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HomeMy WebLinkAbout88-003ssn r ' BOARb OF~ SUPERUfSORS ' ' . -, CC?IJNTY OF BUTTE, ,STATE OF. CALIFORNIA.:. Resolution No. 88.3 RESOLUTION TO ESTABLISH A DEFERRED COMPENSATION PLAN WITH ICMA RETIREMENT CORPORATION RESOLUTION of the COUNTY OF BUTTE ("Employer"}. WHEREAS, the Employer has employees rendering valuable services; and WHEREAS, the establishment of a deferred compensation plan for such employees will serve the interests of the Employer by enabling it to provide reasonable retirement security for its employees, by providing increased flexibility in its personnel management system, and by assisting in the attraction and retention of competent personnel; and WHEREAS, the Employer has determined that the establishment of a deferred compensation plan to be administered by the ICMA Retirement Corporation will serve the above objectives, and WHEREAS, the Employer desires that the investment of funds held under its deferred compensation plan be administered by the ICh1A Retirement Corporation, as Trustee, with the understanding that such funds will be held by the ICMA Retirement Trust, a trust established by public employers for the purpose of representing the interests of such employers with respect to the collective investment of funds held under their deferred compensation plans: NOW, THEREFORE BE IT RESOLVED, that the Employer adopts the deferred compensation plan, attached hereto as Appendix A, and appoints the ICMA Retirement Corporation to serve as Administrator thereunder; and BE IT FURTHER RESOLVED that the Employer hereby executes the ICP•1A Retirement Trust, attached hereto as Appendix B; and BE IT FURTHER RESOLVED that the Employer hereby adopts the trust agreement, attached hereto as Appendix C, and appoints the ICMA Retirement Corporation as Trustee thereunder, and directs the ICP1A Retirement Corporation, as Trustee, to invest all funds held under the deferred compensation plan through the ICh1A Retirement Trust as soon as is practicable; and BE IT FURTHER RESOLVED that the Personnel Director shall be the coordinator for this program and shall receive necessary reports, notices, etc. from the ICP1A Retirement Corporation as Administrator, and shall cast, on behalf of the Employer, any required votes under the program. Administrative duties to carry out the plan may be assigned to the appropriate departments. PASSED AND ADOPTED by the Butte County Board of Supervisors this 5th day of January, 1988, by the following vote: AYES: Supervisors Dolan, Fulton, McLaughlin, Vercruse, and Chairman McInturf NOES: None ABSENT: None NOT VOTING: None ATTEST: MARTIN J. NICIiOLS, Chief Administrative Officer and Clerk of the Board of B~per~or~~ " Deputy HASKEL A. P1cINTURF, Chairma of the Board of Supervisors •- 2- APPENDIX A {"EMPLOYER' DEFERRED COMPENSATION PLAN umc~ ~. INnaa>aacnalH The Emploiyer hereby establishes the Emptayer's Deterred Compensation Plan, hereinafler referred to 8s the 'Plan' The Plan consists d the provisions set firth in this document. The primary purpose d this Plan is to provide retirement income and other deterred beris45ts to the Employees of the Employer in accordance with the pro- visions d section 457 of the internal Revenue Code of 1954, a5 amended. This Plan shad be an agreement sdely between file Employer and partiapat- irrg Employees. AR7ICLS Et. DEFlNtT10NS Section 2.01 Account: The bookkeeping account maintained for each Par- ticipant reflecting the cumulative amount of the Participands Deterred Can- perisatian, including any iricorrie; gains, Iosges, or increases or decreases in market value attributable to the #:mployer's irivestrnent d the Participants Deferred Compensation, and further reliscting any distributions th the I'articiparrt ar the Participant's Benefitxary and ary fees or expenses charged against sut:h Participant's Deferred Compensation Section 2.02 Administrator. The person or persons named to carry out cer- tain rrdldscr~ationary administrative functions under the Plan, as hereinafter • described. The Employer may remove any person es Administrator upon fi0 days' advance notice in writing to such person, in which case the Employer shall nerrte snottier person or petsor-s to act as Admirstrator. The Adminis- trator may resign upon 6D days' advance notice in writing to the Employer, in which rxae the Employer shall name another person or persons to act as Administrator. Secthm 2.03 i3aneticiary: The person or persons designated try the Per- ticiparit inhis Joinder Agreemerstwho shall receive any benefits payable here under in the event of the Participant's death. Section 2.04 Deferred Compensation: The amount of Normal Compensa- tion c>fhenrvise payable to the Paficipant which the Participant acid tf ie Employer mutually agree to defer hereunder, any amount credited to a Participant's Axptrnt by reason of a transfer under Section fit73, or any other amount which the Employer agrees to credit to a Participant's Accourrt. Section Z.05 Em~ioyee: Ary individual who provides services fa the Employer, whether as an emptoysa ofthe Employer a as anindependent con- tractor, and who has been designated by the iwmployar ae eligible to partici- pate in the Plan. Sectiart 2.061ndudlble Campertsation: The amount d an Employee§ canr pensation irons ttre Employer far a taxable year that is 8ttrfbutable to services perfonried fp the f?mpfoyar and that is indu~l:le in the Employee's gross income iar the taxatrie year for federalrricrxrse tax purposes; such farm does notrnctude any amount excludable from grass income under this Plan or any other plan described in section 457(tr) of the fnterrrel Revenue Code, any amours 9xdud- able from grooss income under section 4l]3(b) of the Internal Revenue Code. or any other ernourt excludable from gross income for federal irtcorria tax put poses. Includible Compersation shalt be determined without regard to erry community property fawn Seotlon 2.D7 Joinder AgrsenNnt: An agreement entered into between an Employee and the Employer, including any amerxlments or modifications thereat. Such agreement shall fix the eniaura d Deferred Comperuatian, specify a preference among the investment alternatives designated by the Employer, designate the Employee's 8erieficiary or f3enefiraaries, and incorporate the terms, conditions, and provisions d the Plan by relerenca Section 2.DI3 Nonnai Compensation: The amount d compensation which would be payable to a Participant try the Employer for a taxable year if no Joinder Agreemerrt were in effect to defer compensation