HomeMy WebLinkAbout1352 ResolutionAT
Eve yn ells, City Clerk
A ROVED AS TO FOR
• RESOLUTION NO. 1352
A RESOLUTION entering into a Deferred Compensation Plan
WHEREAS, the City of Pasco has in its employ certain personnel; and
WHEREAS, said employees are and will be rendering valuable services
to the City of Pasco; and
WHEREAS, the City of Pasco has considered the establishment of a
Deferred Compensation Plan for the said employees made available to the
City of Pasco and to said employees by the International City Management
Association Retirement Corporation; and
WHEREAS, said employees often are unable to acquire retirement
security under other existing and available retirement plans due to the
contingencies of employment mobility; and
WHEREAS, the City of Pasco receives benefits under said plans by
being able to assure reasonable retirement security to said employees, by
being more able to attract competent personnel to its service, and by increasing
its flexibility in personnel management through elimination of the need for
continued employment for the sole purpose of allowing an employee to qualify
for retirement benefits; NOW, THEREFORE,
BE IT RESOLVED that the City of Pasco establish said Deferred Compensation
Plan for said employees and hereby authorizes its Mayor to execute the Deferred
Compensation Plan with the International City Management Association
Retirement Corporation, attached hereto as Appendix A; and,
IT IS FURTHER RESOLVED that the City Manager may, on behalf of the City
of Pasco, execute all Joinder Agreements with said employees and other eligible
officials and officers, which are necessary for said persons participation in the
Plan, an example of which appears at Appendix B, except that any Joinder
Agreement for said designated official shall be executed by the Mayor.
PASSED by the City Council of the City of Pasco this 2 day of
June , 1980.
ennis J. De'Fe ice, City Attorney
E A Snider, Mayor Pro Tern
Appendix 1
.
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INTERNATIONAL CITY MANAGEMENT ASSOCIATION
RETIREMENT CORPORATION
DEFERRED COMPENSATION PLAN
Amended as of June 28 1974 and March 23 1979
It is hereby agreed that this DEFERRED COMPENSATION PLAN shall be in effect on the date upon which the Employer has caused it to be
executed by an official affixing his signature on behalf of the governing Body in the space provided below However the DEFERRED
COMPENSATION PLAN will not be legally binding upon the International City Management Association Retirement Corporation until a Notice of
Plan Acceptance has been supplied by it
Legal Name of the Employer
Attest for the Employer For the Employer
By
Signature of Authorized Official Signature of Authorized Official
Date of Signature
Print Name and Title
,
SEE INSTRUCTIONS FOR IMPLEMENTATION PRIOR TO COMPLETING THIS SECTION
Complete the following prior to mailing this Agreement to the Retirement Corporation
Full Name (City of County of etc )
Title of Official to whom correspondence and reports are to be mailed
(not name)
Address (include zipcode)
Employers Federal Tax Identification Number
How often will you make contnbutions 9
What is the date of your first contribution'?
Total Number of Employees Number of employees eligible to participate
PRELIMINARY STATEMENT
ESTABLISHMENT OF THE PLAN
AMENDMENTS
The International City Management Association Retirement Corpora
tion hereinafter the Retirement Corporation or ICMA RC is a nonprofit
Delaware Corporation It has been classified as a tax exempt organization
under the provisions of Section 501(c)(3) of the Internal Revenue Code As
an aid in the improvement of state and municipal administration in general
the Retirement Corporation is organized for the purpose of receiving and
investing deferred compensation funds of state and local governments
and their related and controlled public interest organizations which are
tax-exempt under Section 501 of the Internal Revenue Code hereinafter
referred to as Employers to act as trustee and/or agent for the collection
and reinvestment of the income therefrom and to act as agent for such
Employers and at their explicit direction for the distribution of the funds and
assets of their accounts to their participating Employees (including
independent contractors) in accordance with options provided in this
International City Management Association Retirement Corporation
Deferred Compensation Plan hereinafter referred to as the Plan or the
ICMA-RC Plan
The ICMA RC Plan is set out below in two parts I The Deferred
Compensation Employment Agreement and II The Master Trust Agree
ment As set out below the Employer adopts this Plan as its Agreement
with the participating Employees and ICMA RC and the Employees shall
participate in the Plan through the execution of a Joinder Agreement
which by its terms incorporates all of the provisions of the Plan A copy of
the Plan shall be supplied to each Employee for his study and under
standing prior to his execution of the Joinder Agreement The Employers
through their participation in the Plan express their desire to have the
benefit of the continued loyalty service and counsel of their Employees
and to assist them in providing for the contingencies of old age
dependency disability and death
This Plan may be amended from time to time for purposes of assuring its
conformance to the requirements of any applicable law or rule or regula
tion pursuant thereto and to preserve the tax exempt status of the Plan
