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Resolution Number 86-3-4-4RESOLUTION NO. 86-3-4-4 1 A DEFERRED A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, ESTABLISHING A DEFERRED COMPENSATION PLAN WITH THE ICMA RETIREMENT CORPORATION WHEREAS, the City of San Juan Capistrano (herein referred to as "Employer") has employees rendering valuable services; and, WHEREAS, the establishing of a deferred compensation plan for such employees will serve 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 will serve the above objectives; and, WHEREAS, the Employer 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 Employer adopts the deferred compensation plan, attached hereto as Appendix "A," and appoints the ICMA Retirement Corporation to serve as Administrator thereunder. BE IT FURTHER RESOLVED that the Employer hereby executes the ICMA Retirement Trust, attached hereto as Appendix "B." BE IT FURTHER RESOLVED that the Employer 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 all funds held under the deferred compensation plan through the ICMA Retirement Trust as soon as is practicable. -1- 1 BE IT FURTHER RESOLVED that the Director of Administrative Service 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. PASSED, APPROVED AND ADOPTED this 4th day of March , 1986 PHILLIP X. SCHWARTZE, MAY ATTEST: CITY CLERK // STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF SAN JUAN CAPISTRANO ) I, MARY ANN HANOVER, City Clerk of the City of San Juan Capistrano, California, DO HEREBY CERTIFY that the foregoing is a true and correct copy of Resolution No. 88-3-4-ist4 , adopted by the City Council of the City of San Juan Cap rano, California, at a regular meeting thereof held on the 4th day of March 1986 , by the following vote: AYES: Councilmen Friess, Bland, Buchheim, Hausdorfer, and Mayor Schwartze NOES: None ABSENT: None (SEAL) MARY ANN r OVER, CI Y CLERK IW -C 16 A; APPENDIX A CITY OF SAN JUAN CAPISTRANO ("EMPLOYER") DEFERRED COMPENSATION PLAN I. INTRODUCTION The Employer hereby establishes the Employees Deferred Compar extion Plan, hereinafter referred to nth* "Ran."The Plan consists of the provisions sat forth in this document The primary purpose of this Pian into provide retirement infante and other deferred benefits to the Employees of the Employer in accordance with the provisions of section 457 W the Internal Reverhw Code of 1954. es amended This Plan shall be an agreement solely between the Employer and participating Employees. If. DERNITIONS L01 AO i* The bookkeeping account maintained for each Participant reflecting the cumulative amount of the Pantclpanro Deferred Cornpensabon. including any income, gains, baa. or Imprenn or tledrseess In market value attributable to the Employees investment W the Particlpahrs Deferred Compensation, and further reflecting any distribu- dona to the Participant or the Particlpnt's Beneficiary and any fees or expenses charged signed con Participant's Deferred Compensation. 202 AaRmYmrma .. The person or persona named to carry out attain nondiscrotkmary edmimmrerive functions under the Plan, as her nafter described The Employs may remove any person es Admin isbstor upon 00 days advance ootid in writing to such person, in which Cess the Employs shall none mother person or person to act as Administrator. The Administrator may resign upon 50 days advance notice in writing to the Employer, in whin the came the Ernployershall name another person or persons to act n Administrator. 2.02 Earsllalwr. The person or pow designated try the Participant in his Joinder Agreement who shell receive any baneha payable hereunder In the event of the Participants death. AW Deferred CerRpeisanort The amount of Normal Componw non otherwise payable to the Participant which the Participant and the Employer mutually Pres to deter hereunder, any amount credited to a PartieipnrsAccount by recon of a transfer under Section 602, or any other amount whin the Employer Agrees to crept to a Participant's Account 205 Employs: Any individual who provides services for the Employer. whether n an employee of the Employer or as an independent contractor, and Who has been designated by the Employs es eligible to participate in the Plan. 2.0E bWupble Cen4Wwoftt The amount of an Employee's Compenaedan from the Employer for Al taxable year that is attributable to service performed for the Employer and that is includible in the EmployeW s gross income for the tumble yea for federal income tax purposes; men tam don hot include any amounton(udable from gross income undermis Plan Warty other plan descried In section 457(b) of the Internel'llevanue Code. any amount excludable from groes income under section 403(b) of the Internal Revenue Code, or any other @mount excludable from gross =we lot federal income tax purport. includible Compensation shall be determined without regard to NY community property laws. LOY Joinds Agreement: An agreement entered Into between an Employee and the Employer, including any amendments or modifications thereof. Such Agreement shall fix Via amount Of deferred C=P"Saon, amity a praterenpamong the investment alternatives designated by the Employer, 'dmignale ens EfnPloyes's BenefW4W or 15neficlaries, and incorporW the terms, condtions, and provisions W the Plan by retW WM 20111 Normal Compnsatlen: The amount of compensation which would be payable to a Participant by the Employer for a amble year if no Joinder Agreement were in effect to defer compensation under this Plan. LN NsrnW Robrwnw l Age: Age 70. union the Participant hes elected an alternate Normal Retfremerht Aga by written instrument delivered to the Administrator pier to Separation from Service. A Participants Normal Retirement Age determines (a) the latest time when benefits may comments under this Plan (union the Participant continua employ - mat after Normal Retif~tAge), and ib) 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 W Section 5.02. hu Normal Retiremnt Age may not be changed. A PartlCIPINN S alternate Normal Retirement Age may not 'be earlier man the earliest date mat the Participant will become eligible to retire and receive unreduced retirement benefits under the Employees basic retirement plan covering the Participant and may not be law than the date the Participant attains age 70. If a Participant continues employment after attaining ago 70, not having previously elected an alternate Normal Retirement Aga, the Participants alternate Normal Retirement Age shall not be later than the mandatory retirement age, it any, established by the Employer. W the age at which the Participant actually acerata from service if the Employer has no mandatory retirement age. If the Participant will not become eligible to receive benefits under a basic retirement plan maintained by the Employer, the Participant's alternate Norval Retirement Age may not be earlier than attainment of age 55 and may not be later than attainment of age 70. 