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HomeMy WebLinkAboutCity Council Resolution 2325 RESOLUTION NO. 2325 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SARATOGA ADDING ICMA RETIREMENT CORPORATION AS PLAN ADMINISTRATOR TO THE ESTABLISHED DEFERRED COMPENSATION PROGRAM WHEREAS, the City of Saratoga in 1978 established a deferred compensation plan for employees to serve the interests of the City 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 City of Saratoga has determined that the addition to the established deferred compensation program of the plan administered by the ICMA Retirement Corporation will serve the above objectives; and WHEREAS, the City of Saratoga desires that the investment of funds held under its deferred compensation plan be administered by the ICMA Retirement Corporation, as Trustee, with the understanding that such funds will be held by the ICMA Retirement Trust, a trust established by public employers for the purpose of representing the interests of such employers with respect to the collective investment of funds held under their deferred compensation plans: NOW, THEREFORE, BE IT RESOLVED that the City of Saratoga adopts the additional deferred compensation plan, attached hereto as Appendix A, and appoints the ICMA Retirement Corporation to serve as Administrator thereunder; and BE IT FURTHER RESOLVED that the City of Saratoga hereby executes the ICMA Retirement Trust, attached hereto as Appendix B; and BE IT FURTHER RESOLVED that the City of Saratoga hereby adopts the trust agreement, attached hereto as Appendix C, and appoints the ICMA Retirement Corporation as Trustee thereunder, and directs the ICMA Retirement Corporation, as Trustee, to invest 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 Assistant 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 Employer, any required votes under the program. Administrative duties to carry out the plan may be assigned to the appropriate departments. The above and foregoing resolution was passed and adopted by the Saratoga City Council on the 19th day of March , 1986 by the following vote: AYES: CouncitmembersCallc~, Fanelli, Hlava, MoylesandMayor Clevenger NOES: N~ne ABSENT: Nc~e ATTEST: CITY CLERK [ APPENDIX A CITY OF SARATOGA ("EMPLOYER") DEFERRED COMPENSATION PLAN I. INTRODUCTION include any amounl excludable from gross income under this The Employer hereby eslablishes the Ernployer's Delerred 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 Irom 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 isto provide relirement income or any other amount excludable from gross income for and other deferred benetits to the Employees of the Employer in federal income tax purposes. Includible Compensation sha41 accordance with the provisions of section 457 of the Internal be delermined 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 anc~ the Employer, including any amendments or modifications thereof. Such agreement sharl fix the amount tl. 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 Participanl 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 Retlremenl Age: Age 70, unless the Participant has 2.02 Adminislrator: The person or persons named to carry out elected an alternate Normal Retirement Age by written certain nondiscretionary administralive functions under the instrument delivered to the Administrator prior to Separation Ptan, as hereina~er described. The Employer may remove from Service. A Parlicipant's Normal Retirement Age any person as Administrator upon 60 days advance notice-jrl 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 (0) th~ perioddi3 ring Administrator may resign upon 60 days advance notice in which a Participant may utilize the catch-up limitation of Section 5.02 hereunder. Once a Participant has to any extent writing to the Employer, in which the case the Employer shall 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 Parlicipant's alterhale 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 emproyment after attaining age 70, not having previously hereunder, any amount credited to a Parlicipant's Account by elected an alternate Normal Retirement Age, the Parlicipant's reason of a transfer under Section 6.03, or any other amount alternate Normal Relirement 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 Employer. whether as an employee of the Employer or as an relirement age. If the Participant will not become elicjible to independent contractor. and who has been designated by lhe receive benefits under a basic retirement ptan maintained by Employer as eligible to participate in the Plan. the Employer, the Participant's alternate Normal Retirement Age may not be earlier than attainment of age55and 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 thal is 2.10 Participant: Any EmpJoyee who has joined the Plan pursuant attributa01e to services performed for the Employer and that is includible in the Employee's gross income for the taxable to Ihe requirements of Article IV. year for federal income tax purposes; such term does not 2.11 Plan Year: The calendar year. 