under this Plan. SectiBA 2.D9 Norma! Retirement Aye: Age 7t), unless the Participant has elected an a{lemate Normal Retirement Age by written instrument delivered to the Administrator prior m Separation from Service. A Participant§ Normal Retirement Age determines (a} tha.latest time when benefits may commence under this Plan (unless the Participant continues employment alter Normal Retirement Pge), and (b) the period during which a Participant may utit¢e the Catch-up [imitation d Section 5.02 hereunder. Once a Participant has to arry extent utilized the catchup limitation d Section 5.02, his Normal Retirement Ape may not be changed. A Participarris alternate IVomiail Retirement Age may net be earner than the earliest date that the Participant wiN become eligible to retire and receive unreduced retirement benefits under the Employers ttasic retiremern plan cover- ingthe Participant and may not tre Iater than the date the Participant attains age 70. It a Participant continues employment after attaining age 7t}, not hav- ing previously elected an alternate Normal Retirement Age, the Participant's aftemate Norma! i3etirement Age shall not tie toter than the mandatory rBtire- ment age, i( any, established try the Employer, ar the age at which the Par- ticipara actrauyseparates from service if the Employer has no mandatory ratire~ ment spa tf the Particpant wig not become eligible to receive benefits under a basic retirement plan maintained b7/ the Employer, the Participant§ aRernats Normal Retremer Age may not tre earlier then attainment d age 55 and may riot tre later than the attainment d age 7Q Section 2.10 iPattlciparrt: Ary Employee wfio has joined the Plan pursuarn to the rec{uiremerrts of Article fV. Section 2.11 Plan lllitsr. The calendar year. Section 2.12 Rstlremertt: The first date upon which both d the fiiiowing shall have occurred with respect to a Participant: Separation from Service and attainment d age 65. Section 2.13 Separation tt'grn Sel'Ylq: Severance d the Participant's employment with the Employer which constitutes a 'Separation cram service" within the meaning of section 402 (e) 4 (A) (iii} of the Internet Revenue Cade to general, a Participant shah be deemed to have severed his employment with the Employer for purposes of this Plan when. in accordance Wirth the estal} lisped practices of the Employer, the employment relationship is considered to have actually terminated. In the rase d a Participant who is an indepen- dent contractor d the Employer, Separation from Service shall tre deemed ffl have occurred when the Participar's contract under which services a-e psr- iorrned has completely expired and terminated, there is na foreseeable pos- sitrility that the Employer wilt renew the contract or eater into a new contract fir the Participants services, and it is net anticipated that the Participant will become an Emp[vyee d the Employer. ~AF[yICLE III. At~ih1INISTRATION Section 3.01 Duties of Employer. The Employer shall halve the authority sp mel® et discretionary decisions affecting the rights ar barwfits d Participatsts which may i5e required in the admirastration d this Plan. Section 3.02 Duals of Administtratot: The Administratoti as agent for the EmplvyeS shall perform nondiscretionary administrative fundiorss in conrtec- tion with the Plan, including the maintenance d Parficpants' Accounts, ttte provision d periodic reports on the statue d each Account andthedisburse- ment d 4enefts on behalf d the Employer in accordance with the prohsions at this Plan. ARTICLE N PARTICIPATION IN THE PLAN Seetlon x.01 initial Psrtidpatlon: An Employee may became a PartiCipard by entering irtp a Joinder Agreement prior fio tlse beginning d the calendar month in which the Joinder Agreement is t4 become affective Uo defer Com- per>safion not yet earned. Section 4.02 Amendment of Jolndet• Agreement: A Participant may amend an executed Joinder Agreement to change fire amourx d compensa- rion not yet earned which is to be deterred (including the reduction d such future deferreis to aero) or to ctharige his irruestmer~ preference (subjecx to such rescriCtions as may result from the nature or terms d any irtv+estlment made by the Employer}. Such amendment shelf become effecEive as d the begin- ning dthe calendar month Commencing after the date the amendment is executed. A Particpant may at any Ems amend his Joinder Agreement to change the designated Beneficiary, and such emendrnerrt shell iaecome eifec- 6ve immsdatedy. ARTCCES: V. L1~IIITAT1ON5 OF pEFERRAL$ Section 3.01 Normal Limfhtlon: Except as provided fn Section 5.02. the maximum amount of Deferred Compensation for any Participant far any taxa- tbie year shall not exceed the lesser of 5/a00~0 or 33'h percent d the Par- ticiparrts lrrdudible Compensation frar the taxable yeas: This limitation will ordinar- ily tae equivalent to the lesser d S'T,500.00 or 25 percent d the Participars Norrnaf Compensation: Section 5.02 Gtds~iJp Llmitadon: For each d the fast three (3) taxable years d a Participant ending before his attainment d Normal Retirement Age, the maximum amount d Defamed Compensation steal! be the lesser d: (1} St5A00 or (2}the sum d (} the Normal Limitation for the taxable year; and (i} that portion d the Nomraf iimilation for each d ttte P~ taxable years d the Partiapant commenting after 1878 during which the PEan vvas in existenC4 comPer-sation C~ ~Y) ~ under the plan was subject to the limitations set fortl't in section 5.Dt, and the Participard was eligible m participate in the Plan (or in any ether plan established under section 457 d the internal Reve~ rove Code by an employer within the same Slate as the Employer) in esacess d the amount d Deferred Compensation for each such prior taxable year (nciudng amourls deferred under such other plan). For purposes dthis5ectian 5.02, a Partiapan[s lndudibfe Compensation far the current taxable year shall be deemed b include cry Deferred Compensation for the taxable year in ext~ss d the amount permitted under the Nommal Limitation, artd the Participants htclu~t:ls Comperuatian for cry prior taxable year shall be deemed m exclude any amount that Could have been deferred under the Nomtat Limitation far such prior taxable year. Section 5.43 Ssetlan 403(b) Annuitita: Far purposes d Sections 5.01 and 5:02.. amourts cortributsd byv the Employer an b~tatf d a Participant for the purchase d en annuity Contract described in section 403(b} d the Irrterrtai ReverKre Cade shalt be treated ss if such amourtts constituted Deferred Gom• pertsation under this Plan for, the