HomeMy WebLinkAbout1606 Resolution-4
t •
RESOLUTION NO 1606
A RESOLUTION of the City of Pasco approving changes in the
ICMA Retirement Corporation Deferred
Compensation Plan
WHEREAS, the City of Pasco maintains a deferred compensation
plan for its employees wh]ch is administered by the ICMA Retirement
Corporation (the "Administrator"), and
WHEREAS, the Administrator has recommended changes in the plan
document to comply with recent federal legislation and Internal
Revenue Service Regulations governing said plans, and
WHEREAS, the Internal Revenue Service has issued a private
letter ruling approving said plan document as complying with Section
457 of the Internal Revenue Code, and
WHEREAS, other public employers have joined together to establish
the ICMA Retirement Trust for the purpose of representing the interests
of the participating employers with respect to the collective invest-
ment of funds held under their deferred compensation plans, and
WHEREAS, said Trust is a salutary development which further
advances the quality of administration for plans administered by
the ICMA Retirement Corporation, NOW, THEREFORE,
BE IT RESOLVED THAT THE CITY COUNCIL OF THE CITY OF PASCO
adopts the deferred compensation plan, attached hereto as Appendix A,
as an amendment and restatement of its present deferred compensation
plan administered by the ICMA Retirement Corporation, which shall
continue to act as Administrator of said plan, and
BE IT FURTHER RESOLVED that the City Manager is hereby authorized
to execute the ICMA Retirement Trust, attached hereto as Appendix B,
and
BE IT FURTHER RESOLVED that the City of Pasco hereby adopts
the trust agreement with the ICMA Retirement Corporation, as appears
at Appendix C hereto, as an amendment and restatement of its existing
trust agreement with the ICMA Retirement Corporation, and directs
the ICMA Retirement Corporation, as Trustee, to invest all funds
held under the deferred compensation plan through the ICMA Retirement
Trust as soon as is practicable, and
BE IT FURTHER RESOLVED that the Director of Finance and Administra-
tive Services 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
A Snider, Mayor
ells, City Clerk
PASSED by the City Council of the City of Pasco this
day of October, 1983
ATTEST
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..• APPENDIX A
.-./ 7 - / /),/ / 11 5 c----)
("EMPLOYER")
DEFERRED COMPENSATION PLAN
I INTRODUCTION
The Employer hereby establishes the Employer s Deferred
Compensation Plan hereinafter referred to as the Plan The Plan
consists of the provisions set forth in this document
The primary purpose of this Plan is to provide retirement income
and other deferred benefits to the Employees of the Employer in
accordance with the provisions of section 457 of the Internal
Revenue Code of 1954 as amended
This Plan shall be an agreement solely between the Employer
and participating Employees
II DEFINITIONS
2 01 Account. The bookkeeping account maintained for each
Participant reflecting the cumulative amount of the
Participant s Deferred Compensation, including any income
gains losses, or increases or decreases in market value
attributable to the Employer s investment of the Participant's
Deferred Compensation and further reflecting any distribu-
tions to the Participant or the Participant s Beneficiary and
any fees or expenses charged against such Participant s
Deferred Compensation
2 02 Administrator The person or persons named to carry out
certain nondiscretionary administrative functions under the
Plan as hereinafter described The Employer may remove
any person as Administrator upon 60 days advance notice in
writing to such person in which case the Employer shall
name another person or persons to act as Administrator The
Administrator may resign upon 60 days advance notice in
writing to the Employer in which the case the Employer shall
name another person or persons to act as Administrator
2 OS Beneficiary The person or persons designated by the
Participant in his Joinder Agreement who shall receive any
benefits payable hereunder in the event of the Participant s
death
2 04 Deferred Compensation The amount of Normal Compensa-
tion otherwise payable to the Participant which the
Participant and the Employer mutually agree to defer
hereunder any amount credited to a Participant s Account by
reason of a transfer under Section 6 03 or any other amount
which the Employer agrees to credit to a Participant s
Account
205 Employee Any Individual who provides services for the
Employer whether as an employee of the Employer or as an
independent contractor and who has been designated by the
Employer as eligible to participate in the Plan
206 Includible Compensation The amount of an Employee s
compensation from the Employer for a taxable year that is
attributable to services performed for the Employer and that
is includible in the Employee s gross income for the taxable
year for federal income tax purposes such term does not
include any amount excludable from gross income under this
Plan or any other plan described in section 457(b) of the
Internal Revenue Code any amount excludable from gross
income under section 403(b) of the Internal Revenue Code,
or any other amount excludable from gross income for
federal income tax purposes Includible Compensation shall