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 I ncludible 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 Participanl's taxable year in excess of the amount permitted under the Normal Limitation, and the Participant's Includible Compen- employment with the Employer. A Participant shall be deemed to have severed his employment with the Employer sation for any prior taxable year shall be deemed to exclude for purposes of this P~an when, in accordance with the any amount that could have been deferred under the Normal Limitation for such prior taxable year. established practices of the Employer, the employment relationship is considered to have actually terminated. in the 5.03 Seclion 403{b) Annuities: For purposes of Sections 5.01 and case ol a Participant who is an independent contractor of the 5.02, amounts contributed by the Employer on behalt of a 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 Inlernal 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 lion under this Plan for the taxable year in which the Employer will renew the contract or enter inlo a new contract contribution was made and shall thereby reduce the for the Participant's services, and it is nol anticipated that the maximum amount that may be deferred forsuch taxable year. Participant will become an Employee of the Employer. Vl. INVESTMENTS AND ACCOUNT VALUES III. ADMINISTRATION 6.01 Investment of Deferred Compensation: All investments of Participants' Deferred Compensation made by l he Employer, 3.01 Duties of Employer: The Employer shall have the authority to including all property and rights purchased with such make all discretionary decisions affecting the rights or amounts andallincomeatlributablethereto, shall be the sole benefits of Participants which may be required in the property of the Employer and shall not be held in trust for administration of this Plan. Participants or as collateral security for the fulfillment of the 3,02 Duties of Administrator: The Administrator, as agent for the Employer's oaligations 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 respecl to such periodic reports of the status of each Account and the property or have any claim against theEmployerexceptasa disbursement ol benefils on behalf of the Employer in general creditor. accordance with the provisions of this Plan. 6.02 Crediting of Accounts: The Parti cipant'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 inveslment 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 Io 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 annual3y, showing the then-current value of his (including the reduction of such future deferrals to zero) orto Account. change his investment preference (subjecl 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 amounl shall not be treated as a deferral subject to the limitations of Article V, V. LIMITATIONS ON DEFERRAL$ provided however, that the actual amount of any deferral under theplan from which the transfer is made shall be taken 5.01 Normal Limilation: Except as provided in Section 502, the into accounl in computing lhe catch-up limilation under maximum amount of Deferred Compensation for any Section 5.02. Participant for any taxable year shall not exceed the lesser of $7,500.00 or 33 1/3 percent of the Participant's Inclu dible 6.04 Employer Liability: In no event shall the Employer's liability to Compensation for the taxable year. This limitation wilt pay benefits to a Participant under Article VI exceed the value ordinarily be equivalent to the lesser ot $7,500.00 or 25 of the amounts credited to the Participant's Account; the percent of the Participant's Normal Compensation. Employer shall nol 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 or any investments years of a Participant ending before h is 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. 8ENEEFITS sum of (i) the Normal Limitation for the laxable year, and (it) Ihat portion of the Normal Limitation for each ot the prior 7.01 Retirement Benefits and Election on Separalion from taxable years or the Participant commencing after 1978 Service: Except as otherwise provided in this Article VII, the during which the Plan was in existence and Ihe Participant dislribution 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 seclion 457 of the Internal Revenue Code Year of the Parlicipanl's Retirement, and the distribution of by an employer within the same Stale 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 laxable year (including amounts deferred under such other Notwithstanding the foregoing, the Participant may irrevo- cably elect within 60 days following Separation from Service Sections 7,01 or 7.06, a death benefit equal to the value of the Io have the dislributionol benefilscommenceonadateother Participant's Account shall be payabte 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 alter 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 ot the Plan Year of sum unless the Beneficiary elects a different payment oplion the Participanl's Retirement. within 90 days of the Participant's death. A Beneficiary who 7.02 Payment Options: As provided in