taxable year in which the CorRrilautian was oracle and shall thereby reduce the maximum amount that may be deferred for such t~bls yeas[ ARTICLE VI. INVESTfiAENTS AND ACCOUNT VAWES Sertton 0.01 lntrsatment of IAetened Comperrastlon: All irnrestmarts d Particpan~ Deferred Compensation made by the Employer, including aN Prop arty and rights purchased wiCt such amourns and ad income atGibulable thereto shall be the sofa property d the Employer and shelf Trot tie held In tntttt for ParbciparAS or as cdlaterai security for the fulfillment d the Employers obliga- tiar-sunderthe Plan. Such Property ehafi be subject to the claims d general eredimrs of the Employer, and no Paetiapard or BenaNdary shah 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. Sstotion t3.02 Crediting of Accounts: The Participantffi Account shall reflect the amount and value d the irtvestrrterrts or other Property obtained by the Employer through the inrestrnent d the Participant's Deferred Compensation. h is anticipated that the Employers investmerts with respect to a Participant w~l cortlorrn to the investment preference Specified in the Participantvs Joinder Agreement, but nothing herein shall be construed to require the Employer to mare arty partiwlar irnrestrnerrt d 8 Par6cparu~s Deterred Compensation. Each Par6cpart shall receive periodic report,, ra lass frequer>7Ey than annually, sha+v ir,g the tlten•currert value d his A,ocount. Section 6.03 1Faneters: A transfer will be accepted from an eligible State deferred compensation plan maintained by another employer and credited to a Participant's Account under this Plan. The Employer may require such documentation from the predecessor plan a5 it deems necessary to effecfu- ate the trenster, to confirm that Such plan is an eligible state deferred Com- pensation plan within the meaning of section 457 d the lrternal Revenue Code, and to assure that trensfers ere provided for under such plan. Any such trans- ferred amount shall not be treated as a deferral subject to the limitations of Arlice V, except that, for purposes d applying the limitations of Section 5.01 and 5.02, an amount deferred during any taxable year under the plan from which the transfer is accepted shad be treated as if it had been deterred under this Plan during such taxable year and compensation paid try the transferor employer stroll be treated as if it had been paid by the Employer. Section 6.04 Esnpiayer Liability: In na event shall the Errrploysrty liability to pay benefits to a Participant under Article VI exceed the value d the amounts Credited to the Participan's Accaurt: the Employer shall not be liable for losses arising from deprecation O< shrinkage in the value d any inue5lmerAS acquired under this Plan. ARTICLE VII. BENEFTIB Section 7.01 Retirement 9ene(Ita and E1ectlan on Separation bons SerYits: Except as otherwise provided in this Article VII, the distribution of a Participants Account shall Commence during the second calendar morrtl~ after the close of the Plan Year d the Participant`s Retirement, and the distri• bution d such Retirement benefits shall be made in accordance with one of the payment options described in Section 7.02. Notwithstanding the faregp~ ing, the Participant may irrevocably elect within tit} days following separation from Service to have the distribution of benefits commence an 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 ttte Administrator but net later than 60 days after the close d the Plan Near d rtes Participants attainment d Normal Retirement Age ar Separation from Service whichever is late Section 7.02 Payment Options: As provided in Sacctions 7.07 and 7.05, a Participant may elect to have the value of his Account distributed in aCCOr- dartce with one d the following payment options, provided that such option is Carsistsnt with the limitations set forth in Section 7.03: (a) Equal mordhly, quarterly, sernf•annua! or annual paymerds in an amount chosen by the Partiupant, continuing until his Account is exhausted; (b} One lump sum paymer~ (c) A,pproximataly equal rnorrihty, quarterly, semi-arNx~al ar anrrt.~al PaYmerns. caEculated to continue for a period chosen b'y the Participant: (d} Payments equal to paymerts made by the issuer of a retiramert annuity policy acquired by the Employer, (e) Any other payment option elected fay the Perticcipant and agreed to by the Employer. A Participants election d a payment option must be made at least 30 days laelore the payment d berx3fts is id cornrnerxax Ef a Participant fails to make a timely election d e payment option, benefits shall qe paid monthly under option (c} above for a period d five years Section 7A8 Limltatlon on Options: No payment optlan may be selected b7l the Partcpant under Section 7.02 ur>}ess the present value d the payme,~ts to the Partiapant, determined as d the date benefits commence, exceeds 543 perCar>t d ttte value d the Partxapant's Account 8S d the date benefitr: commence. Present value determinations under this Section shall be made by the Admirstrator in atxor~dance with the expected Tatum multiples set fortl? in aeetion 1.72-fi d the federal income Tax Regukatiores (ar any tw~saor pro- vision to such regulations). Sactlon 7.04 Pbat-rtstFnsrnent Death Banetlts: Should the Partiapar~ die after he has begun to reC.eive benefits urxler a payment option, the remaiNng payn-eNs, if arry, under the payment option shall tae payable to the Partid- pent§ Beneficiary commencing within the 3t}day period commer~cinq with the 31st day after the Partcipant's death, uNess the Beneficiary elects pay rnertt under a different payment option within 30 days d the Iartcipant§ death. fn no event shall the Employer or Administrator be liable ro the Beneficiary for the amount d any payment made in t11e name d the Participant' before the Administrator receives Proof d death d the Participant. Notwithstanding the foregoing, payments to a Beneficiary shall not extend aver a period longer than (} the Beneficiarys life expectancy if the Beneficiary is the Partidpant's spouse or {) fifteen (15} years if the Beneficiary is not the Participants spouse. ft no Beneficiary is designated in the Joinder Agreement, or tt the designated Beneficiary does not survive the Partcparn for a period d fifteen p$} days, then the carnmuted value d any. remaining paymens under the payment option shall be paid in a lump sum to the estate of the Partidpant.lf the designated 8ene6oiary survives the Participant for a period d fifteen (15) days, but aloes not continue th five for the remaiNng period of payments under the