be determined without regard to any community property
laws
2 07 Joinder Agreement An agreement entered into between an
Employee and the Employer, including any amendments or
modifications thereof Such agreement shall fix the amount
of Deferred Compensation specify a preference among the
investment alternatives designated by the Employer
designate the Employee's Beneficiary or Beneficiaries, and
incorporate the terms, conditions and provisions of the Plan
by reference
208 Normal Compensation The amount of compensation which
would be payable to a Participant by the Employer for a
taxable year if no Joinder Agreement were in effect to defer
compensation under this Plan
2 09 Normal Retirement Age Age 70 unless the Participant has
elected an alternate Normal Retirement Age by written
instrument delivered to the Administrator prior to Separation
from Service A Participant s Normal Retirement Age
determines (a) the latest time when benefits may commence
under this Plan (unless the Participant continues employ-
ment after Normal Retirement Age) and (b) the period during
which a Participant may utilize the catch-up limitation of
Section 5 02 hereunder Once a Participant has to any extent
utilized the catch-up limitation of Section 5 02, his Normal
Retirement Age may not be changed
A Participant's alternate Normal Retirement Age may not
be earlier than the earliest date that the Participant will
become eligible to retire and receive unreduced retirement
benefits under the Employer's basic retirement plan covering
the Participant and may not be later than the date the
Participant attains age 70 If a Participant continues
employment after attaining age 70 not having previously
elected an alternate Normal Retirement Age the Participant's
alternate Normal Retirement Age shall not be later than the
mandatory retirement age if any established by the
Employer, or the age at which the Participant actually
separates from service lithe Employer has no mandatory
retirement age lithe Participant will not become eligible to
receive benefits under a basic retirement plan maintained by
the Employer the Participant s alternate Normal Retirement
Age may not be earlier than attainment of age 55 and may not
be later than attainment of age 70
2 10 Participant Any Employee who has joined the Plan pursuant
to the requirements of Article IV
2 11 Plan Year The calendar year
I
2 12 Retirement The first date upon which both of the following
shall have occurred with respect to a Participant Separation
from Service and attainment of Normal Retirement Age
2 13 Separation from Service Severance of the Participant s
employment with the Employer A Participant shall be
deemed to have severed his employment with the Employer
for purposes of this Plan when in accordance with the
established practices of the Employer the employment
relationship is considered to have actually terminated In the
case of a Participant who is an independent contractor of the
Employer Separation from Service shall be deemed to have
occurred when the Participant s contract under which
services are performed has completely expired and
terminated there is no foreseeable possibility that the
Employer will renew the contract or enter into a new contract
for the Participant s services and it is not anticipated that the
Participant will become an Employee of the Employer
Ill ADMINISTRATION
3 01 Duties of Employer The Employer shall have the authority to
make all discretionary decisions affecting the rights or
benefits of Participants which may be required in the
administration of this Plan
3 02 Duties of Administrator The Administrator as agent for the
Employer, shall perform nondiscretionary 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 the Employer in
accordance with the provisions of this Plan
IV PARTICIPATION IN THE PLAN
4 01 Initial Participation An Employee may become a Participant
by entering into a Joinder Agreement prior to the beginning
of the calendar month in which the Joinder Agreement is to
become effective to defer compensation 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 earned which is to be deferred
(including the reduction of such future deferrals to zero) or to
change his investment preference (subject to such restric-
tions as may result from the nature or terms of any investment
made by the Employer) Such amendment shall become
effective as of the beginning of the calendar month
commencing after the date 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
5 01 Normal Limitation Except as provided in Section 5 02 the
maximum amount of Deferred Compensation for any
Participant for any taxable year shall not exceed the lesser of
$7 500 00 or 33 1/3 percent of the Participant s Includible
Compensation for the taxable year This limitation will
ordinarily be equivalent to the lesser of $7 500 00 or 25
percent of the Participant s Normal Compensation
5 02 Catch-up Limitation For each of the last three (3) taxable
years of a Participant ending before his attainment of Normal
Retirement Age the maximum amount of Deferred
Compensation shall be the lesser of (1) $15 000 or (2) the
sum of (i) the Normal Limitation for the taxable year and (ti)
that portion of the Normal Limitation for each of the prior
