Deferred Compensebon or Ouafied Plans, or the agreements creating the Employer 7ruste. Section 4.3 Esecutbn of Instruments: The Trustees may unanimously desgnale any one or more d the Trustees to execute any instrument or door meat on behalf of all, including but not limited to the signing or endorsement Of any rXtsek and the signing of any applications, insurance and other con- , and the action of such designated Trustee of Trustees shall have the same force and afeot as if taken by all the Trwtees. ARTICLE V. DUTY OF CARE AND LIABILITY OF TRUSTEES Section 5.1 Duty of ata: In exercising the powers hereinbefore granted to the Trustees, the Trustees shall perform all acts within their authority for the exclusive purpose of providing benefits for the Pudic Employers in cones• tion with Deferred Canpersation Plans and Public Employer Trustees pursuant 1D Qualified Plans, and shall perform such acts with the care, skill, prudence and diligence in the circumstances then prevailing that a prudent person act- ing in alike capacity and familiar with such matters would use in the conduct of an enterprise of alike character and with like aims. Section 5.2 Llablllty: The Trustees shall not be liable for any mistake of ** merit or other action taken in good faith. and ler any action taken or omitted in reliance in good tach upon the books of account or other records of the Retirement Trust, upon the opinion of counsel, or upon reports made to the Retirement Trust by any of ifs officers, employees or agents or by the Invest, ment Adviser or any sub -investment adviser, accountants, appraisers or other experts or consultants selected with reasonable rare by the Trustem officers or employees of the Retirement Trust. The Trustees shall also not be liable for many loss sustained by the Trust Property by mason of any investment made in good faith and in accordance with the standard of care set forth in Section 51. uetion 5.3 Bond: No Trustee shall be obligated to give any bond or other security for the performance of any of his or her duties hereunder. ARTICLE VI. ANNUAL REPORT TO SHAREHOLDERS The Trustees shall annually submit to the Pudic Employers and Public Employer Tusises a wriCen report of the transactions of to Retirement Trust, including firms pal staterr»nts.which ship be certified by independent pudic accauntertm shoo sen by the luslaes- ARTICLE VII. DURATION OR AMENDMENT OF RETIREMENT TRUST Section 7.1 Withdrawal: A Public Employer or Public Employer Trustee may, al any time. withdraw from tits Ra mmert hull by delivering to the Board of Vustees a written statement of withdrawal. to such statemett, *a Public Employer or Public Employer Tu tee shat acknowledge that the Trust Pmp- erty allocable to the Pudic Employer is derived from compensation deferred by employees of such Pubic Employer pursuant to its Deferred Compensw tion Plan or horn contributions to the aceourts of Empktyees pursuant to a Ousliped Plan. and shall designate the financial instifubm to whish such property sial be transferred by the Trustees of the Retirement Trust or by the Trustee of the Employer Trust. Section 7.2 Duration: The Retirement Trust shall continue until terminated by the vote d a majority of the Pudic Employers, each casting one vote. Upon larmination, all of the That Property shat be paid out to the Pudic Employers. Public Employer Trustees or the Trustees of the Employer Trusts, as appropriate Section 7.3 Amendment: The Retirement That may be amended by the vote d a majority of the Public Employers, each casting one vote Section 7.4 Procedure: A resolution to terminate or amend the Retirement Trust or to remote a Trustee shall be submitted to a vote of the Public Employers if: (1) a majority of the Trustees so direct, or: () a petition requesting a vote, signed by not kiss than 25% of the Pudic Employers, is submitted to the Trustees. ARTICLE VUI. MISCELLANEOUS Section 8.1 Governing Law: Except as otherwise required by state or kcal law, this Declaration of Trust and the Retirement Trust hereby created shalt be construed and regulated by the laws of the District of Columbia. Section 8.2 Counterparts: This Declaration may be executed by the Pudic Employers and Trustees in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. `( S'P-e- C�I WE -N TRUST AGREEMENT WITH THE ICMA RETIREMENT CORPORATION AGREEMENT made by and between the Employer named in the attached reso- lution and the International City Management Association Retirement Corpora- tion (hereinafter the 'Trustee" or "Retirement Corporation', a nonprofit corpora- tion organized and existing under the laws of the State of Delaware for the purpose of investing and otherwise administering the funds set aside by Employers in connection with deferred