payment option (as modfied, i( necessary. in corrforrnity with the third sentence d this section}. then the commuted value d any remaining payments under the pay- meat option shelf be paid in a lump sum ac the estate d the Benefrciary. Sactlon 7.123 Pt+e-retirement Death Benefit: Should the ParticiparR die before he has begun to receive the benefits provided by Season 7D1, the value of the Partidperit's Account shall be payable to the Beneficiary Commencing within the 30diay period commencing on the 91st day after the Participant's death. unless the Beneficiary elects a different benefit commencement date within ttie 90 days d the Participant§ death. Such benefits shall be paid in approximately aqua! annue! irtstallmen(s aver five years, or over such shorter period as may be necessary to assure that the amount d any annual install- ment is not less than $3,5()0, unless the Beneficary elects a different payment option within 90 days d the Par'tidpent§ death. Notwithstanding the forego- ing, benefits paid to a Beneficiary under this Section may commence rio earlier than the 91st day after the l'aAidpant's death and na later than 60 days after the later d the dose d the Plan Year in which the'Participant attained or would have attained Normal Retirement Age or the dose d the Plan Year in which the Participant separated from service A Beneficiary who may elect a pay merit option pursuant to the provisions d the preceding sentence shall ba treated as if he were a Partidpant for purposes d determiNng the payment options available under Section 7A2; provided, howe++eG that the paymerrt option chosen by the Beneficiary must provide for payments to the Beneficiary aver a period no longer than the Life expedaricy of the Beneficiary it the Benefid• ary is the Participant's spouse and must provide for paymerts over a period rqt in ext~ss d fifteen (i5) years if the Beneficiary is rxrt the Participants spouse Section 7.06 Llnbreaeee6la EmerOendes: In the everd an ur>toreseeabfe emergency occurs. a Participant may apply to the Employer to receive that part d the value d his accourn that is reasonably needed to satisfy the emer- gencyneed. lisuch an application is approved by the Employes; the Participant shall be paid only such amount as the Employer deems necessary fn meet the emergency need, but payment shall net be made to the extent that the financial hardship may be relieved through cessation d defers! underthe Plan, insurance ar other reimbursement, or liquidation d other assets to the extent such liquidation would not itself cause severe financial hardship. An urdoresea- able emergency shall be deemed th involve only cfr~cumstances of severe financial hardship W the Partcpant resulting from a sudden and unexpected illness, ecaderrt or disability a! the Participant or d a dependern (as defined in section 152(a) d the Internal Revenue Code) of the Participant, loss d the Par- tidpantlaproperty due to casualty, or other similar and extreerdinary unforesee- able citcumsmnces arisirsg as a result d e+rerns Beyond the contrd of the Per- ticipant. The need to send a Participant's child to cd~ege or to purchase a new home shalt nrn be considered uMoreseeable emergencies. The determination as to whether such an unbreseeable emergency exists shall be based an the meths d each individual case. AFTF'iCLE Vlll. NON-ASSIGNABlLIT7 No Participant or Beneficiary shall have any right to commute, sell, assign, pledge, transfer or otherwise Convey Or encumber the right t0 receive any pay- merdshereunder, which paymerrts and rights are expressly declared to be non• assignable and non•Uansferable ARTICLE iX. RELATIONSHIP TO OTHER PLANS AND EMPLOYMENT AGREEMENTS This Plan serves in addition to any other retirement, pension, or benefit plan or system presently in existence or hereinafter established for the benefd d the 1 mplayer'; employees, and partidpation hereunder shall nil affect benefits rec~iv- able under any such plan or system. Nothing contained in this Ptan shall be deemed to constitute an employment contract or agreement between any Par• tfcipant and the Employer or to give any Partcpant the right to be retained in the employ d the Employer. Nor shall anything herein be construed to modify the terms d any employment contractor agreement between a Participant and the Employes ARTICLE X. Ai41ENDMENT OR T1E~'iMINATION OF PLAN The Emplaysr 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 rn the amendment. The consent d the Administrator shall not be required in order for such amendment tp become affective, but the Administrator shall be under no abiigation to continue acting as Administrator hereunder if it disap proves d such amendment. The Employer may at any time terminate this Plan. The Administrator may at ar~y 6me propose an amendment to the Plan by an instrument in writing transmitted to the Employer at least 30 days before the effec- tive date of the amendment. Such amendment shalt become effective unle~, within such 30-day period, the Employer notifies the Administrator in writing that d disapproves such anrerxtmerrt. in which ~ such amendment shaft net became effective. In the event d such disapproval, the Administrator shalt be under no obligation to continua acting as Administrator hereunder No amendment or termination of the Plan shall divest any Participant d any rights with respect to compensation deterred before the dale d the amendment or termination. ARTICLE ICI. APPLICABLE LAW This Plan shall tae construed under the laws d the state where the Employer is located and is established with the intent that it meet the requirements d an 'eligifa[e State deferred compenuation plan" under section 457 d the IMemal Raw antic Code of 1954, as amended. The provisions of this PEan shall be interpreted wherever passible in coMormiry with the requiremerrts d that sactian. AFiFiCLE X1f. GENDER AND #ftIMBF:Ft The rriascuiine pronoun, whenever used herein, shall include the feminine pro- noun, and the singular shat! include the plural, except where the context requires otherwise. v (b) At the first election ~ Trustees, three Trustees shall be elected for a term of three years, three Trustees shalt be elected far a term of two years and three Trustees shalt be elected for a term of one year. At each subsequent election, three Trustees shall be elected for a term ae three years and until his qr 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 Tn~stees The Nominating Committee shall choose carrd'sdates for Public Employee Trustees in .accordance with the procedures set forth in the Bylaws Section 3.