taxable years of the Participant commencing after 1978
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 as the Employer) less
the amount of Deferred Compensation for each such prior
taxable year (including amounts deferred under such other
plan) For purposes of this Section 5 02 a Partieipant s
Includible Compensation for the current taxable year shall be
deemed to include any Deferred Compensation for the
taxable year in excess of the amount permitted under the
Normal Limitation, and the Participant s Includible Compen-
sation for any prior taxable year shall be deemed to exclude
any amount that could have been deferred under the Normal
Limitation for such prior taxable year
5 03 Section 403(b) Annuities For purposes of Sections 501 and
5 02 amounts contributed by the Employer on behalf of a
Participant for the purchase of an annuity contract described
in section 403(b) of the Internal Revenue Code shall be
treated as if such amounts constituted Deferred Compensa-
tion under this Plan for the taxable year in which the
contribution was made and shall thereby reduce the
maximum amount that may be deferred for such taxable year
VI INVESTMENTS AND ACCOUNT VALUES
6 01 Investment of Deferred Compensation All investments of
Participants Deferred Compensation made by the Employer,
including all property and rights purchased with such
amounts and all Income attributable thereto shall be the sole
property of the Employer and shall not be held in trust for
Participants or as collateral security for the fulfillment of the
Employer s obligations under the Plan Such property shall
be subject to the claims of general creditors of the Employer
and no Participant or Beneficiary shall have 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
6 02 Crediting of Accounts The Participant s Account shall reflect
the amount and value of the investments or other property
obtained by the Employer through the investment of the
Participant s Deferred Compensation It is anticipated that
the Employer's investments with respect to a Participant will
conform to the investment preference specified in the
Participant's Joinder Agreement but nothing herein shall be
construed to require the Employer to make any particular
investment of a Participant s Deferred Compensation Each
Participant shall receive periodic reports not less frequently
than annually showing the then-current value of his
Account
603 Acceptance of Transfers Pursuant to an appropriate written
agreement the Employer may accept and credit to a
Participant's Account amounts transferred from another
employer within the same State representing amounts held
by such other employer under an eligible State deferred
compensation plan described 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 is made shall be taken
into account in computing the catch-up limitation under
Section 5 02
04 Employer Liability In no event shall the Employer s 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 arising from
depreciation or shrinkage in the value of any investments
acquired under this Plan
VII BENEFITS
7 01 Retirement Benefits and Election on Separation from
Service Except as otherwise provided in this Article VII the
distribution of a Participant s Account shall commence
during the second calendar month after the close of the Plan
Year of the Participant s Retirement and the distribution of
such Retirement benefits shall be made in accordance with
one of the payment options described in Section 702
Notwithstanding the foregoing the Participant may irrevo-
2
. ' cably elect within 60 days following Separation from Service
to have the distribution of benefits commence on a date other
than that described in the preceding sentence which is at
least 60 days after the date such election is delivered in
writing to the Employer and forwarded to the Administrator
but not later than 60 days after the close of the Plan Year of
the Participant s Retirement
7 02 Payment Options As provided in Sections 7 01 7 05 and 7 06
a Participant may elect to have the value of his Account
distributed in accordance with one of the following payment
options provided that such option is consistent with the
limitations set forth in Section 7 03
(a) Equal monthly quarterly semi-annual or annual
payments in an amount chosen by the Participant
continuing until his Account is exhausted
(b) One lump sum payment
(c) Approximately equal monthly quarterly semi-annual
or annual payments calculated to continue for a period
certain chosen by the Participant
(d) Payments equal to payments made by the issuer of a
retirement annuity policy acquired by the Employer
(e) Any other payment option elected by the Participant
and agreed to by the Employer
A Participant's election of a payment option must be made at
least 30 days before the payment of benefits is to commence
If a Participant fails to make a timely election of a payment
option benefits shall be paid monthly under option (c) above
for a period of five years
7 03 Limitation on Options No payment option may be selected
by the Participant under Section 7 02 unless the present value
of the payments to the Participant determined as of the date
benefits commence exceeds 50 percent of the value of the
Participant s Account as of the date benefits commence
Present value determinations under this Section shall be