and the Retirement Corporation No amendment may either directly or
indirectly operate to derive any participating Employer of its beneficial
interest in the Trust as it is then constituted The Retirement Corporation
will notify the participating Employers of any amendment to this Plan no
later than sixty days prior to its effective date Any such amendment will
become effective after the expiration of that period of time except as to
those Employers as may file an objection No amendment proposed by
participating Employers shall be effective unless agreed to by the ICMA
Retirement Corporation over the signature of an Officer
PART I DEFERRED COMPENSATION
EMPLOYMENT AGREEMENT
1 Deferred Compensation—Initial Decision—Future Changes—Limits
11 For the purpose of this Plan the following definitions apply
a Total compensation is the total of compensation to be paid by
the Employer for the services of the Employee regardless of the
terms used for its components as for example base pay in
addition to base pay employer's contributions etc
b Deferred compensation is that amount or percentage of the
total compensation of the Employee which the Employer currently
defers from the payment to the Employee and instead deposits
same into a Deferred Compensation Account with the Retirement
Corporation under the terms of this Plan Deferred compensation
may include amounts from or percentages of both base pay and
employer s contributions or it may include amounts from or
percentages of only one of these components
c Current compensation is that portion of the Employee s total
compensation which is not deferred compensation as deferred
compensation is defined herein and
d Base pay is the stated salary of the Employee
1 2 Compensation may be deferred for any calendar month only if a
Joinder Agreement for such deferral has been entered into before
the beginning of such month The determination of the initial
amount or percentage and of any future change in amount or
percentage of deferred compensation must be made before the
beginning of the calendar month for which the compensation is
payable Such future changes may be made more frequently than
once per calendar year only at the express direction of the
Employer
1 3 The amount of total compensation may be adjusted from time to
time without altering the terms of this Plan However the per
centage or amount of deferred compensation may be adjusted only
in accordance with 1 2 above Any such adjustment of the per
centage or amount of deferred compensation shall be com
municated to the Employer s agent the Retirement Corporation
and the deposits in the adjusted percentages or amounts if
changed from the prior existing percentages or amounts shall
thereafter be made by the Employer into its Retirement Corpora
lion Account
1 4 Compensation deferred under the Plan for any Employee s
taxable year beginning after December 31 1978 shall not exceed
the lesser of (1) $7 500 or (2) 33 1/3 percent of the difference
between an Employee s total compensation and his deferred
compensation except as provided in 1 5 below
1 5 For one or more of the Employee s last three taxable years ending
before he attains normal retirement age under the Plan the ceiling
set forth in Paragraph 1 4 above shall be the lesser of —
a $15000 or
b the sum of —
(1) the Plan ceiling established for purposes of Paragraph 1 4
for the taxable year (determined without regard to this
Paragraph) plus
(2) so much of the Plan ceiling established for purposes
of Paragraph 1 4 for taxable years before the taxable year
as has not theretofore been used under Paragraph 1 4 or
this Paragraph
The amount of compensation deferred under this Paragraph shall
not exceed an Employee s total compensation The words normal
retirement age as used in this Paragraph shall mean the
designated age as defined in Paragraph 6 below
2 Deferred Compensation Account Under this Plan deferred compen
sation shall be credited and paid into the Trust established and
maintained with the International City Management Association Re
tirement Corporation as Trustee The Retirement Corporation is a
nonprofit corporation formed for the specific purpose of investing and
otherwise administering the funds of said Trust The Trust may be revoked
at any time by the Employer and upon revocation of said Trust all of the
assets thereof shall return to and revert to the Employer The Employer
shall keep accurate books and records with respect to the Employee s
total compensation or other earned income and with respect to amounts
paid into said Trust
3 Ownership of Funds Neither the Employee nor any beneficiary
thereof shall have any interest whatsoever in the funds paid into the
Deferred Compensation Account in the property or rights purchased with
such funds or in the income attributable to such funds property or rights
which shall at all times remain as assets of the Employer subject to its
absolute dominion control and right of withdrawal until such time as the
funds or assets of the Account are distributed to the Employee in
accordance with the provisions of this Plan The obligation of the
Employer to pay deferred compensation is contractual only the
Employee having no preferred or special interest or claim by way of trust
annuity or otherwise in and to the specific funds and assets held in the
Deferred Compensation Account The contractual obligation of the
Employer to pay the funds and assets in its Deferred Compensation