+t Resignation and Removal. (a} Any Trustee may resign as Trustee (without need for prior or subsequent accounting} by an instrument in wripng signed by the Trustee and delivered to the other Trustees and such resignation shall be etfec6ve upon such delivery, or at a later date according to the terms of the instrument..Any of the Trustees may be removed for cause, by a vote of a majority of the Public Employers. (b} Each Public Employee Trustee shall resign his or her position as Trustee within sixty days of the date on whidt he or she ceases to be a full-lima employee of a Public €mployer. Section 3.5 Vacancies: The term of office of a~Trustee shall terminate and a vacancy shall occur in the avant of the death. resignation, removal, adjudi- sated incampetencs 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 personas they in their discretion shall see frt (subject to the limitations sat forth in this Section}, t4 serve for the unexpired portion of the term a( 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 per- son appointed must be the soma type of Trustee (.e., Public Employee Trus- tee ar ICiNA1RC 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 az a later date b7r reason of reoremeru or resignation, provided maz such appoint- ment shall not become effective prior ~ such retiremerst or resignation. When• ever a vacancy in the number of Trustees shall occur, until such vacancy is filled as provided in this Section 3S, the Trustees in offrce, regardless of their number, shall have all the powers granted to the Trustees and shall discharge all the duties imposed upon the Trustees lay this DeGaration. A written instru- ment certifying the existence of such vacancy signed by a majority of me Trustees shall be conclusive evidence of the existence of such vacancy. Sectfan 3.6 Ttveteea Serve In Reprs3sentative Capacity: By executing this fJedaration, each Public Employer agrees that the Public Employee Tn,stees elected by the Public Employers are authorized to act as agents and represen- tatives of the Public Employers collectively. ARTICLE lV. POWEI<tS OF TRUSTEES Seaton 4.1 General Powers: The Trustees shall have the power to conduct the bus+rsess of the Tn~st and to carry on its operations. Such power shall include, but shall not be limited lo, the power to: (af receive the Trust Property from the Public Employers, Public Employer Trustees or other Trustee of any Employer Truss; (b} enter into a contract with an Irvestment Adviser providing, among other things, for the establishment and operation of the Portfolios, selection of the Guaranteed frwestiment Contracts in which the Trust Properly may be invested, selection of other investnsersts for the Tnut Property and the payment of reasona- blefees to the Investment Adviser and to any sub•inveslment 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) irtuest and reirn,+est the Trust Property in the Portldios, the Guaraneed interest Contracts asst in any other inwestmerrt recommersded t>,r the Investment Adviser, but not including securities issued try Public Employers, provided that if a Public Employer has directed that its monies be invested in specified PoRfolios 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 lima to time, may deem to tae in the best interest of the Retire- ment Trust created hereby, without liability for interest thereon; {~ accept and retain for such time as they may deem advisable any securi• lies or other property received or acquired by them as Trustees hereunder, whether or not such securities or other property would normally tae purchased as investments hereunder; {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 nomi- nee, and to hold any investments in bearer farm, but the books and records a< the Trustees shall et all times show that all such investments are a paR of the Trust Properly; (h} make execute, acknowledge, and deliver arty and all documents of trans- fer and conveyance and any and a!i other instruments that may be necessary or appropriate to carry out the powers herein granted; [}vote upon any stock, bonds, or other securities: give general or special proxies ar powers of attomsy with or without power of substitution; exercise any con- version privileges, subscription rights, or other options, and make any pay- ments incidental thereto; oppose, or consent tq ar otherwise participate in, corporate reorganizations ar atherchanges effecting corporate securities, and delegate discretionary powers, and pay any assessments or charges in con• section therewith: and generally exercise any of the powers of an owner with respect to stocie, bonds, securities or other property held as part of the Trust Property; (~ enter into contracts or arrangements for goods or services required in con- nection with the operation of the Retirement Trust, including, but not [invited to, contracts with custodians and contracts for the provision of administrative services; (ky borrow or raise money for the purposes of the Retirement Trust in such amount, and upon such tames and condibor-s, as the Trustees shaA deem advis- able, provided that the aggregate amount ~ such borrowings shall not exceed 30°x6 of the value of the Trust Property. Na person lending money m the Tnistees shall be bound to see the application of the money lent or to inquire into its validity, expediency or propriety of any such borrowing; (1~ incur reasonable expenses as required far 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 s~nses- lion with the Deferred Compensation Plans, Qualified Plans, ar the Employer Trusts and deduct suCM expenses from that portion of the Trust Property to whom such expenses are properly allocable: (n) pay out of the Trust Property elk real and personal property taxes, income taxes and other taxes of any and ail kinds which, in the opinion of the Trustees, are properly levied, or assessed under existing or tutirre Iaws upon, or in respell of, the Trust Property and allocate any such taxes to tfre appropriate accounts: (o) adopt, amend and repeal the $y-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 Pian under Section 457 or a Qualified Plan under Section 401 of the Internal Revenue Code, as amended; . (q}issue the Annual Report of the Retirement Trust, and the disclosure docu- ments 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 rata; (s) contract tor, and delegate any powers granted hereunder to, such officers, agents employees, auditors and attorneys as the Tnistees 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 it such delega tian would