Sections 7o01.7.05 and 7.06, may elect a payment option pursuant to the provisions of the a Participant may elecl to have the value ol h is Account preced in g sentence shall be treated as if he were a Participant for purposes of determining the payment options available dislributed in accordance with one of the following payment under Section 7.02; provided, however, that the payment options, provided that such option is consistent with the option chosen by the Beneficiary must provide for payments limitations set forth in Section 7.03: to Ihe 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 Ihe Participant. Participant's spouse and must provide for payments over a conlinuing until his Account is exhausted; period not in excess of fifteen (15) years il the Beneficiary is (b) One lump sum payment; not the Participant's spouse. 7.06 Disability: In the event a Participant becomes disabled before [c) Approximately equal monthly, quarterly, semi-annual the commencement ol Retirement benellis under Section or annual payments, calculated Io conlinue 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) Paymenls equal to payments made by the issuer of a last day of the month following a delerminalion of disability retirement annuily 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 Io 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 oplion must be made at Plan if he is unable to engage in any substantial gainful least 30 days before the payment of benellis is to commence. activity by reason of any medical ly determinable physical or I1 a Participant lulls to make a timely election of a payment mental impairment which can be expecled to result in death oplion, benefits shall be paid monthly under option (c) above or be of long-continued and indefinite duration. The for aperiodoffiveyears. : disability of any Participant shall be determined in accordance with uniform principles consistently applied and 7.03 Limitation on Oplions: No payment option may be selectecJ upon Ihe basis of such medical evidence-as the Employer by the Participanl under Section 7.02 unless lhe present value deems necessary and desira hie. of the payments to the Parlicipant, determined as ol the date benefils commence, exceeds 50 laercenl of the value of the 7.07 Unloreseeable 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 Adm inistralor in accordance with the expected reasonably needed to satisfy the emergency need. If such an return mulliples 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 amounl 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 1.04 Post-retirement Dealh Benelits: Should the Participant die through cessation of deferral under the Plan. insurance or after he has begun to receive benelits under a payment other reimbursement, or liquidation ol other assets to the option, the remainin g payments, if any, under the payment extent such liquidation would not itself ca use severe financial option shall be payable to the Participant's Benelici~lry : hardship. An unforeseeable emergency shall be deemed to commencing within 60 days after Ihe Administrator receives involve only circumstances of severe fi nancial hardship to I he proof of the Participanl's death, unless the Beneficiary elects Participant resulting from a sudden and unexpected LIl,n..ess or payment under a different payment option at least 30 days accident of the Participant or of a dependeAt (as defined in prior to the date that the first payment becomes payable to section 152(a) ol the Internal Revenue Code) or the the Beneficiary. In no event shall the Employer or Participant, lossoftheParticipant'spropertyduetocasualty, 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 lile expectancy it the Beneficiary is the Participant's spouse whether such an unforeseeable emergency exists shall be or (it) fifteen (15) years if the Beneficiary is not the based on the merits of each individual case. Participant's spouse. If no Beneliciary is designated in the Joinder Agreement, or if the designated Beneficiary does not survive the Participant for a period of fifleen (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 oplion shall be paid in a lump sum to the estate of sell, assign. pledge. transfer or olherwise 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- conlinue to live for the remaining period ot payments under transferable. the payment option [as modified. if necessary. in conformity with the third sentence ol this seclion), then the commuted IX. RELATIONSHIP TO OTHER PLANS AND EMPLOYMENT AGREEMENTS value of any remaining payments under the paymenl option shall be paid in a lump sum to the estate ot 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 Benellis: Should the Participant die established for the benefit of the Employer's employees. and before he has begun Io receive the benefits provided by participation hereunder shall not affect benefits receivable under any such plan or system. Nothing contained in this Plan shall be period, the Employer notflies the Administralor 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, the Participant the right to be