Account to the Employee or his beneficiary on the applicable distribution
2
date shall be a continuing obligation upon the Employer and shall not be
relieved by any agreement between the Employer and any other party
except as provided in Section 2 of Paragraph 13 of this Plan and shall not
be affected in any manner by amendment or revocation of the Trust
referred to in Paragraph 2 herein or by reversion of the Trust Funds to the
Employer The provisions of this Paragraph shall supersede and control
any other provision of this Plan which could be interpreted to be in conflict
therewith
4 Administration of Funds The funds deposited in the Deferred
Compensation Account shall be invested and reinvested by the Retire
ment Corporation as provided for in the Trust Fund described in Part ll of
this Plan in any manner which in its sole discretion it deems desirable
without regard at any time to any legal limitation governing the investment
of such funds The Account shall also reflect the gain or loss resulting
from the investment and reinvestment thereof This Trust Fund may be
commingled with others established by the Trustee with other Employers
under this Plan
5 Designation of Investments Each participating Employer being
advised of the preferences of and for the benefit of each of its
participating Employees shall designate the percentage of the deferred
compensation involved which shall be invested in the respective types of
investment funds (accounts) of the Retirement Corporation such as the
Equity (Variable) Fund or the Fixed Income Fund unless the laws of the
applicable state or local government require otherwise in which case
those laws shall govern Future elections to change the percentage to be
invested in each type of Fund may only be made prior to and for the next
succeeding annual period of service for which the compensation is
payable by filing written notice thereof with the Retirement Corporation
Such notice will not be effective until received by the Retirement
Corporation
6 Payment of Deferred Compensation The words designated age as
used in this Paragraph and in Paragraph 10 of this Plan shall mean the
designated age which appears in the Joinder Agreement executed by the
participating Employee These words as used in this Paragraph in
Paragraph 10 and in the Joinder Agreement shall also include the
following without repetition therein or later in the sole discretion of the
Employer at the end of his employment agreement if Empioyee
continues in the employ of the Employer after he attains the designated
age Except as provided in Paragraph 9 (unforeseeable emergency) no
payments of deferred compensation shall be made prior to an Employee s
separation from service with the Employer At such time as the Employee
reaches the designated age becomes permanently disabled or dies
whichever occurs first he or his beneficiary or beneficiaries nominee or
estate is/are entitled to receive payment from the Deferred Compensa
tion Account outstanding on the date on which one of the foregoing
occurs Payments occasioned by the Employee having reached the
designated age becoming permanently disabled or by his death shall be
made in accordance with the provisions of Paragraph 7 hereof as follows
a Payments in monthly quarterly semi annual or annual payments
over the period of life expectancy of the Employee in accordance with
the following procedure
Upon reaching the designated age or becoming permanently
disabled from permanent full time employment whichever first
occurs the Employee s life expectancy shall be determined by
reference to Standard U S Mortality Tables the amounts of
assets and accumulations in the Deferred Compensation Account
shall be computed together with a reasonable rate of return on
said assets less the amount of expected monthly distribution
over the life expectancy of the Employee and a monthly amount
shall then be mathematically determined the payment of which in
equal monthly installments over the period of the life expectancy
of the Employee shall completely deplete the said Account at the
end of the last year of life expectancy or
b Payments in monthly quarterly semi annual or annual payments
in accordance with the following procedure
Unless the Employee s employment terminates prior to the time he
attains the designated age amounts equal to the benefits
received by the Employer under retirement annuity policies shall
be paid to the Employee at such time as he attains the designated
age or in the case of death payment to his beneficiary or
beneficiaries nominee or estate pursuant to the procedures
provided in said policies and Paragraphs 7 and 8 of this Plan, or
c Payments in monthly quarterly semi-annual or annual install-
ments over a period of not exceeding ten (10) years said payments to
include a reasonable return on the funds assets and accumulations in
the Deferred Compensation Account less the amount of expected
monthly quarterly semi annual or annual distribution over the said
ten (10) year period or
d One lump-sum payment
7 Selection of Method of Payment The method of payment shall be
selected by the Employer acting through the Retirement Corporation as
its duly authorized agent due consideration being given to health
financial circumstances and family obligations of the Employee In this
regard the Employee may be consulted however he shall have no voice
in the decision reached
8 Payments in the Event of Death