made by the Administrator in accordance with the expected
return multiples set forth in section 1 72-9 of the Federal
Income Tax Regulations (or any successor provision to such
regulations)
7 04 Post-retirement Death Benefits Should the Participant die
after he has begun to receive benefits under a payment
option the remaining payments if any under the payment
option shall be payable to the Participant s Beneficiary
commencing within 60 days after the Administrator receives
proof of the Participant s 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 no event shall the Employer or
Administrator be liable to the Beneficiary for the amount of
any payment made in the name of the Participant before the
Administrator receives proof of death of the Participant
Notwithstanding the foregoing payments to a Beneficiary
shall not extend over a period longer than (i) the Beneficiary s
life expectancy if the Beneficiary is the Participant s spouse
or 00 fifteen (15) years if the Beneficiary is not the
Participant's spouse If no Beneficiary is designated in the
Joinder Agreement or if the designated Beneficiary does not
survive the Participant for a period of fifteen (15) days then
the commuted value of any remaining payments under the
payment option shall be paid in a lump sum to the estate of
the Participant If the designated Beneficiary survives the
Participant for a period 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 paid in a lump sum to the estate of the Beneficiary
7 05 Pre-retirement Death Benefits Should the Participant die
before he has begun to receive the benefits provided by
Sections 7 01 or 7 06 a death benefit equal to the value of the
Participant s Account shall be payable to the Beneficiary
commencing no later than 60 days after the close of the Plan
Year in which the Participant would have attained Normal
Retirement Age Such death benefit shall be paid in a lump
sum unless the Beneficiary elects a different payment option
within 90 days of the Participant s death A Beneficiary who
may elect a payment option pursuant to the provisions of the
preceding sentence shall be treated as if he were a Participant
for purposes of determining the payment options available
under Section 7 02, provided however that the payment
option chosen by the Beneficiary must provide for payments
to the Beneficiary over a period no longer than the life
expectancy of the Beneficiary if the Beneficiary is the
Participant s spouse and must provide for payments over a
period not in excess of fifteen (15) years if the Beneficiary is
not the Participant s spouse
7 06 Disability In the event 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 reasonable time after
the impairment which constitutes the disability occurs A
Participant shall be considered disabled for purposes of this
Plan if he is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death
or be of long-continued and indefinite duration The
disability of any Participant shall be determined in
accordance with uniform principles consistently applied and
upon the basis of such medical evidence as the Employer
deems necessary and desirable
707 Unforeseeable Emergencies In the event an unforeseeable
emergency occurs a Participant may apply to the Employer
to receive that part of the value of his account that is
reasonably needed to satisfy the emergency need If such an
application is approved by the Employer the Participant shall
be paid only such amount as the Employer deems necessary
to meet the emergency need but payment shall not be made
to the extent that the financial hardship may be relieved
through cessation of deferral under the Plan insurance or
other reimbursement or liquidation of other assets to the
extent such liquidation would not itself cause severe financial
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 a dependent (as defined in
section 152(a) of the Internal Revenue Code) of the
Participant loss of the Participant s property due to casualty
or other similar and extraordinary unforeseeable circum-
stances arising as a result of events beyond the control of the
Participant The need to send a Participant s child to college
or to purchase a new home shall not be considered
unforeseeable emergencies The determination as to
whether such an unforeseeable emergency exists shall be
based on the merits of each individual case
VIII NON-ASSIGNABILITY
No Participant or Beneficiary shall have any right to commute
sell assign pledge transfer or otherwise 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 shall not affect benefits receivable under
3
any such plan or system Nothing contained in this Plan shall be
deemed to constitute an employment contract or agreement
between any Participant and the Employer or to give any
Participant the right to be retained in the employ of the Employer
Nor shall anything herein be construed to modify the terms of any
employment contract or agreement between a Participant and the
2, Employer
X AMENDMENT OR TERMINATION OF PLAN
The Employer may at any time amend this Plan provided that it
transmits such amendment in writing to the Administrator at least
30 days prior to the effective date of the amendment The consent
of the Administrator shall not be required in order for such