2.10 Participant Any Employee who has joined the Plan pursuant to the requirements of Article IV. 211 Plan Year. The calendar your 16B 112 ftellrermrrt The first date upon which troth of the following shall have occurad With respect tea a Participant: Separation frorrogla vtce,and aDYmlent at Normal Retirement Aga. 113 Sepra0on Iola Ssnkm Severance of the Pankipant's employment with the Employer. A Participant $hall be deemed to have severed his employment with the Employer for purposes of this Plan when. in accordance with ten established practices at the Employer, the employment relationship is considered to have actually terminated. In the cess of a Participant who I$ an I Kill" dant contractor of the Employer, Separation from Service Mall be OEenha , to have occurred when the PartlNpoWe contract uedw which aafwdee an performed hes completely expired and terminated, then is nes foreseeable possibility that the Employer will renew the Commo t'or Mier into a new contract for the Participant's services. and it u not anticipated that the Participant Will become an Employee of the Employer. Ill. ADMINISTRATION 3.01 Duties at Enpoyar: The EmployerMall 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. 3.02 Duties of Admlntelrate .. The Administrator, as agent for the Empioyw. Mali perform nondiscretionery administrative functions in Connection with the Plan, including the maintenance of Participants' Accounts. the provision of periodic reports of the status of each Account and the disbursement of benefits on behalf of ten Employer in accordance with the provisions of this Plan. IV. PARTICIPATION IN THE PLAN 4.01 Insist Pa adom An Employes may become Participant by entering into a Joinder Agreement prior to the beginning of the calendar month in which the Joinder Agreement is to become affective to dates CompMeation not yet earned. 4,02 Amendment of Joinder Agreement A Participant may amend an executed Joinder Agreement to change the amount of compensation not yet "mod which is io be defened - (including the reduction of such future (1111111111115 to zero) of to change his investment Preference (Subject to such m1dhC- tions ax may result from the nature or terms of any investment made by the Employe). Such amendment shall become effective as of the beginning of the calendar month commencing after the dee the amendment is executed. A Participant may at any time amend his Joinder Agreement to change the designated Beneficiary and such amendment Shall become effective immediately. V. LIMITATIONS ON DEFERRALS L01 Normal LIm140pn Except es provided in Section 5.02, the maximum amount of D~od Compensation for any Participant for any taxable year shall not exceed the treat of $7,580.00 or 33 1/3 percent of the Paftielpant'S Includible Compensation for the taxable Yaw. This limitation will ordinarily be equivalent to the lesear of $7.508.00 or 25 percent of the Participant's Normal Compensation. L02 CatdMup Limitation: For each of the lest three (3) taxable year of a Participant ending before his attainment of Normal Retirement Age, the maximum amount of Deferred Compensation shoji be the lessor of (1) $15.OW or (2) the sum of (i) the Normal Limitation for the taxable yew, and (11) that portion of the Normal Limitation for each of the prior taxable yeah of the Pmicipwt commencing atter 1878 during which the Plan was in existence and the Participant was eligible to participate in the Plan (or in any other plan established under Section 457 of the Internal Revenue Code by an employer within the same State an the EmP1oYw) lees the amount of Deferred Compensation for each such Prior taxable year (including amounts deterred under such other plan). For purposes of this Section 5.02, a Participant's Includible Compensation for thiscu,— taxable year Shall be Claimed to include any Deferred Compensation for the taxable year in excess of ten amount permitted under the Normal Limitation, and the Penklprd's Includible Compon- sotion for any prior taxable year shall be deemed to exclude any amount that Could have own Claimed under the Normal Limitation for won prior taxable year. L03 Section 403(b) Annulties: For purposes of Sections 5.01 and 5.02, amounts contributed by ten Employer on behalf of a Participant for the purchase of an many contract described in Section 403(b) of the Internal Revenue Code shall be treated as If Such em0unts constituted Oafmed Compsna! tion under this Plan for the taxable year in which the contribution wait made and shall thereby reduce the maximum amount that may be deforrad forsuch taxable year. VL INVW"DiTS AND ACCOUNT VALUES LM Ifresestenl of DeNnad Crnprlea8rc All investments of Participants' Delerred Compensation made by ten Employer. including all property and rights purchased with such amounts and all income attributable thereto. Mall be the sole properly of the Employer and shall not be hold in trust for Participants or as collateral security for tie fulfillment of the Employer's obligations under the Plan. Such property shall be subject to the claims of general creditors of the Employer. and no Participant or Beneficiary shall hove any vested interest or secured or preferred position With respect to such property or have any claim against the Employer except as a general creditor. L02 CrASng of Aeeounh: The Participant's Account shall reflect the amount and value of the invstmanns or otml prop" obtained by the Employer through the investment of the Participant's Deferred Compensation. It is anticipated that the Employees investments with rspect 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 investment of a Panclpant's Deemed Compensation. Each Participant Mall receive periodic reports. not less frequently than annually. stowing the thenKorrent value of his Account. 