compensation plans established under section 457 of the Internal Revenue Code of 1954 (the "Code 1. This Agreement shall take effect upon acceptance by the Trustee of its appointment by the Employer to serve as Trustee in accordance herewith as set forth in the attached resolution. WHEREAS, the Employer has established a deferred compensation plan under section 457 of the Code (the "Plan); WHEREAS, in order that there will be sufficient funds available to discharge the Employer's contractual obligations under the Plan, the Employer desires to set aside periodically amounts equal to the amount of compensation deferred; WHEREAS, the funds set aside, together with any and all assets derived from the investment thereof, are to be exclusively within the dominion, control, and ownership of the Employer, and subject to the Employer's absolute right of with- dmwel, no employees having arty interest whatsoever therein; NOW, THEREFORE, this Agreement witnesseth that (a) the Employer will pay monies to the Trustee to be placed in deferred compensation accounts for the Employer, (b) the Trustee covenants that it will hold said sums, and any other funds which it may receive hereunder, in trust for the uses and purposes and upon the terms and conditions hereinafter stated; and (c) the parties hereto agree as follows: ARTICLE I. GENERAL DUTIES OF THE PARTIES Sectlon 1.1 General Duty of the Employer: The Employer shall make regu- lar periodic payments equal to the amounts of its employees' compensation which are deferred in accordance with the terms and conditions of the Plan to the extent that such amounts are to be invested under the Trust. Section 1,2 Gerwal Duties of the Truslse: The Trustee shall hold all funds received by t hereunder, which, together with the income therefrom, shall con- stitute the Trust Funds. It shall administer the Trust Funds, collect the income thereof, and make payments therefrom, all as hereinafter provided. The Trus- tee shall also hold all Trust Funds which are tranderred to d as sumer Trustee by the Employer from existing deferred compensation arrangements with its Employees under plants described in section 457 of the Coda Such Trust Funds shall be subject to all of the terms and provisions of this Agreement. ARTICLE II. POWERS AND DUTIES OF THE TRUSTEE IN INVESTMENT, ADMINISTRATION, AND DISBURSEMENT OF THE TRUST FUNDS. Seetlon 2.1 Investment Power and Duties of the Trustee: The Trus- tee shall have the power to invest and reinvest the principal and income of the Trust Funds and keep the Trust Funds invested, without distinction between principal and income, in securities or in other property, real or personal, wher- ever Mu ted. including, but not limited to stocks, common or preferred, bonds, APPENDIX C retirement annuity and insurance policies, mortgages, and other evidences of indebtedness or ownership, investment companies, common or group trust funds, or separate and different types of funds (including equity, fixed income) which fulfill requirements of state and local governmental laws, provided, however. that the Employer may direct investment by the Trustee among available investment alternatives in such proportions as the Employer authorizes in connection with its deferred compensation agreements with its employees. For these purposes. these Trust Funds may be commingled with Trust Funds set aside by other Employers pursuant to the terms of the ICMA Retirement Trust. Investment powers vested in the Trustee by the Section may be delegated by the Trustee to any bank, insurance or trust company, or any investment adviser. manager or agent selected by it. Section 2.2 Administrative Powers of the Trustee: The Trustee shall have the power in its discretion: (a) To purchase, or subscribe for, any securities or other property and to retain the same in trust. (b) To sell, exchange, convey, transfer or otherwise dispose of any securi- ties or other property held by it, by private contract, or at public auction. No person dealing with the Trustee shall be bound to we the application of the purchase money or to inquire into the validity, expediency, or propri- ety of any such sale or other disposition. (c) To vote upon any stocks, bonds, or other securities; to give general or special proxies or powers of attorney with or without power of substitution; to exercise any conversion privileges, subscription rights, or other options, and to make any payments incidental thereto; to oppose, or to consent to, or otherwise participate in, corporate reorganizations or other changes affect- ing corporate securities, and to delegate discretionary powers, and to pay any assessments or charges in connection therewith; and generally to exer- cise any of the powers of an owner with respect