violate their fiduciary duties; {t) provide for the indemrafication of the officers and Trustees of the Retirement Trust and purchase fiduciary insurance: (u} maintain books and records, including separate accourrcs for each Public Employer, Public Employer Trustee or Employer Trust and such additional sep• orate accourMs as are required under, and consistent with, the Deferred Com• ppnration or Qualified Plan of each Public Employer, and (v} do all such acts. take alE suds 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 at the Retirement Trust. Section 4.2 i)IstMbution of Tri test Ptnperty: Distributions of the Trust Prop- erty shalt be made lo. or on behalf o(, ttte Public Employer or Public Employer Trustee, in accordance with the terms d the Deterred Compensation Plans, Qualifred Plans or Employer Trusts. The Trustees d the Retirement Trust shall be fully prptected in making payments in accordance with the directions of the Public Empoyers, Public Employer Trustees or other Trustee of the Employer Trusts without ascertaining whether such paymertls are in compliance with the previsions d the Referred Compensation pr t~ualified Plans, or the agreements creating the Employer Trusts. Section 4.3 ~cecutlon of Instrunnents: The Trustees may unanimously designate any one or more of the Trustees to execute any instrument or docu- ment an behalf d all, including but not limited to the signing or endorsement of any check and the signing of any applications, insurance and ether con- tracts, and the action d such designated Trustee ar Trustees shall have the same farce and effect as 'rf taken by all the Trustees. ARTICLE V. DIJ'I Y OF CARL= AND LIABILITY OF TRUSTEES Seetian 5.1 Duty of Caro: In exercising the powers hereinbefore granted to the Trustees, the Trustees shall perform all acts within their authority for the exclusive purpose d providing benefits for the Public Employers in connec- tion with Deferred Compensation Plans and Public Employer Trustees pursuant to t]ualified $ians, and shall perform such acts with the care, skill, prudence and diligence in the circumstances then prevailing that a prudent person act- ing in alike capacity and familiar with such matters would use in the conduct of an enterprise d a like character and with like aims. Seetlon 5.2 Llsbilfly: fie Trustees shall net be liable for any mistake of judg- ment or ether action taken in good faith, and for any action taken or omitted in reliance in good faith upon the books d account or other records d the Retirement Trust, upon the opinion of counsel, or upon reports made to the Retirement Trust by any of its officers, employees or agerns or fry ttte Invest- ment Adviser ar any sub•investmern adviser, accountants, appraiser; or other expens 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 Properly by reason d any investment made in good faith and in accordance with the standard d care set forth in Section 5~i. Sectfan 5.3 Band: No Trustee shall be obligated to give arty bond or other security for the performance d any d his or her duties hereunder ARTIGLE VI. ANNUAL REPORT TO SWAREWOLDERS The Trustees shall annually submit to the Public Employers and Public Employer Tnastees a written report d the transactions d the ReGn~rrrent Trust, including finan- cial statemerns which shall be certified by independent public accountants Cho- sea by the Trustees. ARTICLE VII. DURATION OR At4AENDMENT OF RETIREMENT TRUST 5ectfan T.t Wltttdravral: A Public Employer or Public Employer Trustee may. at any time, withdraw from this Retirement Trust by delivering to the i3oard of Trustees a written statement of wiEhdrawal. In such statement, the Public Employer or Public Employer Trustee shall acknowledge that the Trust Prop- erty allocable to the Public Employer is derived from compensation deterred by employees of such Public Employer pursuant to its Deferred Compensa- tion Plan or from contributions to the accounts of Employees pursuant to a Cualfied Plan, and shall designate the financial institution to which such prvpesty shall he transferred by the Trustees of the Retirement Trus! or 6y the Trustee at the Employer Trust. Section 7.2 Duration: The Retirement Trust shall continue until terminated by the vats of a majority of the Public Employers, each casting one vote Upon termination, all of the Trust Property shag be paid out to the t>ublic Employers, Public Employer Trustees or the Trustees d the Employer Trusts, as appropriate. Section 7,3 Amendment; The Retirement Trust may ba amended by the vote of a majority ai the Public Employers, each casting one vote. Section 7.4 Ptnceduro: A resolution to terminate or amend the Retirement Trust or to remove a Trustee shat! be submitted to a vote o! the Public Employers rf: {) a majority d the Trustees so direct, ar, (ii) a petition requesting a vale, signed by not Less than 2546 d the Public Employers, is submitted to the Trustees. ARTICLE VIII. MISCELLANEOUS Section 8.f Gavertsing Law: Except as otherwise required by state or local taw, this Declaration of Trust and the Retirement Trust hereby created shall be construed and regulated by the laws o1 the District of Columbia. Section B.2 Counterparts: This Declaration may be executed by the Public Employers and Trustees in twn, ar more counterparts, each of which shalt be deemed an original but all of which together shall constitute one and the samE instrumern. APPENDIX C TRUST AGREEMENT WITH THE ICMA RETIREMENT CORPORATION AGREEIIRENT made by and ttatween the fmpioyer named in the attached reso• lotion and the Intemativnal City Management Association Retirement Corpora. Lion {riereinafter the 'Trustee or 'Retirement Corporation"}, a nonprofd corpora- tion organized and existir~ under the favvs of the Stets d Delaware, tior the purpose of investing end otherwise administering the funds sat aside by Employers in connection with deferred compensation plans established under secBon 457 d the Irrterrtel Revenue Coded 1954 {the "Code3. This Agreemenrt shall take effect Lpan acceptance by the Trustee d ile appoinlrnent by the EmpEOyer m serve a& Tn~tee in aocordanCe herewith as set forth in the attached resdution. WiiEREA'3, the Employer has established a deferred compert9aton plan under section 457 of the Code (ttte 'Plan'}; WHEREAS. in order that there wilt be suffiaent funds available to discharge the Fmpfoyer~ carrhaCtual obligations under the Plan, the Employer desires to aet aside periodically amounts equal to the amount d compensation deferred: WHEREAS, the funds set aside together with any and alt assets derived