amendment to become effective but the Administrator shall be
under no obligation to continue acting as Administrator 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 to
the Plan by an instrument in writing transmitted to the Employer at
least 30 days before the effective date of the amendment Such
amendment shall become effective unless within such 30-day
period the Employer notifies the Administrator in writing that it
disapproves such amendment in which case such amendment
shall not become effective In the event of such disapproval the
Administrator shall be under no obligation to continue acting as
Administrator hereunder
No amendment or termination of the Plan shall divest any
Participant of any rights with respect to compensation deferred
before the date of the amendment or termination
XI APPLICABLE LAW
This Plan shall be construed under the laws of the state where
the Employer is located and is established with the intent that it
meet the requirements of an eligible State deferred compensation
plan" under section 457 of the Internal Revenue Code of 1954 as
amended The provisions of this Plan shall be interpreted wherever
possible in conformity with the requirements of that section
XII GENDER AND NUMBER
The masculine pronoun whenever used herein shall include the
feminine pronoun and the singular shall include the plural except
where the context requires otherwise
4
APPENDIX B
P•95c-4)
DECLARATION OF TRUST
of
ICMA RETIREMENT TRUST
ARTICLE I Name and Definitions
SECTION 11 Name The Name of the Trust created hereby is the
ICMA Retirement Trust
SECTION 1 2 Definitions Wherever they are used herein the
following terms shall have the following respective meanings
(a) By-Laws The By-Laws referred to in Section 4 1 hereof as
amended from time to time
(b) Deferred Compensation Plan A deferred compensation plan
established and maintained by a Public Employer for the purpose
of providing retirement income and other deferred benefits to its
employees in accordance with the provisions of section 457 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 pursuant 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 enters into a
contract with the Retirement Trust to provide advice with respect
to investment of the Trust Property
(g) Employer Trust A trust created pursuant to an agreement
between RC and a Public Employer for the purpose of investing
and administering the funds set aside by such employer in
connection with its deferred compensation agreements 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 Trustees Those Trustees elected by the
Public Employers who in accordance with the provisions of
Section 3 1(a) hereof are full-time employees of Public
Employers
(j) Public Employer A unit of state or local government or any
agency or instrumentality thereof that has adopted a Deferred
Compensation Plan and has executed this Declaration of Trust
(k) RC The International City Management Association
Retirement Corporation
(I) Retirement Trust The Trust created by this Declaration of
Trust
(m) Trust Property The amounts held in the Retirement Trust on
behalf of the Public Employers The Trust Property shall 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 Employers to serve as members of
the Board of Trustees of the Retirement Trust
ARTICLE II Creation and Purpose of the Trust, Ownership of Trust
Property
SECTION 2 1 Creation The Retirement Trust is created and
established by the execution of this Declaration of Trust by the Trustees
and the participating Public Employers
SECTION 2 2 Purpose The purpose of the Retirement Trust is to
provide for the commingled investment of funds held by the Public
Employers in connection with their Deferred Compensation Plans 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 Board of Trustees
SECTION 2 3 Ownership of Trust Property The Trustees shall have
legal title to the Trust Property The Public Employers shall be the
beneficial owners of the Trust Property
ARTICLE III Trustees
SECTION 3 1 Number and Qualification of Trustees
(a) The Board of Trustees shall consist of nine Trustees Five of
the Trustees shall be full-time employees of a Public Employer
(the Public Employee 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 who at the time of election are members
of the Board of Directors of RC (the ICMA/RC Trustees) One of
the Trustees who is a director of ICMA and one of the Trustees
who is a director of RC shall at the time of election be full-time
employees of a Public Employer
(b) No person may serve as a Trustee for more than one term in
any ten-year 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 vote 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 term of three years three Trustees shall be elected
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 as the Nominating
Committee for the Public Employee Trustees The Nominating
Committee shall choose candidates for Public Employee Trustees in
accordance with the procedures set forth in the By-Laws
SECTION 3 4 Resignation and Removal
(a) Any Trustee may resign as Trustee (without need for prior or
subsequent accounting) by an instrument in writing signed by the
Trustee and delivered to the other Trustees and such resignation
shall be effective upon such delivery or at a later date according
1
' .