retained in the employ of the Employer. Administrator shall be under no obligation to continue acting as Nor shall anything heroin be construed to modify the terms of any Administrator hereunder. employment contracl or agreement between a Participant and the No amendment or termination of the Plan shall divest any Employer. Participant of any rights with respect to compensation deferred before the date of the amer~dment or termination. X. AMENDMENT OR TERMINATION OF PLAN XI. APPLICABLE LAW The Employer may at any time amend this Ran 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 c~ays 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, bul the Administrator shall be amended. The provisionso~thisPlan shall be interpreted wherever under no obligation to continue acting as Admi nistrator 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. XII. GENDER AND NUMBER The Administrator may at any time propose an amendment to the Plan by an instrument in writing transmitted Io 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 reGuires otherwise. APPENDIX B DECLARATION OF TRUST of ICMA RETIREMENT TRUST ARTICLE I. Name and Definilions ARTICLE fl. Creation and Purpose of lhe 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 participatir~g 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 cornmingled investment of funds held by the Public amended from time to time, Employers in connection with their Deferred Compensation Plans. The (b) Delerred Compensation Plan. A deferredcompensation pran Trust Property shall be invested in the Portfolios, in Guaranteed Investment Contracts and in other ir~vestments recommenc~ed by the eslablished and maintainec~ by a Public Employer for the purpose 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 23 Ownership of Trust Property. The Trustees shalF have the Internal Revenue Code of 1954. as amended. legal title to the Trust Property. The Public Employers shale be the (c) Guaranteed Investment Contract. A contract entered into by beneficial owners ol the Trust Property. the Retirement Trusl with insurance companies that provi~des for a guaranleed rate of return on investments made pursuant Io such contract. ARTICLE III. Truslees (d) ICMA. The International City Management Association. SECTION 3.1. Number arid Qualification of Trustees. (e) ICMAJRC Truslees. 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, arealsomembersoftheBoardofDireclorsoflCMA (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 the time of election to the (f) InvestmentAdviser. The lnvestmentAdviserthatenlers intoa Board of Trustees. are members of the Board of Directors of con tract with the Retirement Trust to provide advice with respect IC MA and two persons who, at the time of electior~, are mere hers to investment of the Trust Property. of the Board of Directors of RC (the ICMA/RC Trustees). One or (g) Employer Trust. A trust created pursuant to an agreement the Trustees who is a director of rCMA, and one of the Trustees between RC and a Public Employer for the purpose of invest~ing who is a director of RC, shall, at the time of election, be full-time and administering the funds set aside by such employe~; .in employees of a Public Employer. connection wilh its deferred compensation agreements wilh its (b) No person may serve as a Trustee for more than one term in employees. any ten-year period. , ' "' (h) Portfolios. The Portfolios of investments established Dy the SECTION 3.2. Election and Term. Investment Adviser to the Retirement Trust, under the supervision of the Trusteesl for the purpose of providing (a) Except for the Trustees appointed to fill vacancies pursuan', investments for the Trusl 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 elecled by the procedures set forth in the By-Laws. Public Employers who, in accordance wilh the provisions ol Section 3.1(a) hereof, are full-time employees ol Public (b} At the first election of Trustees. three Trustees shall be Employers. elected for a term of three years, three Trustees shall be electeC for a term of two years and three Trustees shall be elected for a (j) Public Employer. A unit ol state or local government, or any term ol one year. At each subsequent election, three Trustees agency or instrumentality thereof, that has adopted a Deferred shall be elected for a t'erm of three years and until his or her Compensation Plan and has executed this Declaration of Trust. successor is elected and quaillied (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 Reliremenl Trust on accordance with the procedures set Iorlh in the By-Laws. behalf of the Public Employers. The Trust Property sharl include SECTION 3.4. Resignation and Removal. any income resulting from 1 he investmenl ol the amounls 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 Truslee 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 dale according 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 other as Trustee within sixty days of the date on which he or she ceases instruments that may be necessary or appropriate to carry out the to be a full-time employee of a Public Employer. powers