a During the Period of Distribution In the event of the Employee s
death during the period of distribution the Employee s beneficiary
shall be entitled to receive payments in accordance with the payment
method being employed at the time of the Employee s death With the
consent of the Employer acting through the Retirement Corporation
as its duly authorized agent said beneficiary may elect to receive a
lump sum in lieu of installment payments
b Prior to Distribution In the event of the death of the Employee prior
to the distribution the funds and assets of the Deferred Compensa
tion Account shall be paid in accordance with one of the methods
described in Subparagraphs a b c or d of Paragraph 6 hereof The
selection of said method shall be made by the Employer acting
through the Retirement Corporation as its duly authonzed agent
9 Payments in the Event of Unforeseeable Emergency In the event that a
participating Employee is faced with an unforeseeable emergency (de-
termined in the manner prescnbed by Federal regulation), the Employer
may direct the Retirement Corporation as agent to make disbursements
from the Deferred Compensation Account of amounts reasonably neces-
sary to satisfy the emergency needs of the Employee
10 Payment Dates Payments shall commence on the first day of the
month following the attainment of the designated age or later on the first
day of the month after the end of his employment agreement if Employee
continues in the employ of the Employer after he attains the designated
age or likewise following permanent disability or death and in the case of
installment payments shall be made continuously thereafter on the first
day of each succeeding month or in the event quarterly semi-annual or
annual payment installment periods are applied then continuously
thereafter on the first day of each succeeding month which begins the time
period (quarterly etc (involved until such time as the Deferred Compensa-
tion Account is depleted in its entirety
11 Disbursing Agent The Retirement Corporation shall act as agent of
the Employer for purposes of disbursing payments The ultiinate obligation
for making such payments however shall remain with the Employer
12 Accumulation During the Distribution Period During the period of
distribution the Employee or his beneficiary or beneficiaries nominee or
estate as the case may be shall continue to be credited with all the
interest accumulations and increments on the undistributed funds and
assets in the Deferred Compensation Account until such Account is
depleted in its entirety
13 Section 1 Termination of Employment Upon termination of the
Employee s services for any reason other than death the funds assets
and accumulations in the Deferred Compensation Account shall not be
transferred to an account with a new employer of the Employee and
instead they shall remain in the original Account as assets of the old
3
,
time by filing with the Employer its written resignation Such resignation
shall take effect sixty (60) days from the date of such filing and upon
appointment of a successor pursuant to Section 6 3 whichever shall first
Occur
Section 6 2 Removal of Trustee The Employer may remove the
Trustee at any time by delivering to the Trustee a written notice of its
removal and an apppointment of a successor pursuant to Section 6 3
Such removal shall not take effect prior to sixty (60) days from such
delivery unless the Trustee agrees to an earlier effective date
Section 6 3 Appointment of Successor Trustee The apointment of a
successor to the Trustee shall take effect upon the delivery to the Trustee
of (a) an instrument in writing executed by the Employer appointing such
successor and exonerating such successor from liability for the acts and
omissions of its predecessor and (b) an acceptance in writing executed
by such successor
All of the provisions set forth herein with respect to the Trustee shall
relate to each successor with the same force and effect as if such
successor had been originally named as Trustee hereunder
If a successor is not appointed within sixty (60) days after the Trustee
gives notice of its resignation pursuant to Section 6 1 the Trustee may
apply to any court of competent jurisdiction for appointment of a
successor
Section 64 Transfer of Funds to Successor Upon the resignation or
removal of the Trustee and appointment of a successor and after the final
account of the Trustee has been properly settled the Trustee shall
transfer and deliver any of the Trust Funds involved to such successor
ARTICLE VII Duration and Revocation of Trust Agreement
Section 7 1 Duration and Revocation This Trust shall continue for
such time as may be necessary to accomplish the purpose for which it was
created but may be terminated or revoked at any time by the Employer as it
relates to any and/or all related participating Employees Written notice of
such termination or revocation shall be given to the Trustee by the
Employer Upon termination or revocation of this Trust all of the assets
thereof shall return to and revert to the Employer Termination of this Trust
shall not however relieve the Employer of the Employer s continuing
obligation to pay deferred compensation upon the applicable distribution
date to any and/or each Employee with whom the Employer has entered
into a Deferred Compensation Employment Agreement
Section 7 2 Amendment The Employer shall 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 effective upon (a) delivery to