from i['te invesbnent thereof, are to ba exclusively witl•iin the dominion, control, and ownership d the Employer,. and subject to the Emplpyer's absdute right d with- drawal, no employees having any irder'est prtratsoever !herein; MOW, THEREFORE, this Agreement wftnessett, that {a}the Employer will pay monies to tits Tustee to he placed in deferred Compensation aax7urm for the Employer: (b} the Trustee covenants that it wilt hdd said sums, and arty other funds which it may receive hereunder, intrust for the uses and purposes and upon the temLS and conditions hereinafter stated; and (c) the parties hereto agree as follows: AR17Ct.EE 1. aENfRA! DtmES of THE r~ARTIEs Section 1.7 Gseeral Duty of the Employer. The Employer shall metre regu- lar periodic paymerns equal to the arnourrts d its employees' compensation which are deferred in accorderrce with the terms and conditions d the Plan to the extent that such amounts are m tae invested under the Trust. Seetiort i.2 Canard Dulles of the Ttvstse: The Tnr.;flee shad hdd all funds received by it hereunder which. together with the income therefrom, shell corn etilute the Trust funds. n shall administer the Trus< Funds, collect the income thered, arxi rooks paymerNS therefrom, alt as hereinafDer provided. The Trus- tee shad ado bald atl Trt~ Funds wfiich are trartsterred to k as sr~essor Trustee by the Employer from existing deferred compensation arranpemenls with its Employees order plans described in section 457 tithe Code. Such Trust funds chap be subject to ati d the ttxms and Provisions d this Agreement ARTICLE il. POWEAS AND DtiTitS OF THE TRUSTEE 1lH Il+NESTiYIENT, ADAIitNISTRATIDN, AND DISSUf3SEMENt OF THE TRUSt Fl1NDS. Seztlan 3.1 lnvestmerrt Frarwrs end Duals of !the lluatse: The Trus• tee shall have the power to unrest and reinvest the principal and income d the Trust Funds and keep lhe'kust Funds irn+ested, wrlhout distine6on between principal anti ircortte; in securities or in other property, real or peRSOreI, when ewer ztituatad. irrdrxiinp, txA hot prrrtited t0. scats, carntttort or preferred, bonds, retirement annuity and insurance policies. mortgages, end other evidences d indebtedness or Gnrnership, irn+estrrtent companies, common or grouptrustiunds, or separate and different types of funds [ncluding equity, fined income) which fulfill requirements of State and local governmentei laws, provided, haweuer, that the Employer may direct investment by the Trustee among available investment alternatives in such proportions a5 the Employer authorizes in connection with its deferred compensation agreements with its employees. Far these purposes, these Trust Funds may be commingled with Trust Funds set aside by other Employers Pursuart ~ ttteterrrts of file ICMA Retirement Trust. Irrvestmerrt powers vested in the Trustee by the Section may be delegated try the Trustee to any bank insurarre ortnut company, or any inuestrnert adviser manager or agent selected by it. Section 2.Z Adm[nlstsetlve Foyers of the Ttrustee: The Trustee shell have the power in its discretion: {a) To purchase, or subscribe for, any securities or other property and to retain the same intrust. {b) To sell, exchange, corn+ey; transfer or otherwise dispose of any securi- ties or other property held by it. t7y private contract, or al public auction. No person dealing with the Trustee shall be hound t0 see the application d lhs purchase money or to inquire into the validity, expediency, or propri- ety deny such sale or other disposition. (c) To vote upon any stocks, bonds, or other securities; to give general or special prooriss or powers of attorney with or without power of substitution; to exercise any conversion privileges, subscription rights, or other options, and to make any paymerrls incidental thereto; to oppose or to consent to or otherwise participate in. Corporate reorganisations or other changes a~fe~t- ing Corporate securities, and SQ delegate discretionary powers, and to pay any assessments or charges in Connection therewith; and generally to exer- ciseany tyf the powers d an owner with respect to stock, bonds, Securities or other property held as part d the Trust Funds (d} TD cause any securities or ottrer property held as pert tithe Trust Funds fA be registered in its own name, and to hdd any investments in bearerivrm, but the hooks and reconis at the Trustee ShalE et all times show that all such investnterrts are a part of the Trust Funds. {e) To barrow ar nose 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 Wnds No person lending money to the Trustee shall be bound to sea the application of the money lent or to inquire into its validity, expediency or propriety of any such txxrnwinq. (Q To keep Such portien t:d the Trust Funds in cash or Cash balances as the Trustee, fnxn time to timer may deem to be in the best interest d the Trust created hereby, without liability for interest thereon. (g} To accept and retain for such time as it may deem advisable any Saco ri- fles or aM~er property received ar acquired by it as Tustee hereunder wt'Kas`i~r or not such seourities or Other Property would normally be purchased as investment hereunder. 7 (h} To maloa execueq aCEcnowrtedge; and deliver any and ati documents d transfer and cwsveyarsce and any and all other irrstrumerrls that may be necessary or appropriate to carry out the powers herein granted. (1] To settle, compromise ar submit to arbitration any claims, debts, or damages due or owing to ar fran the Trust Funds, to commersce or defend stale or lapel ar admirustratiue proceadr>gs; and to represent the Trust Funds in akl suits and legal and administrative proceedings. n b do all such acts, take atl such proceedings, and exercise ail such rights end privileges, although rid Specifically mentioned herein, a6 the Tnr~ee may deem necessary to administer the TrusE Funds and to carry out the purposes d this Trrtst. Seetian 2.3 Dlatrlbutians from the Trust Funds: The Employer hereby appoirns the Trustee as its agent for the purpose of making distributions from the Trust Funds. In this n3gard the terms and conditions set forth in the Plan are to guide and cornrd the Trusteed power. Sectbn 2.4 ValuatFan of Tirttst Funds: At least once a year as d Valuation Dates designated by the Trustee. the Trustee shall d~ermine the value d the Trust Funds. Assets d the Trust Funds shall be valued at their market values ai the dose d business on the Valuation Date, or, in the absence d readily ascertainable market ~ralues as the Trustee stroll determine, in accordance with methods consistently followed and uniformly applied. ARTICLE 111. IFOR PROTECTION OF TRUSTEE Section 3.1 E-rklence o! Action bl- fmproysr: The Trustee may rely upon any certificate, notice or direction purporting to have been signed on behalf d the Employer wtticts the Trustee believes to have been signed by a duly designated otfictal d the Employer, !