to stocks, bonds, securities or other property held as part of the Trust Funds. (d) To cause any securities or other property held as part of the Trust Funds to be registered in its own name, and to hold any investments in bearer form, but the books and records of the Trustee shall at all times show that all such investments are a part of the Trust Funds. (e) To borrow or raise money for the purpose of the Trust in such amount. and upon such terms and conditions, as the Trustee shall deem advisable; and, for any sum so borrowed, to issue Its promissory note as Trustee. and to secure the repayment thereof by pledging all, or any part, of the Trust Funds. No person lending money to the Trustee shall be bound to see the application of the money lent or to inquire into its validity, expediency or propriety of any such borrowing. (f) To keep such portion of the Trust Funds in cash or cash balances as the Trustee, from time to time, may deem to be in the best interest of the Trust created hereby, without liability for interest thereon. (g) To accept and retain for such time as t may deem advisable any securi- ties or other property received or acquired by it as Trustee hereunder whether or not such securities or other property would normally be purchased as investment hereunder. (h) To make. execute, acknowledge, and deliver any and ail documents of transfer and conveyance and any and all other instruments that may be necessary or appropriate to carry out the powers herein granted. (i) To settle, compromise. or submit to arbitration any claims. debts. or damages due or owing to or from the Trust Funds; to commence or defend suits or legal or administrative proceedings; and to represent the Trust Funds in all suits and legal and administrative proceedings. 0) To do all such acts. take all such proceedings, and exercise all such rights and privileges. although not specifically mentioned herein, as the Trustee may deem necessary to administer the Trust Funds and to carry out the purposes of this Trust. Section 2.3 Distributions from the Trust Funds: The Employer hereby appoints the Trustee as its agent for the purpose of making distributions from the Trust Funds. In this regard the terms and conditions set forth in the Plan are to guide and control the Trustees power. Section 2.4 Valuation of Trust Funds: At least once a year as of Valuation Dates designated by the Trustee. the Trustee shall determine the value of the Trust Funds. Assets of the Trust Funds shall be valued at their market values at the close of business on the Valuation Date, or, in the absence of readily ascertainable market values as the Trustee shall determine, in accordance with methods consistently followed and uniformly applied. ARTICLE Illi. FOR PROTECTION OF TRUSTEE Section 3.1 Evidence of Action by Employer: The Trustee may rely upon any certificate, notice or direction purporting to have been signed on behalf of the Employer which the Trustee believes to have been signed by a duly designated official of the Employer. No communication shall be binding upon any of the Trust Funds or Trustee until they are received by the Trustee. Section 3.2 Advice of Counsel: The Trustee may consult with any legal coun- sel with respect to the construction of this Agreement, its duties hereunder, or any act, which it proposes to take or omit, and shall not be liable for any action taken or omitted in good faith pursuant to such advice. Section 3.3 Mlecelleneous. The Trustee shall use ordinary care and reasona- ble diligence. but shall not be liable for arty mistake of judgment or other action taken in good faith. The Trustee shall not be liable for any loss sustained by the Trust Funds by reasons of any investment made in good faith and in accor- dance with the provisions of the Agreement. The Trustees duties and obligations shall be limited to those expressly imposed upon it by this Agreement. ARTICLE IV. TAXES, EXPENSES AND COMPENSATION OF TRUSTEE Section 4.1 Ill=$: The Trustee shall deduct from and charge against the Trust Funds arty taxes on the Trust Funds or the income thereof or which the Trus- tee is required to pay with respect to the interest of any person therein. Section 4.2 Expenses: The Trustee shall deduct from and charge against the Trust Funds all reasonable expenses incurred by the Trustee in the adminis- tration of the Trust Funds, including counsel, agency, investment advisory, and other necessary fees. ARTICLE V. SETTLEMENT OF ACCOUNTS The Trustee shall keep accurate and detailed accounts of all investments, receipts, disbursements, and other transactions hereunder. Within ninety (90) days after the close of each fiscal year, the Trustee shall ren- der in duplicate to the Employer an account of its acts and transactions