herein granted; SECTION 3.5. Vacancies. The term el office of a Trustee shall (i) vote upon any stock, bonds, or other securities; give general terminate and a vacancy shall occur in the event of the death. or special proxies or powers of attorney with or without power of resignation, removal. adjudicated incompetence or olher incapacity to substitution; exercise any conversion privileges, subscription perform thedutiesofthe office ofaTrustee. lnthecaseofavacancy. the rights, or other options, and make any payments incidental remaining Trustees shall appoint such person astheyintheirdiscretion 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 ot 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; ancl 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 o! 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 appointmenl shall notbecomeeffective priorto such Trust. including, but not limited to, contractswithcustodians 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 Relirement Section 3.5, the Trustees in office. regardless of their number, shall have Trust in such amount. and upon such terms and conditions, asthe all the powers granted to the Trustees and shall discharge all the duties Trustees shall deem advisable, provided that the aggregate imposed upon the Trustees by this Declaration. A written instrument amount of such borrowings shall not exceed 30% of the value el certifying the existence el 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 requireC forthe operation of the act as agents and representatives of the Public Employers collectively. Retirement Trust and decluct 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 or conduct the business of the Trust and to carry on its operations. Such the Employer Trusts and deduct such expenses from that portion power shall include, but shall nol be limited to, the power Io: of Ihe Trust Property beneficially owned by the Public Employer to whom such expenses are properly allocable; (a) receive the Trust Property from the Public Employersor from a Trustee of any Empioyer Trust; (n) pay out of the Trust Property all real and personal property (b) enter into a conlract 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. se~eclion of other Property and allocate any such taxes to the appropriate accounts; in vest menls for the Trust Property and the payment ot reasonable (o) adopt, amend an d repeal the By-Laws, provided that such By- fees to the Investment Adviser and to any su b-investment aCviser Laws are at all times consistent with the terms of th is 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 ancl approve annually the contract with such Investment Adviser; Trust to employers eligi hie 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 a men ded; 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 invesled 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 ot 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 Ihe Retirement Trust created hereby, without such officers, agents, employees. auditors and attorneys as the liability for interest thereon; Trustees may select. provided Ihat the Trustees may not delegate (f) accept and retain lot 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) providefor the indemnilication of/he officers and Trustees of under; the Retirement Trust and purchase fiduciary insurance; (g) cause any securities or other property held as part of the (ul maintain books and records, including separate accounts for 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 ir~ separate accou his as are required under, and consislent with, the bearer form. but the books and recordsot the Trustees shall atall Deferred Compensation Plan of each Public Employer; and {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, allhough 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 Trust Property shall be mace to, or on behalf of, the Public Employer, in reporl of the transactions of the Retirement Trust, including financial accordance with the lerms of the Deferred Compensation Plans or statements which shall be certified by independent public accountants Employer Trusts. The Trustees of the Retirement Trust shall be fully ' chosen by the Trustees. protected in making payments in accordance with the directions of the Public Employers or the Trustees of the Employer Trusts without ascerlaining whether such payments are in compliance with the ARTICLE VII. Duration or Amendment of Retirement Trusl provisions of Ihe Deferred Compensation Plans or the agreements creating the Employer Trusts. SECTION 7.1. Withdrawal, A Public Employer may, at anylime, 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 instrumenl 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 ol 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 t he vote of a majority of the Public Employers, each taken by all the Trustees. casting one vote. Upon termination~ al~ of the Trust Property shall be paid out to the Public Employers orthe Trustees of the Employer Trusts, ARTICLE V. Duty of Care and Liability of Trustees as appropriate SECTICN 7.3. Amendment. The