8.07 Acceptance of Transfer: Pursuant to an appropriate written agreement, the Employer may accept and credit to a Participant's Account amounts tran$lemed from another employer within the same State representing amounts held by such other employer under an eligible State deferred compensation plan deadrtbed in section 457 of the Internal Revenue Code. Any such transferred amount shall not be treated as a deferral subject to the limitations of Article V. provided however, that the actual amount of any deferral under the plan from which the transfer u made shall betaken into account in computing the catch-up limitation under Section 5.02. L04 Employer LWM"y: In no avant shall the Employees liability to pay benefits to a Participant under Article VI exceed the value of the amounts credited to the Participant's Account: the Employer shall not be liable for losses wising from depreciation or shrinkage in the value of any investments acquired under this Plan. Vol. BENEFITS 7.01 Retirement Sene its and Election an Separation from Serous: Except as otherwise provided in this Article VII, the distribution of a Participant's Account shall commence during the second Calendar, month anw the clow of the Plan yew of the Participant's Retiremanh and the distribution of Such Retirement benefits shall be made m accordance with one of the payment options described in Section 7.02. Notwithstanding the foregoing, the Participant may irrevo- Ably slact within 80 drys following Separation from Sanity to have the dlattibutlM Of benefits COMM"M on adate Other than that described M the preceding eentenot which is at least ed days after the data such election is delivered in ...writing to the Employer and forwarded to the Administrator W not later than 80 days after the close of the Plan Year of the Partidpanrs Retirement. 7.gE P W OPBoas:AsprovidedinSMbM7.01,7.05and7.06, ■ Participant may elect to he" the vale of hill Account distributed in accordance with one of the following payment options, provided tall such option is consistent with the limitations set forth in Section 7.08: (a) Equal monthly. awrtery, semi-annual or annual payments in an amount chosen by the Participant, continuing until his Account is exhausted; (b) One lump sum payment (0) Approximately equal monthly, quarterly, semi-annual er annuai Paymams. Calculated to continue fpr a period certain chosen by the Participant (d) Payments equal to payments meds by the ieswr at ■ retirement annuity policy acquired by the Employer. (e) Any other payment option elected by tea Participant and agreed to by the Employer. A PartltlPAW'S ~iM of a payment Option must be meld at hew 30 days belora the payment of bwWft is to commence. If a Participant fails to make a timely elMion of a payment option, benefila shall be paid menthuy under option ic) above for a period of five years. 7.03 LYnRalloln M Oplions: No payment option may be selMed by the Participant under Section 7.02 unless the presentvalue of the payments to the Participant, determined as of the daft benefits commence, exceeds 50 percent of the value Of the Pamcipalhrs Account M of the data bewfta commence. Present value oaterminatiMa under this Section shall be made by the Administrator in accordance with the expected return multiples sat Win in section 1.72-8 of the Federal Income Tax Regulations (or any successor provision to such reguistioM). 7.04 Post- oUrnowt Death G=wMlc Should the Participant del Ower he hal begun to rem" benafIts under a payment option, the remaining payments, if any, under the payment option shall be payable to the Participants Beneficiary commencing within 00 days after the Administrator receives Proof at the Participars death, unless the Beneficiary elects payment under a different payment option at least 30 days prior to the date that the first payment becomes payable to the Beneficiary. In mo want 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 *period Iongerthan (t) the Beneficiary's life expectancy if the Beneficiary is the Participant's spouse or (ii) fifteen (15) years if the Beneficiary is not the Participant's spouse. M no Beneficiary is designated in the Joinder Agreement ord the designated Beneficiary does not survive the Participant tar it period of fifteen (15) days, Oslo the commuted value of army remaining payments under the payment option shall be paid in a lump sum to the Mate of the Participant. If the designated Beneficiary surieves the Participant for a period of 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 Payment option shall be pad in ■ lump sum to the estate of the Beneficiary. 7.08 Pre-ntlremenl Death Benefits: Should the Participant die before he has begun to roost" the benefits provided by 16C Sections 7.01 or 7.08. a death benelil AUMAdihe vidaOf the Participant's Account snail be payable to the Benatleury commending no later than ed days ager the close of the Plan Year In which the Participant would nava attained Normal Retirement Age. Such death be all shall be paid in a lump sum unless the Beneficiary w*ats a different payment opW within ed days of the Participant's death. A Beneficiary who may elect • payment option pursuant to the provisions of the Preceding sentence Mall be treated asit he were Participant for purposes of determining the payment options wailabN under Section 7.07 provided, hCewver, that the payment Option chceen by the Be isry, must provide for payments to the Beneficiary over a period co longer than the IIB expectancy at the Beneficiary it the Beneficiary is the Participant's spouse and must provide for payments over a period not in excess of fiftem (15) Years if the Beneficiary is not the Participant's spouse. 7.0 Disability: In the Went a Participant becomes disabled before the commencement Of Retirement benefits under Section 7.01, the Participant may elect to commence benefits under One Of the payment Options described in Section 7.02 on the last day of the month following a determination of disability by the Employer. The Participant's request for such determination must be made within a resednaba it" after the impairment which constitutes the disability *CCUM A Participant Mall be considered disabled for purposes of this Plan if he is unable to engage in any SubstantW gainful activity by "MM Of any medically determinable physical or mental impairment which tan be expected to result in death or be at long-confinued and indefinite duration. The disability at any Participant shall be determined in accordance with uniform principles consistently applied aro upon the basis of such medial evidence at thi Employer deems necessary and desirable. 