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 I
(b) Each Public Employee 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 3?"5 Vacancies The term of office of a Trustee shall
terminate and a vacancy shall occur in the event of the death
resignation removal adjudicated incompetence or other incapacity to
perform the duties of the office of a Trustee In the case of a vacancy the
remaining Trustees shall appoint such person as they in their discretion
shall see fit (subject to the limitations set forth in this Section) to serve
for the unexpired portion of the term of the Trustee who has resigned or
otherwise ceased to be a Trustee The appointment shall be made by a
written instrument signed by a majority of the Trustees The person
appointed must be the same type of Trustee (i e Public Employee
Trustee or ICIVIA/RC Trustee) as the person who has ceased to be a
Trustee An appointment of a Trustee may be made in anticipation of a
vacancy to occur at a later date by reason of retirement or resignation
provided that such appointment shall not become effective prior to such
retirement or resignation Whenever a vacancy in the number of
Trustees shall occur until such vacancy is filled as provided in this
Section 3 5 the Trustees in office regardless of their number shall have
all the powers granted to the Trustees and shall discharge all the duties
imposed upon the Trustees by this Declaration A written instrument
certifying the existence of such vacancy signed by a majority of the
Trustees shall be conclusive evidence of the existence of such vacancy
SECTION 36 Trustees Serve In Representative Capacity By
executing this Declaration each Public Employer agrees that the Public
Employee Trustees elected by the Public Employers are authorized to
act as agents and representatives of the Public Employers collectively
ARTOCLE fIV Powers of Trustees
SECTION 4 1 General Powers The Trustees shall 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 of 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 Investment 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
(d) invest and reinvest the Trust Property in the Portfolios the
Guaranteed Investment Contracts and in any other investment
recommended by the Investment Adviser provided that if a
Public Employer has directed that its monies be invested in
specified Portfolios or in a Guaranteed Investment Contract the
Trustees of the Retirement Trust shall invest such monies in
accordance with such directions
(e) keep such portion of the Trust Property in cash or cash
balances as the Trustees from time to time may deem to be in the
best interest of the Retirement Trust created hereby without
liability for interest thereon
(f) accept and retain for such time as they may deem advisable
any securities or other property received or acquired by them as
Trustees hereunder whether or not such securities or other
property would normally be purchased as investments here-
under
(g) cause any securities or other property held as part of the
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 are a part of the Trust - •
Property
(h) 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
(i) vote upon any stock bonds or other securities give general
or special proxies or powers of attorney with or without power of
substitution exercise any conversion privileges subscription
rights, or other options and make any payments incidental
thereto oppose or consent to or otherwise participate in
corporate reorganizations or other changes affecting corporate
securities and delegate discretionary powers and pay any
assessments or charges in connection therewith and generally
exercise any of the powers of an owner with respect to stocks
bonds securities or other property held as part of the Trust
Property
(I) enter into contracts or arrangements for goods or services
required in connection with the operation of the Retirement
Trust, including but not limited to contracts with custodians and
contracts for the provision of administrative services
(k) borrow or raise money for the purpose of the Retirement
Trust in such amount and upon such terms and conditions as the
Trustees shall deem advisable provided that the aggregate
amount of such borrowings shall not exceed 30% of the value of
the Trust Property No person lending money to the Trustees
shall be bound to see the application of the money lent or to
inquire into its validity, expediency or propriety of any such
borrowing
(I) incur reasonable expenses as required for the operation of the
Retirement Trust and deduct such expenses from the Trust
Property,
(m) pay expenses properly allocable to the Trust Property
incurred in connection with the Deferred Compensation Plans or
the Employer Trusts and deduct such expenses from that portion
of the Trust Property beneficially owned by the Public Employer
to whom such expenses are properly allocable,
(n) pay out of the Trust Property all real and personal property