the Trustee of a wntten instrument of amendment and (b) the endorsement
by the Trustee on such instrument of its consent thereto
ARTICLE VIII Miscellaneous
Section 8 1 Laws of the State of Delaware to Govern This Agreement
and the Trust hereby created shall be construed and regulated by the laws
of the State of Delaware
Section 8 2 Successor Employers The term Employer shall include
any person who succeeds the Employer and who adopts the Deferred
Compensation Plan of the Retirement Corporation and becomes a party to
this Agreement with the consent of the Trustee
Section 8 3 Withdrawals The Employer may at any time and from
time to time withdraw a portion or all of the Trust Funds created by this
Agreement and related Deferred Compensation Employment
Agreements
Section 8 4 Definitions Definitions in the By Laws of terms phrases
etc used herein apply to the same herein The masculine includes the
feminine and the singular includes the plural unless the context requires
another meaning
6
• 4,
by this 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 Powers of the Trustee The Trustee shall
have the power in its discretion
(a) To purchase or subscribe for any securities or other property
and to retain the same in trust
(b) To sell exchange convey transfer or otherwise dispose of any
securities or other property held 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 money or to inquire into the
validity expediency or propriety of any such sale or other
disposition
(c) To vote upon any stocks bonds or other securities to give
general or special proxies or powers of attorney with or without
power of substitution to exercise any conversion privileges
subscription rights or other options and to make any payments
incidental thereto to oppose or to consent to or otherwise
participate in corporate reorganizations or other changes ef
fecting corporate securities and to delegate discretionary powers
and to pay any assessments or charges in connection therewith
and generally to exercise any of the powers of an owner with
respect to stocks bonds securities or other property held as part
of the Trust Funds
(d) To cause any securities or other property held as part of the
Trust Funds to be registered in its own name and to hold any
investments in bearer form but the books and records of the
Trustee shall at all times show that all such investments are a part of
the Trust Funds
(e) To borrow or raise money for the purpose of the Trust in such
amount and upon such terms and conditions as the Trustee shall
deem advisable and for any sum so borrowed to issue its
promissory note as Trustee and to secure the repayment thereof
by pledging all or any part of the Trust Funds No person lending
money to the Trustee shall be bound to see the application of the
money lent or to inquire into its validity expediency or propriety of
any such borrowing
(f) To keep such portion of the Trust Funds in cash or cash
balances as the Trustee from time to time may deem to be in the
best interest of the Trust created hereby without liability for
interest thereon
(g) To accept and retain for such time as it may deem advisable any
securities or other property received or acquired by it as Trustee
hereunder whether or not such securities or other property would
normally be purchased as investments hereunder
(h) To make 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 out the
powers herein granted
(1) To settle compromise or submit to arbitration any claims
debts or damages due or owing to or from the Trust Funds to
commence or defend suits or legal or administrative proceedings
and to represent the Trust Funds in all suits and legal and
administrative proceedings
(I) To do all such acts take all such proceedings and exercise all
such rights and privileges although not specifically mentioned
herein as the Trustee may deem necessary to administer the Trust
Funds and to carry out the purposes of this Trust
Section 2 3 Distributions from the Trust Funds The Employer hereby
appoints the Trustee as its agent for purposes of selecting the method by
which distributions from the Trust Funds are to be made as well as for
purposes of making such distributions In this regard the terms and
conditions set forth in the Agreements to be executed between the
Employer and its Employees and any subsequent modifications thereof
are to guide and control the Trustee s power
Section 2 4 Valuation of Trust Funds At least once a year as of
Valuation Dates designated by the Trustee the Trustee shall determine
the value of the Trust Funds Assets of the Trust Funds shall be valued at
their market values at the close of business on the Valuation Date, or in the
absence of readily ascertainable market values as the Trustee shall
determine in accordance with methods consistently followed and uni-
formly applied
ARTICLE III For Protection of Trustee
Section 3 1 Evidence of Action by Employer The Trustee may rely
upon any certificate notice or direction purporting to have been signed on
behalf of the Employer which the Trustee believes to have been signed by a
duly designated official of the Employer No communication shall be
binding upon any of the Trust Funds or Trustee until they are received by
the Trustee
Section 3 2 Advice of Counsel The Trustee may consult with any
legal counsel with respect to the construction of this Agreement its duties
hereunder or any act which it proposes to take or omit and shall not be