7.07 Unforeseeable Rmargo cies: In the went an unforeseeable emergency *Count, a Participant may apply to the Employer to receive that part of the value of his account that is reasonably needed to Satisfy tea emergency need. If such an application is approved by the Employer, the Participant shelf be paid only such amount as the Employer deems necessary to meat the emergency need, but payment shall not be made to the extent that the financial hardship may be relieved through oessatton of deferral under the Plan, insurance or Other reimbursement, or liquidation of other Wets to the extentsuch liqutdetionwou(dretttselfcauses w*tinanciat hardship. An unforeseeable emergency shall be deemed to involve only circumstances of severe financial hardship to the Participant resulting from a sudden and unexpected illness or accident of the Participant or of • dependent las defined in section 152(x) of the Internal Revenue Code) of the Participant. IOea of the Participant's property due to casualty, or other similar and extraordinary unforeseeable circum- stances arising as a result of wants beyond the control otthe Participant. The need t0 sends Participant's child t0 college or to purchase a new home shell not be considered unforeseeable emergencies. The determination as to whether such an unforeseeable emergency exists shall be based on the merits of each individual one. Will. NON -ASSIGNABILITY No Participant or Beneficiary shall have any right to commute, sell. assign. pledge. transfer or Othewise convey or encumber the right to receive any payments hereunder, which payments and rights are expressly declared to be non -assignable and non- transferable. 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 shalt not affect benefits receivable under 16D any such plan or system. Homing contained in this Plan shell be deemed t0 Constitute an employment contract Or agreement between any Participant and ten Employer or to give any Participant the right to be chained in the employ Of the Employer. Nor Shall anything Main be construed to modify the terms of any employment Contract or agreement between a Participant and the Employer. X. AMENDMENT DR TERMINATION OF PLAN The Employer may at any tune amand this Plan provided that it transmits such amendment in writing to the Administrator st least 30 days prior to the effective date of the amendment. The e t of the Administrator shell not be required in order for such amendment to become effective. but the Administrator shall be under no obligation toeontinus acting UAdminisirator hereunder if it disapproves Of such amendment The Employer May at any time terminate this Plan. The Administrator may at any time propose an amendment t0 ten Plan by an instrument in writing transmittedto ten Employerat least 30 days before the efbctive date of the amendment. Such amendment shall become ~Ive unless, within such 30 -day period, the Employer notifies the Administrator in writing that it disapproves such amendment in which ease such amendment shall not become effective. In the event of such disapproval. the Administrator shall be under no obligation to continue acting es Administrator hereunder. No amendment or termination of the Plan shall divest any Participant of any rights with respect t0 compensation deterred before the date of ten amendment or termination. XL APPUCABLE LAW This Plan shall be construed under the laws of the state where the Employer is located and in established with the intent that it meet an requiremente of an"Nlgible SWeoererredcompensOlm plan" under section 457 of the Internal Revenue Code of INS. se amended. The provisions of this Plan shall be interpreted whatever possible in conformity with the requirements of that section. XIL GENDER AND NUMBER The masculine pronoun, whenever used harem, Shall include the temmiM pronoun, and ten singular shall include the plural. except where the context requires otherwise. DECLARATION OF TRUST of ICMA RETIREMENT TRUST ARTICLE L Name and DeRNdene SECTION 1.1. Name. The Name of the Trust crested hereby is the ICMA Retirement Trust. SECTION 1.2 Definitioee. Mmerave they are used herein, the following lerms shell have the following respective meanings. (a) By -Ueda. The Bylaws referred to in Section 4.1 hereof, u amended tram time to time. (b) Deferred Compensation Plan. A deferred compensation Plan established and maintained by a Public Employerfor the purpose of providing rRlrrimam Income and cow deferred benefits to its employees in accordance with the Provisions of section 437 of the Internal Revenue Code of 1954. as amended. (c) Guaranteed Investment Contract. A contract entered into by the Retirement Trust with insurance companies that provides for a guaranteed rate of return on investments made pursunt to such contract. (d) ICMA. The International City Management Association. (e) ICMA/RC Trustees. Those Trustees elected by the Public Employers who, in accordance with the provisions of Section 3.1(a) hereof, are also members of the Board of Directors of ICMA or RC. (f) Investment Adviser. The Investment Adviser that enter into contract with the Retirement Trust to provide advice with respect to investment of the Trust Property. (g) Employer Taut. A trust crested pursuant to an agreement between RC and a Public Employer for the Purpose of investing and administering the funds set aside by Such employe in connection with its defatrad compensation agfeements with its employees. (h) Portfolios. The Portfolios of investments established by the Investment Adviser to the Retirement Trust. under the supervision of the Trustees. for the purpose of providing investments for the Trust Property. (I) Public Employee Trustee. Those Trustees elected by the Public Employers who, in accordance with the provisions of Section 3.1(x) hereof, are full-time employses of Public Employers. (i) Public Employer. A unit of state or local government, or any agency or instrumentality thereof, that half adopted a Deferred Compensation Plan and hes executed this Decimation of Trust. (a) RC. The International City Management Association Retirement Corporation. (1) Retirement Trust. The Twat crested by this Declaration of Trust. (m) Trust Property. The amounts hold in the Retirement Trust on behalf of the Public Employers. The Trust Property shat include any income resulting from the investment of the amounts so held. (n) Trustees. The Public Employee Trustees and ICMA/RC Trustees elected by the Public Employes to serve as members of the Board of Trustees of the Retirement Trust. 