+!o cdnmunicatian shall be binding upon any d the Trust Funds ar Tustee urttit they are received by the Trustee. Sectlan 3.2 Advloe of Courosal: The Tr->stae may cor15<rlt wish any legal cour- se! with respect to the construction d this Agreement, its duties hereunder, or arty act, which ii proposes to take or omit, and shall not be liable for any aclian taken or omitted in good Faith pursuant t0 such advice Sertloe~ 3.3 Miscellaneous. The Trustee shalt use ordinary care and reasona• bie diligence, but sha[I not be liable for anymistake d judgment ar alter action taken in good faith. The Trustee shall not be liable for any lass sustained by the Trust Funds by n3esor~s d any inwestrrssnt made in good faitlt and in accor- dance with the provisions d the Agreement Ttse Trustee's duties and d]ligationS shall be limited to ttsose expressly imposed upon it by this Agreement ARTICLE N TAXES, EI(PENSES AND COMPENSATION OF TRUSTEE Section 4.1 'lirtoes: The Trustee shall deduct tram and d,arge against the Trust Funds any taxes on the Trust Funds or the income thereat or which the Trus- tee is required to pay with respect to the interest d arty person therein. Section 4.2 Expenses: The Trustee shall deduct fnxn and charge agairssi the Trust Funds all reasonable expenses incurred by the Tnrstee in the adminis- tration dtheTrust Funds, including counsel. agency, irwesttrsern advisory, and Od1er necessary tees. ARTICLE v SETTLEMENT of AtxOUNT$ The Trustee shalt keep accurate and delaiied aocourrts d alt investments, receipts, disbursements. and ether transactions hereunder. VYrlhin nirsety (90} days after flee hose d each fiscal year, the Trustee shall ren- der induplicate tothe Employer an account d its ads and transactions as Trus- tBehereunder. If any part d the Trust Fund shall be invested through the medium d any common. cdlective ar commingled Trust Funds, the Iasi annual report d such Trust Funds shat! be submitted with and incorporated in the accourt. lF WrlhlR nltiety (~} days afffir the m~ling of the accourd Dr any 3merlded account the Employer has net filed with the Trustee notice of any objection to any act nr transe<^tian d the Trustee, the acCOrrrn ar amended accarrn shall become an accourn stated. N any objection has been filed. and if the Employer is satis• fled that it should he withdravm or if the account is adjusted to the Employer satisfaction, the Employer shall in writing Glad with the Trustee signify aPP~ d the account and it shall become an account stated. when an account becomes an account stated, such account stsali be finally settled. end the Trustee shalt be completely discharged and released. as rf such accalrrt had been settled and allowed try a judgmenrt or decree d a court of competent jurisdiotion 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 d competent jurisdiction lot the judicial settfemerst d its accourn. Aiar€cLl: vr. RESIGNAnoN AND REMOVAL of TRUSTEE Section 6.9 Raalgnatlon a! liustee: The Trustee may resign at any time by filing with-the Employer itg written resignation. Such resignation shall take effect sixty (60} days tram the date d such filing and upon appointment d a successor pursuant th Section &3., whichever shag first occur. Section 6.2 Removal o! Ttustee: The Employer may remove the Trustee at any time by delivering to the Trustee a written notice d its remo+ral and an appointment d a successor pursuant to Section fi,3. Such removal shalt not take effect prior to sixty (60} days from such delivery unless the Trustee agrees to an earlier effective data Section 8.3 Appolntsnent o! Successor Thustee: The appointment d a successor to the Trustee shall take effect upon the delivery to the Trustee of (9} an instrument 9n writing executed by the >rmployer appointing such 5uc cassor, and exonerating such successor from liability for the acts and omis• signs d its predecessor, and (b} an acceptance in writing, executed by such successor. All d the provisions set forth herein with respect w the Trustee shall relate to each suaessor with the same force and effect as 'rf such suxessor had been originally names as Tn,stes hereunder. if a successor is not appointed within sixty (60) days after the Trustee gives notice d its resignation pursuant to 5ectian 6.t., the Trustee may apply to any court d competent jurisdiction for appontment d a successor. Seotlon b.4 Thrnsier o! Funds to Successor. Uporr the resignation or removal d the Trustee and appanimern d e successor, and alter the final account d the Trustee has beers properly settled, the Trustee shat! transfer and deliver arty d the Trust Funds invdved to such successor. ARTICLE VII. DURATEON AND REVOGITION OF TRUST AGREEMENS" SeCtlan 7.1 Duration and Revocation: This Trust shall continue for such time as maybe necessary to accomplish the purpose for which it was created but may be terminated ar rBVnked at any lima by the Employer as it relates th any andlor all related participating Employees Written notice d such termi- nation or revocation shall be given to the Trustee try the Employer. Upon ter- mination or revocation d the Trust, all d the assets thered shall return to and revert to the Employer. Termination d this Trust shall not, however, relieve the Employer d the Emplvyer§ continuing obligation to pay deferred compensa- tion to Employees in accordance with the terms d the Plan. Sect€an T.2 Amendment: The Employer shat! 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 d a written irsstrumern d amendment, and (b) the endorsement by the Trus- tee 01'1 SUCt1 inStrumern d iL5 Wnsent ltteretQ ARTICLE Wil. MISCELLANEOUS Sect€on R.1 t.rtrt-s o! the DlsMct of Columbia to Govern: This Agree- ment and the Trust hereby created shall be construed and regulated by the laws d the District d Columbia. Sect€on 8.2 Successor Emp€oyrts: The'Emplayer" shall include any per- son who succeeds the Employer and who thereby becomes subject to the obligations d the Employer under the Plan. Beerier 8.3 Withdtanvsis: Ths Employer may, at arty time, and tram time to time, witltdraw a portion ar alE d Trust Funds created by this Agreement. Section 3.4 Gender ar-d Number. The masculine includes the feminine anti the singular includes the plural unless the context requires another meaning.