liable for any action taken or omitted in good faith pursuant to such advice
Section 3 3 Miscellaneous The Trustee shall use ordinary care and
reasonable diligence but shall not be liable for any mistake of Judgment or
other action taken in good faith The Trustee shall not be liable for any loss
sustained by the Trust Funds by reason of any investment made in good
faith and in accordance with the provisions of this Agreement
The Trustee s duties and obligations shall be limited to those expressly
imposed upon it by this Agreement notwithstanding any reference of the
Plan
ARTICLE IV Taxes, Expenses and Compensation of Trysteo
Section 4 1 Taxes The Trustee shall deduct from and charge against
the Trust Funds any taxes on the Trust Funds or the income thereof or
which the Trustee is required to pay with respect to the interest of any
person therein
Section 4 2 Expenses The Trustee shall deduct from and charge
against the Trust Funds all reasonable expenses incurred by the Trustee in
the administration of the Trust Funds including counsel agency and other
necessary fees
ARTICLE V Settlement of Accounts The Trustee shall keep ac-
curate and detailed accounts of all investments receipts disbursements
and other transactions hereunder
Within ninety (90) days after the close of each fiscal year the Trustee
shall render in duplicate to the Employer an account of its acts and
transactions as Trustee hereunder It any part or me Trust Fund shall be
invested mrougn me medium of any common collective or commingled
Trust Funds the last annual report of such Trust Funds shall be submitted
with and incorporated in the account
If within ninety (90) days after the mailing of the account or any amended
account the Employer has not filed with the Trustee notice of any objection
to any act or transaction of the Trustee the account or amended account
shall become an account stated If any objection has been filed and if the
Employer is satisfied that it should be withdrawn or if the account is
adjusted to the Employer s satisfaction the Employer shall in writing filed
with the Trustee signify approval of the account and it shall become an
account stated
When an account becomes an account stated such account shall be
finally settled and the Trustee shall be completely discharged and
released as if such account had been settled and allowed by a judgment or
decree of a court of competent jurisdiction in an action or proceeding in
which the Trustee and the Employer were parties
The Trustee shall have the right to apply at any time to a court of
competent jurisdiction for the Judicial settlement of its account
ARTICLE VI Resignation and Removal of Trustee
Section 6 1 Resignation of Trustee The Trustee may resign at any
5
Employer until such time as they are distributed in accordance with the
provisions of this Plan except as provided in Section 2 of this Paragraph
Section 2 Transfer of Employment with Consideration Between
Employers—Tripartite Agreement In the event the Employee accepts
employment with a new employer participating in the ICMA RC Deferred
Compensation Plan then if the past Employer finds that it has no present
or future need of the funds assets and accumulations in the said Account
for the payment of its general creditors or for any other purpose what
soever in consideration of its desire to avoid the continuing expense of
maintaining records and receiving examining verifying and filing annual
reports of the Retirement Corporation and in consideration of avoiding the
possible future expenses of litigation of Employee s continuing con
tractual rights to payment of deferred compensation on his retirement as
herein provided in the event of any possible future revocation and
withdrawal by the past Employer of the funds assets and accumulations
in the said Account the past Employer may at its discretion authorize the
Retirement Corporation as its agent to propose to the new Employer that
the funds assets and accumulations of the said Account be transferred to
the ownership control and right of withdrawal of the new Employer and to
do so in the event the new Employer in consideration of the increased
value of the Employee s services by reason of the experience gained while
in past employment agrees to accept same and the respective
Employers and the Employee sign an appropriate form of Agreement in
which the new Employer also agrees to assume the continuing contractual
liability to pay deferred compensation so transferred upon retirement of
the Employee and the Employee releases the past Employer from said
continuing obligation to do same
Section 3 Payment of Deferred Compensation after Termination of
Employment In the event a participating Employee separates from
service with the Employer prior to the designated age which appears in the
Joinder Agreement the Employer may direct the Retirement Corporation
as agent to distribute the funds and assets of the Deferred Compensation
Account to the Employee in one lump-sum payment
14 Losses The Employer shall not be responsible for any loss due to
investment or failure of investment of funds and assets in said Deferred
Compensation Account nor shall the Employer be required to replace any
loss whatsoever which may result from said investments
15 Nonassignability of Deferred Compensation The Employee during
his lifetime shall not be entitled to commute encumber sell or otherwise
dispose of his rights to receive deferred compensation payments provided