16E APPENDIX B ARTICLE II. Creation and Pelrpoes of the Trust OemanMp of Tnr! SECTION 2.1. Creation. The Retirement Tryst is ciliated and established by the execution of this Declaration of Trust by the Trustees and the participating Public Employers. SECTION 22 Purpose. The purpose of the Retirement Trust le to provide for the commingled investment of funds halo by the Public Employers in connection with their Deferred COmpenaalton Plahe.;The Trust Property shall be invested in the Portfolios, in Guaranteed Investment Contracts and in other investments recommended by the Investment Adviser under the supervision of the BOad of Trustees. SECTION 2.3 Ownership of Trust Property. The Trustees shall have legal title to the Trust Property. The Public Employers Shap be the beneficial owners of the Trust Property. ARTICLE 111. Truster r SECTION 3.1. Number and Ouslification of Trustees. (a) The Board of Trustees shall consist o1 nine Trustees. Five of the Trustees shell be full-time employees of a Public Employer (the Public Employes Trustees) who are authorized by such Public Employer to serve as Trustee. The remaining four Trustees shall consist 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 whe, at the time of election, are members of the Board of Directors o1 RC (the fCMA/RC Trustess). One of the Trustees who is a director of ICMA. and one of the Trustees who is a director of RC, shall, at the timeof election, be full-tirtm employes of a Public Employer. (b) No person may serve as a Trustee for more then one term in My ten-yesr period. SECTION 3.2 Election and Term. (a) Except for the Trustees appointed to fill vacancies pursuant to Section 3.5 hereof, the Trustees shall be elected by a vole of a majority of the Public Employers in accordance with the Procedures Set forth in the By -Laws. (b) At the first election of Trustees. three Trustees shall be elected for a lamn of three years, three Trustees shall be eledted for a term of two years and three Trustees shall be elected for a term of one year. At each subsequent election. three Trustees Shall be elected for a term of three years and until his or her successor is elected and qualified. SECTION 3.3. Nominations. The Trustees who are full-time employees of Public Employers shall serve ss the Nominating COmmitles for the Public Employ% Trustees. The Nominating Committee shall choose candidstes for Public Employee Trustees in accordance with the procedures am forth in the By -Laws. SECTION 3.4. Resignation and Removal. (a) Any Trustee may resign as Trustee (without need for prioror subsequent accountmgl by an instrument in writing signed by the Trustee and delivered to the other Trustees and such resignst ion hall be effective upon such delivery. Or at a later date according 16F to the terms of the instrument. Any of the Trustees may be removed for cause, by a vote of a majority of the Public Employers. (b) Each Public Employes Trustee shall resign his or her position as Trustee within sixty days of the date on which he or she ceases to be a full-time employee of a Public Employer. SECTION 3S Vacancies. The term of office of a Trustee shall torrnmate and a VWWICy atoll occur in the want o1 the death, resignation. removal, adjudicated incompetence or other incapacity to perform the duties of the office of a Trustee. InthecYeof a vacancy, the rematrnng Trustess slWl appoint such person as they in their disCMion Shall sea fit (subject to the limitations set forth In this Section). to sewn for the unexpired portion of the term of the Trustee who has resigned or ottarsiae corned to be a Tnstes. The appointment shell be made by a writer instrument signed by a majority of the Trustees. The person appointed must be the same type of Trustee (i.e.. Public Employee Trustee or ICMA/RC Trustee) as the person who hes caused to be a Tr si a An appointment of a Trustee may be Mede In anticipation of a vacancy to occur at a later date try reason of rattement or resignation, provided that Such appointment shell not become effective prior to Such retirement or resignation. Whenever a vacancy in the number at Trustees shall occur. until such vacancy is filled as provided in this Swoon "the Trustees in office, regardless oltheir number, shall have Ni the powers granted to the Trustees and shall discharge all the duties imposed upon the Trustees by this Deduction. A written instrument certifying the existence of such vacancy signed by a majority of the T istses mall be Conclusive widence of the existence of Such vacancy. SECTION 3.8. Trustees Serve in Representative Capacity. By mmuting this Declaration, each Public Employer agrees that the Public Employ" Trustees Netted by the Public Employers ars authorized to Act so agents and representatives of the Public Employers collectively. ART$= IV. Pewee of Trusses SECTION e.1. General Powers. The Trustees shell have the power to conduct the business of the Trust and to carry on its operations. Such power shall include, but shall not be limited to, the power to: (a) receive the Trust Property from the Public Employers or from a Trustee of any Employer Trust; (b) enter into a contract with an Investment Adviser providing, among other things, for the establishment and operation at the Portfolios. selection of the Guaranteed Investment Contracts in which the Trust Property may be invested, Selection of other investments for the Trust Property and the payment of reasonable fees to the Imestment Adviser and to any sub -investment adviser retained by the Investment Adviser, (c) review annually the performance of the Investment Adviser and approve annually the contract with such Investment Adviser; (0) invest and reinvest the Trust Property in the Portfolios. the Guaranteed Investment Cont rsCts and in any other investment recommended by the Investment Adviser, provided that it a Public Employer has directed that Is monies be invested in specified Portfolios or in a Guarerneed Investment Contract, the Trustees of the Retirement Trust shall invest such monies In acWrdanee with such directions: (of keep Such portion of the Trust Property in cash or cash beimoes u theTnutees, from time totime, msy deem to ea in the best interest of the Retirement Trust crested hereby, without lieitility for interest thereon; (f) accoot and retain for Such time as they may dawn advisable erry securities or other prop" received or acquired by them es Trustees hereunder, whether or not Such securities or other property would normally be purchased es investments here- under. (g) cause any securities or other property hold as part of ter Trust Property to be registered in the name of the Retirement Trust or in the name of a nominee, and to hold any investments in bearer form, but the books and records of the Trustees shall at all times show that all such investments ars a pan of the Trust Property: (h) make. eaecute, acknowledge, and deliver any ans all 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) vote upon any stock, bonds, or other securities: give general or spacial proxies or powers of attorney with or without power of wbHitution: eserciss any Conversion privileges, Subscription righta or other options. and make any payments Incidental 11"o; oppose,. or consent to, or otherwise participate in. Corpoete reorganizations or other Changes affecting Corporate Securities, and delegate discretionary powers, and pay any aewarhento or charges In Connection therewith: and generally exercise any at the powers of an owner with respect to stocks, bonds, securities or other property held es part of the Trust Property: I)) anter Into contlac or arrangements for goods w services