as Trus- tee hereunder. If any part of the Trust Fund shall be invested through the medium of any common, collective or commingled Trust Funds, the last annual report of such Trust Funds shall be submitted with and incorporated in the account. If within ninety (90) days after the mailing of the account or any amended account the Employer has not filed with the Trustee notice of any objection to any act or transaction of the Trustee, the account or amended account shall become an account stated. If any objection has been filed, and if the Employer is satis- fied that it should be withdrawn or if the account is adjusted to the Employer's satisfaction, the Employer shall in writing filed with the Trustee signify approval of the account and it shall become an account stated. When an account becomes an account stated. such account snail ce settled. and the Trustee shall be comp ete!y d scrarged and released. as i sic^ account had been settled and allowed by a judgment or decree of a court of competent jurisdiction in an action or proceeding in which the Trustee and ;he Employer were parties. The Trustee shall have the right to apply at any time to a court of competent jurisdiction for the judicial settlement of its account. ARTICLE VI. RESIGNATION AND REMOVAL OF TRUSTEE Section 6.1 Resignation of Trustee: The Trustee may resign at any time by filing with the Employer its written resignation. Such resignation shall take effect sixty (60) days from the date of such filing and upon appointment of a successor pursuant to Section 6.3., whichever shall first occur. Section 6.2 Removal of Trustee: The Employer may remove the Trustee at any time by delivering to the Trustee a written notice of its removal and an appointment of a successor pursuant to Section 6.3. Such removal shall not take effect prior to sixty (60) days from such delivery unless the Trustee agrees to an earlier effective date. Section 6.3 Appointment of Successor Trustee: The appointment of a successor to the Trustee shall take effect upon the delivery to the Trustee of (a) an instrument in writing executed by the Employer appointing such suc- cessor, and exonerating such successor from liability for the acts and omis- sions of its predecessor, and (b) an acceptance in writing. executed by such successor. All of the provisions set forth herein with respect to the Trustee shall relate to each successor with the same force and effect as if such successor had been originally named as Trustee hereunder. If a successor is not appointed within sixty (60) days after the Trustee gives notice of its resignation pursuant to Section 6.1., the Trustee may apply to any court of competent jurisdiction for appointment of a successor. Section 6.4 Transfer of Funds to Successor: Upon the resignation or removal of the Trustee and appointment of a successor, and after the final account of the Trustee has been properly settled. the Trustee shall transfer and deliver any of the Trust Funds involved to such successor. ARTICLE VII. DURATION AND REVOCATION OF TRUST AGREEMENT Section 7.1 Duration and Revocation: This Trust shall continue for such time as may be necessary to accomplish the purpose for which it was created but may be terminated or revoked at any time by the Employer as it relates to any andlor all related participating Employees. Written notice of such termi- nation or revocation shall be given to the Trustee by the Employer. Upon ter- mination or revocation of the Trust, all of the assets thereof shall return to and revert to the Employer. Termination of this Trust shall not, however, relieve the Employer of the Employer's continuing obligation to pay deferred compensa- tion to Employees in accordance with the terms of the Plan. Section 7.2 Amendment: The Employer shall have the right to amend this Agreement in whole and in part but only with the Trustees written consent. Any such amendment shall become effective upon (a) delivery to the Trustee of a written instrument of amendment, and (b) the endorsement by the Trus- tee on such instrument of its consent thereto. ARTICLE VIII. MISCELLANEOUS Section 8.1 Laws of the District of Columbia to Govern: This Agree- ment and the Trust hereby created shall be construed and regulated by the laws of the District of Columbia. Section 6.2 Successor Employers: The "Employer" shall include any per- son who succeeds the Employer and who thereby becomes subject to the obligations of the Employer under the Plan. Section 8.3 Withdrawals: The Employer may, at any time. and from time to time, withdraw a portion or all of Trust Funds created by this Agreement. Section 8.4 Gender and Number. The masculine includes the feminine and the singular includes the plural unless the context requires another meaning.