Retirement Trust may be amended SECTION 5.1. Duty of Care. In exercising the powers hereinbefore granted to the Trustees, the Trustees shall perform aH acts within their by the vote of a majority of the Public Employers, each castin g one vote. authority lorthe exCusive purpose of providing benefits forthe Public SECTION 7.4 Procedure. A resolution to terminate or amend the Employers, and shall perform such acts with the care, skill, prudence Retirement Trusl or to remove a Trustee shall be submitled to a vote of anddiligenceinlhecircumslancesthenprevailingthataprudenlperson the Publjc Employers if:(a) a majority of the Trustees so direct, or (b) a acling in a like capacity and familiar with such matters would use in the petition requesting a vote. signed by not less than 25% of the Public conduct of an enterprise of a like characler 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 VIII. Miscellaneous account or other records of the Reliremenl Trust, upon the opinion of SECTION 8.1. Governing Law. Except as otherwise required by state counsel, or upon reports made to the Retirement Trust by any of its or local law, this Declaralion of Trust and the Retirement Trust hereby officers, employees or agents or by the Investment Adviser or any sub- created shall be construed and regulated by the Jaws of the District of investment adviser, accountants, appraisers or other experts or Columbia. consullants selecled wilh reasonable care by lhe Trustees, officers or employees of the Retirement Trust. The Trustees shall also not be liable SECTION 8.2. Counterparts. Th is Declaration may be executed by for any loss sustained bytheTrust Property by reason of any investment the Public Employers and Trustees in twoor more counterparts, each of madeingoodfaithandinaccordancewiththeslandardofcaresetforth which shall be deemed an original but all of which together shall in Section 5.1. constitute one and the same inslrument. 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 "Truslee" or "Retirement the Employer authorizes in connection with its deferred compensation Corporation"). a nonprofit corporation organized and existing underthe agreements with ils employees. For these purposes, these Trust Funds laws of lhe State of Delaware, forthe purposeof invesling and otherwise may be cornmingled with Trust Funds set aside by other Employers administering Ihe lunds 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 ol the vested in the Trustee by lhe Section may be delegated by the Trustee lo Internal Revenue Code of 1954 (the"Code"). This Agreementshall take any bank, insurance or trust company. or any investment advisor, effect upon acceptance by the Trustee of ils appointment by the manager or agent selected by it. Employer to serve as Truslee in accordance herewilh 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: ,~nder section 457 of the Code (the "Plan"); (a) To purchase, or subscribe for, any securities or other WHEREAS. in order that there will be sufficienl 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 amounls 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 assetsderived 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 lhe Employer, and subjecl to the Emproyer's into the validity. expediency. or propriety of any such sale or absolute right of withdrawal, no employees having any interest other disposition. whatsoever therein; (c) To vote upon any stocks, bonds. or other securities; to give NOW, THEREFORE, this Agreement witnesseth that (a) the Employer general or special proxies or powers of attorney with or without will pay monies to the Trustee to be placed in deferred compensation power of substitution; to exercise any conversion privileges, accounts for the Employer; (b) the Trustee covenants that it will hold subscription righls. or other options, and to make any payments incidental thereto; to oppose, or to consent to, or otherwise said sums. and any other lunds which il may receive hereunder. in trust for the uses and purposes and upon the terms and conditions participate in, corporate reorganizations or other changes hereinafter stated; and (c) 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 Trusl Funds. compensation which are deferred in accordance wilh 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 areto 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 alf Trustee shall at all times show that all such investments are a part funds received by il hereunder. which. together with lhe income ol the Trust Funds. therefrom. shall constitute the Trust Funds. rt shall administer the 'Frust (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 shah hereinafterprovided. The Trustee shall also holdallTrustFundswhich 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 subiect money to the Trustee shall be bound Io 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 Dulies of the Trustee in Investment, (f) To keep such portion of the Trust Funds in cash or cash Administration, and Disix~rsemenl ol the Trust Funds. balances as lhe Trustee, from time to time. may deem Io be in the best interesl of