required in mrinection with the operation of the Retirement Trust, Including, but not limited to, dontrects with custodians and contracts for the provision of administrative services; (k) borrow or raise money for the purpose of the Retirement Trust in such amountand upon such terms and conditions, u the Trustees shall deem advisable, provided that the aggregate amount of won borrowings shall not exceed 3p% of the value of Me Truat'PrOperly. No person lending money to the Trustees shall be bound to saw the application of the money tem or to inquire into is validity. expediency or propriety at any such borrowing; +c (1) incur reasonable expenses es required fortheoperatfon ofthe Roirement Trust and deduct such expenses from.the Trust Property; (M) pay expanses property allocable to the Trust Property incurred in connection with the Deferred Compensation Plans or the Employer Trusts and deduct wish expenses from that portion at the Trust Property beneficially owned by the Public Employer to whom won expenses are property allocable: (n) pay out of the Trust Propene all real and personal property taxes, income taxes and other tude of any and all kinds which, in the opinion of the Trustees, are property levied, or aims"cl under existing or future ewe upon, or in respect of. the Trust Property and allocateany such taxes to ter appropriate accounts: (o) adopt. =and and repeal the By-Laws,provided thstwchBy- Lam are atoll times Consistent with the terms of this Declaration of Trust; (p) employ persons t0 make available interests in the Retirement Trust to employers eligible to maintain adeferred Compensation plan under section 457 of the Internal Revenue Code. as amanded; (q) issue the Annual Report of the Retirement Trust, and the disclosure documents and other literature used by the Retirement Trust; (r) make loans, including the purchase of debt obligations. provided that all such loans shall bear interest at the currant market rate; (s) contract for, and delegate any powers granted hereunder to. Such offiosn, Agents, employees, auditors and attorneys es the Testees may elect. provided that the Trustees may not delegate the powers set forth in paragraphs (b), (c) and (o) of this Section 4.1 and may not delegate any powers if such delegation would violate their fiduciary duties; (q provide forth indemnification of the officers and Trustees of the Retirement Trust and purchase fiduciary insurance; (u) maintain books and records, including separate, accounts for each Pudic Employer of Employer Trust and such additional separate accounts as are required Under, and Consistent with, the Deferred Compensation Plan of each Public Employer, and r (v) do all such acts. take all such proceedings, and exercise all such rights and privileges• although not specifically mentioned heron. a the Trustees may doom necessary or appropriate to 48minieter the Trust Property and to cury outthe purldsetof the Retirement Trust. SECTION 1.2. Distribution of Trust Property. Distributions of the Trust Property shall be made to, or on behalf of, the Public Employer, in accordance with the terms of the Deferred Compensation Plans or Employer Trusts. The Trustees of the Retirement Trust shall be fully protected in making payments in accordance with the directions of the Public Employers or the Trustoet of the Employer Trusts without asmrfaming whether such paymailts,-.me in compliance with ter provisions of the Deferred Compknsation PFitla tx the agreements creating the Employer Trusts. SECTION 4.3. Execution of Instruments. The Trustees may" unanimously designate any one or more of the Trustees to execute any instrument or document on behalf of all. including but no limited to the signing or adorsoment of arry check and the argtng of any applications, insurance and other contracts, and the action of such designated Trustee or Trusses shell havethesameform andetfect u if taken try all the Trustees. M ARTICLE V. Duty of Can and Liability of Trustees SECTION 5.1. Duty of Cam. 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 Public Employm. and shall perform such acts with the care, skill. prudence and diligence in thecircumstanca then prevailing that a prudem person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like arms. SECTION 5.2 Liability. The Trustees shot not be liable for any mistake of judgment Or Other action taken in good faith, and for my action taken or omitted in reliance in good faith 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 its officers. employees or agents or by the If ertment Adviser Or any sub - investment adviser, accountants, approisens or other "ports or wrisultents selected with reasonable care by the Trustees, officers or employees of the Retirement True. The Trustees shall also not be liable for my lose sustained by the True Prop" by meson ofany investment made in good faith and in aCeordarnce with the standard of cafe set forth in Section 5.1. C n=4 16G SECTION 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 VL Arm" Report to Shareholdare The Trustees shell atmually submit to the Public Employers a written report of the transactions of the Retirement Trust, including financed statements which shall be certified by independent public accountants chosen by the Trustees. ARTICLE VIL D or AmendawnA of Retirement Tort r " SECTION7.1. Withdrawal. A Public Employer may, at anytime, with- draw from this Retirement Trust by delivering to the BOardof Trusteesa statement to that effect. The withdrawing Public EmployWs beneficial intense in the Retirement Trust shall be pad out to the Public Employer or to the Trust" of the Employer Trust, as appropriate. SECTION 7.2 Duration. The Retirement Trust shall continue until terminated by the vote of a majority of the Public Employers, each costing one vola. Upon termination, all of the Trust Property shall be Pad out to ler Public Employeeothe Trusteesof ttmEmployer Trues. as appropriate. SECTION 7.3. Amendment. The Retirement Trust may be amended by the vote of a majority of the Public Employee. each Ming onevots. SECTION 7.4. Procedure. A resolution to terminate Or amend the Retirement Trust or to remove a Trustee shall be submitted to a vote of the Public Employee it (a) a majority of the Trustees so direct, or (b) a portion requesting a vote, signed by not lees than 25% of the Public Employers• is submitted to the Trustees. ARTICLE VIII. mrceteraus SECTION &1. Governing Law. Except os otherwise required by state or local law, this Declaration of Trust and the Retiremelt Trust hereby created snail be construed and regulated by the laws of the District of Columbia. SECTION 8.2 Counterparts. This Declaration may be executed by the Public Employers and