taxes income taxes and other taxes of any and all kinds which, in
the opinion of the Trustees, are properly levied or assessed
under existing or future laws upon or in respect of, the Trust
Property and allocate any such taxes to the appropriate accounts,
(o) adopt, amend and repeal the By-Laws provided that such By-
Laws are at all times consistent with the terms of this Declaration
of Trust
(p) employ persons to make available interests in the Retirement
Trust to employers eligible to maintain a deferred compensation
plan under section 457 of the Internal Revenue Code as
amended
(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 current
market rate
(s) contract for and delegate any powers granted hereunder to
such officers, agents employees auditors and attorneys as the
Trustees may select 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
(t) provide for the indemnification of the officers and Trustees of
the Retirement Trust and purchase fiduciary insurance
(u) maintain books and records, including separate accounts for
each Public Employer or Employer Trust and such additional
separate accounts as are required under and consistent with, the
Deferred Compensation Plan of each Public Employer and
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(V) do all such acts take all such proceedings and exercise all
such rights and privileges although not specifically mentioned
herein as the Trustees may deem necessary or appropriate to
administer the Trust Property and to carry out the purposes of the
Retirement Trust
SECTION 4 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 Trustees of the Employer Trusts without
ascertaining whether such payments are in compliance with the
provisions of the Deferred Compensation Plans or 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 not limited to the
signing or endorsement of any check and the signing of any
applications insurance and other contracts and the action of such
designated Trustee or Trustees shall have the same force and effect as if
taken by all the Trustees
ARTICLE V Duty of Care and Liability of Trustees
SECTION 5 1 Duty of Care In exercising the powers herembefore
granted to the Trustees the Trustees shall perform all acts within their
authority for the exclusive purpose of providing benefits for the Public
Employers and shall perform such acts with the care skill prudence
and diligence in the circumstances then prevailing that a prudent 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 aims
SECTION 5 2 Liability The Trustees shall not be liable for any
mistake of judgment or other action taken in good faith and for any
action taken or omitted in reliance in good faith upon the books of
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 Investment Adviser or any sub-
investment adviser, accountants appraisers or other experts or
consultants selected with reasonable care by the Trustees officers or
employees of the Retirement Trust The Trustees shall also not be liable
for any loss sustained by the Trust Property by reason of any investment
made in good faith and in accordance with the standard of care set forth
in Section 5 1
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 VI Annual Report to Shareholders
The Trustees shall annually submit to the Public Employers a written
report of the transactions of the Retirement Trust including financial ),
statements which shall be certified by independent public accountants
chosen by the Trustees
ARTICLE VII Duration or Amendment of Retirement Trust
SECTION 7 1 Withdrawal A Public Employer may at any time with-
draw from this Retirement Trust by delivering to the Board of Trustees a
statement to that effect The withdrawing Public Employer s beneficial
interest in the Retirement Trust shall be paid out to the Public Employer
or to the Trustee 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
casting one vote Upon termination all of the Trust Property shall be
paid out to the Public Employers or the Trustees of the Employer Trusts
as appropriate
SECTION 7 3 Amendment The Retirement Trust may be amended
by the vote of a majority of the Public Employers each casting one vote
SECTION 7 4 Procedure A resolution to terminate or amend the
Retirement Trust or to remove a Trustee shall be submitted to a vote of
the Public Employers if (a) a majority of the Trustees so direct or (b) a
petition requesting a vote signed by not less than 25% of the Public
Employers is submitted to the Trustees
ARTICLE VIII Miscellaneous
SECTION 8 1 Governing Law Except as otherwise required by state
or local law this Declaration of Trust and the Retirement Trust hereby
created shall 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 more counterparts each of
which shall be deemed an original but all of which together shall
constitute one and the same instrument
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APPENDIX C
C / T 7 0 c_ ' / ',el-5- e__?)