the Trust created hereby, without liability for Section 2.1. Investment Powers and Duties of the Trt~slee. The interest thereon. Trustee shall have the power to invest and reinvest lhe principal and income of the Trust Funds and keep lhe Trust Funds invested, without (g) To accept and retain for such time as it may c~eem advisable distinction between principal and income. in securities or in other any securities or other property received or acquired by it as property, real or personal, wherever situated, including, but not limited Trustee hereunder, whether or not such securities or other to. stocks, common or preferred. bonds, retirement annuity and property would normally be purchased as investment hereunder. insurance policies, mortgages, and olher evidences ofindeblednessor (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 atl 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 nerein granted. (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 Ihe Trust Funds; to finally settled, and the Trustee shall be completely discharged and commence or defend sujts or tegal oradministrative proceedings; released. as ifsuch accounthad been settled and allowed byaiudgment and to represent the Trust Funds in all suits and legal and or decree ofa court of competentjurisdictioninanactionorproceeding administrative proceedings, in which the Trustee and tlqe EmpJoyer were parties. (j) To dO all such acts. take ail such proceedings. and exercase 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 ol its accounl heroin, as lhe Trustee may deem necessary Io adminisler 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 agenl 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. AssetsoltheTrustFundsshallbevaluedat removal and an appointment of a successor pursuant to Section 6.3. lheirmarketvaluesatthectoseofbusinessontheValuationDate. 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. Appointmen1 of Successor Trustee. The appointment of unilormly applied. a successor to the Trustee shall take effect upon the delivery to the ARTICLE III. For Proleclion 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 ann 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. ssgnecl by a dulydesignated official of the Employer. No communication All of the provisions set forth heroin with respect to the Trustee shall shall be binding upon any of the Trust Funds or Trustee unlil {hey 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 wilh 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 dutieshereunder, oranyact, which it proposes to lake or omit, andshall apply to any court of competent jurisdiction for appointment of a not be liable for any action taken or omitted in good failh pursuanl to successor. such advice. Section 6.4. Transferof 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 Agreemenl. good faith and in accordance with the provisions of this Agreement. Section 7.1. Duration and Revocatjon. This Trust shall continue for The Trustee's duties and 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 Trusteeshall deductfrom andchargeagainst 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 Erpp!oyer. which the Trustee is required to pay with respect to the interest of any Termination of this Trust shall not, however, relieve the Employerof 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 Employershall 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 ARTICLEV. SettlementofAccounts. TheTrusteeshallkeepaccurate to the Trustee of a written instrument of amendment, and (b) the and detailed accounts of aJl investments, receipts, disbursements. and endorsement by the Trustee on such instrument of ils consenl thereto. other transactions hereunder. ARTICLE VIII. Miscellaneous, Within ninety (90) days after the close of each fisca4 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. Ir any part of the Trust Fund shall be invested throughthemediumofanycommon,collectiveorcommingled regulated by the laws of the District of Columbia. Trust Funds, the fasl annual report of such Trust Funds shall be SectionS.2. Successor Employers. The "Employer" shall includeany submitted with and incorporated in the account. person who succeeds the Employer and who thereby becomes subject to the obligations of the Employer under the Plan. If within ninety I90) days after the mailing of the account or any amended account the Employer has not filed wilh theTrustee noticeof Section 8.3. Withdrawals. The Employer may, at any time, and from any objection to any act or transaction of lhe Trustee, lhe account or lime to time, withdraw a portion or alJ of Trust Funds created by this amended account shall become an accountstated. If any objection has Agreement. been filed, and if the Employer is satisfied that it should bewithdrawn or Section 8.4. Gender and Number The masculine includes the ,f the account is adiusted to the Employer's satisfaction, the Employer feminine and the singular includes the plural unless the context requires shall in writing filed with the Trusteesignifyapproval ofthe account and another meaning. it shall become an account slated.