Trustees in two or morecounterpars, each of whim shall be deemed an original but all of which together shall constitute one and the same inatrument. IF 16H TRUST AGREEMENT WITH THE ICMA RETIREMENT CORPORATION AGREEMENT made by -*tthe Employer named in the attached resolution and th({0wriarsen ational City management Association Retirement Corporation (114iviridi ter the 'Trustee" er "Retirement Corporation"). a nonprofit o0%pontion organized andexbting under the Iowa of the State of Delaware. for the purpit"at investing and otherwise administering the funds set aside by Employers in connection with deferred Compensation plane established 'Under section 457 of the Internal Revenue Code of 1954 (the "Code'J. This Agreement shall take effect upon acceptance by the Tnatse of its appointment by the Employer to serve as Trustee in accordance herewith as est forth in the attached resolution. WHEREAS. the EmpioYer hes established a Whmrestg.cmpensatfon plan under section 457 of the Cede (the "Plan"); WHEREAS. in order that then will be, sufficient fundstiiifbble to discharge the Employees contractual obligations under the Plan, this Employer demes to sat aide 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 Employers absolute right of withdrawal, no employees having any interest whatsoever therein: NOW. THEREFORE this Agreement witnesseth that (a) the Employer will pay monies to the Trustes to be placed in deferred compensation accounts for the Employer. (b) tho lrustee 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 term$ and conditions hominner stated: and (o) the parties hereto agree as follows: ARTICLE I. Derteral DodNe Of the Parhea Section 1.1. General Duty of the Employer. The Employer shall make regular periodic payments equal to the amounts of its employe compensation which an deferred in accordance with the terms and conditions of the Plan to the extent that Such amounts aceto be invested under the Trust. Section 1.2. General Duties of the Trustee. The Trustee shell hold ell funds received by it hereunder. which, together with the income therefrom. shall constitute the Trust Funds, it shell administer the Trust Funds. collect the income the cf. and mase payments therefrom, all as hereinafter provided. The Trutt" Stoll also hold all Trust Funds which are transferred to it as successor Trustee try the Employer from existing deferred admpnsation arrangements with its Employees under plans described in section 457 of the Cods. Such Trust Funds shall be subject to all of the terms and provisions of this Agreement. ARTICLE 11. towers and Duties of dos Trustee In Investment. Administretbn, ntl Dbbursatnerrt at the Trust Funds. Section 2.1. Investment Powers and Duties of the Trustee. The Trustee 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, nal or personal, wherever situated, including, but not limited to, stocks. Common or preferred, bonds, retimmnt annuity and insurance policies, mortgages, and other evidences of indebtedness or ownership• investment companies, common er group trust funds, or Separate and different typo of funds (including equity, fixed income) which fulfill requirements Of state and locel gOvernmental laws, APPENDIX C err: provided, however, that the Employes may direct investment by tfw Trustee among Milable Invest aftmafives In suCh proportlof w es the Employer authorizes in connection with its deferred compensation sgmemnb with its employees. For these purposes. these Trust FYnda may be commingled with True) Funds set wide 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 advisor, manager or agent selected by it Section 2.2. Administrative Powere 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 team the same in trust. (b) To sell, exchange. convey, transfer or otherwise dispoee of any securities or other propetty hold by it, by private contract. or at public auction. No person dealing with the Trustee shall be bound to see the application of the purchase moheyor to inquire into the validity, expediency, or propriety of any such sad Or other disposition. (C) To vote upon any stocks, bonds, or other securities; to give general or special proxist or powers of attorney with or without Power of substitution; to exercise my conversion privilegas, Subscription rights, or other options, and to make any payments incidental thereto: to oppose, or to Conant to, or otherwise participate in, corporate reargnizatlone or other changes affecting corporate securitlM, and to delegate discretionary powers, and to pay any mossomenb or charges in connection therewith; and generally to exercise any of the powers of an owner with respect to stock$, bondq, Securities or other property held as pan 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 nn at all times show tharall Such investments aro apart of the Trust Funds. (a) To borrow or raise money for the purpose ofthe Trust in such amount. and upon such terms and conditions, as the Trustee shall deem advisable: and. for any sum ao borrowed, to issue its promissory note as Trustee, and to secure the repayment thereof by Wedging all, or my part, of the Trust Funds. No person lending money to the Trustee shall be bound to see the application of the money Int or to inquire into its validity, expediency or propriety Of MY such borrowing. (1) To keep such portion of the Trust Funds in cash or pan balances es 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 it may deem advisable any securities or other property received or acquired by it as Trust" hereunder, whether or not such Securities or other property would normally be purchased as investment hereunder. (h) To mks. execute, acknowledge, and deliver any and all documents of transfer and conveyance and any and all other instruments that may be necessary or appropriate to carry sol the powers herein granted. 