TRUST AGREEMENT WITH
THE ICMA RETIREMENT CORPORATION
AGREEMENT made by and between the Employer named in the
attached resolution 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 plans established under section 457 of the
Internal Revenue Code of 1954 (the Code ) This Agreement shall take
effect upon acceptance by the Trustee of its appointment by the
Employer to serve as Trustee in accordance herewith as set forth in the
attached resolution
WHEREAS the Employer has established a deferred compensation plan
under section 457 of the Code (the Plan )
WHEREAS in order that there will be sufficient funds available to
discharge the Employer s contractual obligations under the Plan the
Employer desires to set aside periodically amounts equal to the amount
of compensation deferred
WHEREAS the funds set aside, together with any and all assets derived
from the investment thereof are to be exclusively within the dominion
control and ownership of the Employer and subject to the Employer s
absolute right of withdrawal, no employees having any 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 1 1 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 the Plan to the extent that such amounts are to be invested
under the Trust
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 under plans
described in section 457 of the Code 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 to invest and reinvest the principal and
income of the Trust Funds and keep the Trust Funds Invested without
distinction between principal and income in securities or in other
property real or personal wherever situated including but not limited
to stocks common or preferred bonds retirement annuity and
insurance policies mortgages and other evidences of indebtedness or
ownership investment companies common or group trust funds or
separate and different types of funds (including equity fixed income)
which fulfill requirements of state and local governmental laws
provided, however that the Employer may direct investment by the
Trustee among available investment alternatives in such proportions as
the Employer authorizes in connection with its deferred compensation
agreements with its employees For these purposes these Trust Funds
may be commingled with Trust Funds set aside by other Employers
pursuant to the terms of the ICIVIA 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 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
affecting 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 investment 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
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(t) 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
(j) To do all such acts take all such proceedings and exercise all
such rights and privileges although not specifically mentioned
herein as the Trustee may deem necessary to administer the
Trust Funds and to carry out the purposes of this Trust
Section 2 3 Distributions from the Trust Funds The Employer
hereby appoints the Trustee as its agent for the purpose of making
distributions from the Trust Funds In this regard the terms and
conditions set forth in the Plan are to guide and control the 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
uniformly 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 reasons 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
ARTICLE IV Taxes, Expenses and Compensation of Trustee
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
investment advisory and other necessary fees
ARTICLE V Settlement of Accounts The Trustee shall keep accurate
and detailed accounts of all investments receipts, disbursements and
other transactions hereunder
Within ninety (90) days after the close of each fiscal year, the Trustee
shall render in duplicate to the Employer an account of its acts and
transactions as Trustee hereunder If any part of the Trust Fund shall be
invested through the medium of any common collective or commingled
Trust Funds, the last annual report of such Trust Funds shall be
submitted with and Incorporated in the account
If within ninety (90) days after the mailing of the account or any
amended account the Employer has not filed with the Trustee notice of
any objection to any act or transaction of the Trustee the account or
amended account shall become an account stated If any objection has
been filed and if the Employer is 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
time by filing with the Employer its written resignation Such resignation
shall take effect sixty (60) days from the date of such filing and upon
appointment of a successor pursuant to Section 6 3 whichever shall
first occur
Section 6 2 Removal of Trustee The Employer may remove the
Trustee at any time by delivering to the Trustee a written notice of its
removal and an appointment of a successor pursuant to Section 6 3
Such removal shall not take effect prior to sixty (60) days from such
delivery unless the Trustee agrees to an earlier effective date
Section 6 3 Appointment of Successor Trustee The appointment of
a successor to the Trustee shall take effect upon the delivery to the
Trustee of (a) an instrument in writing executed by the Employer
appointing such 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 with sixty (60) days after the Trustee
gives notice of its resignation pursuant to Section 6 1 the Trustee may
apply to any court of competent jurisdiction for appointment of a
successor
Section 6 4 Transfer of Funds to Successor Upon the resignation or
removal of the Trustee and appointment of a successor and after the
final account of the Trustee has been properly settled the Trustee shall
transfer and deliver any of the Trust Funds involved to such successor
ARTICLE VII Duration and Revocation of Trust Agreement
Section 7 1 Duration and Revocation This Trust shall continue for
such time as may be necessary to accomplish the purpose for which it
was created but may be terminated or revoked at any time by the
Employer as it relates to any 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 the Trust
all of the assets thereof shall return to and revert to the Employer
Termination of this Trust shall not however relieve the Employer of the
Employer s continuing obligation to pay deferred compensation to
Employees in accordance with the terms of the Plan
Section 7 2 Amendment The Employer shall have the right to amend
this Agreement in whole and in part but only with the Trustee s written
consent Any such amendment shall become effective upon (a) delivery
to the Trustee of a written instrument of amendment and (b) the
endorsement by the Trustee on such instrument of its consent thereto
ARTICLE VIII Miscellaneous
Section 8 1 Laws of the District of Columbia to Govern This
Agreement and the Trust hereby created shall be construed and
regulated by the laws of the District of Columbia
Section 8 2 Successor Employers The Employer shall include any
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 all of Trust Funds created by this
Agreement
Section 84 Gender and Number The masculine includes the
feminine and the singular includes the plural unless the context requires
another meaning
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