for herein and the right thereto shall be nonassignable and nontrans
ferable In the event of any attempted assignment or transfer thereof the
Employer shall have no further liability under this Agreement
16 Participation in Other Employee Benefit Plans Nothing herein con
tamed shall in any manner modify impair or affect the existing or future
rights or interest of the Employee (a) to receive any employee benefits to
which he would otherwise be entitled or (b) as a participant in any future
pension plan it being understood that the rights and interests of the
Employee to any employee benefits or as a participant or beneficiary in or
under any or all such plans respectively shall continue in full force and
effect unimpaired and the Employee shall have the right at any time
hereafter to become a beneficiary under or pursuant to any and all such
plans
17 Definitions The meaning of any term or terms phrase clause or
sentence used in this Agreement which is also used in the By Laws of the
Retirement Corporation shall be defined as these are defined in ARTICLE
II Section 2 of the By Laws Masculine pronouns whenever used herein
include the feminine pronouns and the singular includes the plural unless
the context requires another meaning
18 Validity of Agreement This Agreement shall not be valid or en
forceable unless signed by an officer of Employer authorized by the
governing body of the Employer as for example the City Council and
unless this Agreement is implemented by the execution of the Joinder
Agreement
PART II MASTER TRUST AGREEMENT
AGREEMENT made by and between the aforenamed Employer and the
International City Management Association Retirement Corporation
(hereinafter the Trustee or Retirement Corporation ) a nonprofit
corporation organized and existing under the laws of the State of
Delaware for the purpose of investing and otherwise administering the
funds set aside by Employers in connection with Deferred Compensation
Agreements with Employees
WHEREAS the Employer desires to enter into agreements with its
Employees whereby its Employees agree to defer payments of specified
percentages of or amounts from their total compensation as deferred
compensation is defined in said agreements until the occurrence of
certain events
WHEREAS in order that there will be sufficient funds available to
discharge the foregoing contractual obligations the Employer desires to
set aside periodically amounts equal to the amount of compensation
deferred
WHEREAS the funds set aside together with any and all investments
thereto are to be exclusively within the dominion control and ownership
of the Employer and subject to the Employer s absolute right of with
drawal the Employee having no interest whatsoever therein
NOW THEREFORE this Agreement witnesseth that (a) the Employer
will pay monies to the Trustee to be placed in Deferred Compensation
Accounts for the Employer (b) the Trustee covenants that it will hold said
sums and any other funds which it may receive hereunder in trust for the
uses and purposes and upon the terms and conditions hereinafter stated
and (c) the parties hereto agree as follows
ARTICLE I General Duties of the Parties
Section 11 General Duty of the Employer The Employer shall make
regular periodic payments equal_to the amounts_of_ its Employees
compensation which are deferred in accordance with the terms and
conditions of Deferred Com ensatio I II I L •
t7ffi1oyees or with any subsequent modification thereof
Section 1 2 General Duties of the Trustee The Trustee shall hold all
funds received by it hereunder which together with the income therefrom
shall constitute the Trust Funds It shall administer the Trust Funds collect
the income thereof and make payments therefrom all as hereinafter
provided The Trustee shall also hold all Trust Funds which are transferred
to it as successor Trustee by the Employer from existing deferred
compensation arrangements with its Employees which meet the same
Internal Revenue Code requirements which govern the ICMA RC Deferred
Compensation Plan Such Trust Funds shall be subject to all of the terms
and provisions of this Agreement
ARTICLE II Powers and Duties of the Trustee in Investment,
Administration, and Disbursement of the Trust Funds
Section 2 1 Investment Powers and Duties of the Trustee The
Trustee shall have the power in its discretion 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 such
securities or in other property real or personal wherever situated as the
Trustee shall deem advisable including but not limited to stocks
common or preferred bonds retirement annuity and insurance policies
mortgages and other evidences of indebtedness or ownership and in
common trust funds of approved financial or investment institutions with
such institutions acting as Trustee of such common trust funds or
separate and different types of funds (accounts) including equity fixed
income and those which fulfill requirements of state and local govern
mental laws established with such approved financial or investment
institutions For these purposes these Trust Funds may be commingled
with others established by the Trustee under this form of agreement with
other Employers In making such investments the Trustee shall not be
subject at any time to any legal limitation governing the investment of such
funds Investment powers and investment discretion vested in the Trustee
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