110 (I) To settle, compromise, or submit to arbitration my claims, debts. or damages due or owing to or from the That Funds: to common r defefgsuia r legat r administrative proceedings: ase -as reprnom the Trust Funds in all wits and legal and administratM proceedings. (j) To do all such acts, take all won proceedings. andexercise all such rights and privileges, although not specifically mentioned heron, as the Trustee may deem necessary to administer the Trues Funds and to carry out the purposes of this Trust. Section Z3. DNtributkna from the Trust Funds. The Employer herby appoints the Trustee as its agent for the Purpose of making distributions from the Trust Funds. In this regard ten terms and conditions sat forth m the Plan are to guide and tontrot the Trustee's P7~ - Section 2.4. Valuation of That Funds. At least once a year as of Valuation Dale da"neted by the'Ttlatee, the Trcafae shall dote mien the value of the Trust Funds. AaasisotttaTnat Fundsshell seVWU*d at their market values at the close of business on the Valuation Date, or, in the absence of readily ascertainable market values ss the Trustee shall determine. in accordance with methods consistently followed and uniformly applied. ARTICLE III. For Prosection of Trusin. Section 3.1. Evidence of Action by Employer. The Trust" may rely upon any mrtificale. notice or direction purporting to have been signed on behalf N the Employer which She Tr at" believes to hoe been signed by a duty designated official of the Employer. No communication "I be binding upon ray of the Trust Funds or Trustee until they are received by the Trustee. Section 3.2 AdvwA of Counsel. The Trustee may consult with any legal counsel with respect to the Construction of this Agreement its duties hereunder. of My W. which it proposes to to" orrm t.andshaa hot be liable for any action taken of omitted in good faith pursuant to such advice. Section 3.3. Mism4eneous. The Trustes shall use ordinary care and reeeonabW diligence, but marl net be usble ftir"mistake of iudgmem or other action tsken in good faith. The Tnatea shall notbe Ilablefrany lose sustained by the Trust Funds by reasons of arty investmentmeds in good faith and in accordance with the provisions N this Agreement The Trustee's duties and obligations shell be limited to those expressly imposed upon it by this Agreement. ARTICLE N. Tues. Expenses a sl Compe lean N Trusted. Ssction4.1. Tues. The Trustee shall deduct from andcharge against the Trust Funds ray lasso on the Trust Funds print, income thereof or which the Trustee is required to pay with respect to the interest of any person therein. Section 42 Expenses. The Trustee shall deduct from and charge against the Trust Fundsall reasphableexpenaesincurred bythalrustes in the administration of the Trust Funds, including counsel, agency, investment advisory, and other necessary fees. AISTICl.EV. SOUWer t*IACWWdL The Trustee shall keep accurate and detailed accounts of all investments, receipts, disbursements, and other transactions hereunder. Within hoary (90) days after the close of each fiscal year, the Trust" shall rarrdo In duplicate to the Employer an account of its acs and transactions as Trustee hereunder. If any pat of the Trust Fund "it be invested through the medium of any common, collective or commingled Trust Fumn, the ler annual report at such Test Funds shed be submitted with and incorporated in the account. It within ninety (20) days atter the mailing of the account or any amended account the Employer has not filed with the Trustee notice of any objection dray act or transaction of the Trust". the account or amended sccpunt shall become an account stated. If ray objection has been filed, and it the Employer is satisfied that it should be withdrawn or if ten account is adjusted to the Employers aatistaW kin, the Employer end in writing filed with the Trust" signify approval of the account and it shall become an account stated. 161 When an account becomes an account stated, such account Shaul be _ finally tettled, rad the Trustee a"[ ee completely discharged and released. as it such account had been sef led and allowed by a judgment or degree at a court of competent jurisdiction in an action or proceeding in which the Trustee and the Employer wen peru". The Trustee shall have the right to apply at any time to a court of competent jurisdiction for the judicial settlement of its account. ARTt= VI. Resignation end Removal at Tnletee. Section 6.1. Realgnstbon of Trustee. The Trustee may resign at any time by Ming with the Employer itawrittn resignation. Such resignation shall take ehact sixty (60) days from the data of such filing and upon appointmem of a succusor pursuant to Section 6.3., whichever shall first occur. ., Section &2. Removal of Trustee. The Empjoyw may remove the Trustee at any time by delivering to the Tnytp)t a written notiq of Its removal and An appointment of a sumeasr.,pumuam to Section 6.3. Such removal shall not take�t Prim to sixty (60) days from such delivery unless the Trustee d an eanfer effective data. Section 6.3. Appointment of-Sueaesor Trustee. The appointment of a successor to the Trustee "I take Noel upon the delivery to the Trustee of (a) an instrument in writingaxecuted by the Employer appointing such wocanor, and exonerating such suomeaor from IWNlity for ten Will arid, Omismcns of. its Preoec$u". md.(b) an acceptance in writing. "Muted by such successor. All of the provisions ale forth herein with respect to the Trustee shall relate to each suo lior with the same form and effect as it such successor hod been Originally named ss Trustee hereunder. It a successor, is not appointed with sixty (60) days after g e Trustee gives norm of its resignation pursuant to Section 6.1., the Trustee may apply dray court of competent jurailkliM 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 atter the final account of the Trustee has been property settled, ten Trustee shall transfer and deliver cry of the Trust Funds involved to such suconsdr. ARTICLE VR. Duration and Resacsean et Trust Agdenard. Section 7.1. Duration and Revocation. This Trust shall continue for such time as may be necessary to accomplish the Purpose int which it was created but may be terminated or revoked at any time by the Employer as it relies to my mdlr NI related participating Employees. Written notice of such termination Or revocation shun be given to the Trustee by the Employer. Upon termination or revocation of the Trust all of the asesrs thereof shall return to and revert to the Employer. Termination of this Trust shall not, however, relieve the Employerof ten Employers continuing obligation to pay deferred compensation to Employees in accordance with the terms of the Plan. Section T.2. Amendment. The Employershell have the right to amend this Agreement in whole and in part but only with the Trustee's written consent Any such amendment shall become enactive upon (a)delivery to the Trustee of a written instrument of amendment and (b) the endorsement by the Trustee on such instrument of its consent thereto. ARTICLE Vlll. Nwoonerleona, Section &I. Lasa of the District of Columbia to Govern. This Agreement and the Trust hereby created atoll be construed and regulated by the laws of the District of Columbia. Sadism &2. Successor Employers. The "Employer' shall inciudemy person 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 deli of Trust Funds created by this Agreement. Section 8.4. Gender and Number. The masculine includes the feminine and thesingular includes the plural unless the context requires mother meaning.