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HomeMy WebLinkAboutResolution - 85-98 - Establish Deferred Compensation Program - ICMA - 05/07/1985 RESOLUTION NO. 85-98 A RESOLUTION ESTABLISHING A DEFERRED COMPENSATION PROGRAM FOR EMPLOYEES OF THE CITY OF EDEN PRAIRIE TO BE ADMINISTERED BY THE INTERNATIONAL CITY MANAGEMENT ASSOCIATION RETIREMENT CORPORATION WHEREAS, the City of Eden Prairie values the services rendered by its employees ; and WHEREAS, the establishment of a deferred compensation plan for these employees will serve the interests of the City as 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 City has determined that establishment of a deferred compensation plan to be administered by the ICMA Retirement Corporation will serve these objectives; and WHEREAS, the City desires that the investment of funds held under one of its deferred compensation plans be administered by the ICMA Retirement Corporation, as Trustee, with the understanding that such funds will be held by the ICMA Retirement Trust, a trust established by public employers for the purpose of representing the interest of such employers with respect to the collective investment of funds held under their deferred compensation plans: NOW THEREFORE BE IT RESOLVED that the City adopts the deferred compensation plan, attached hereto as Appendix A, and appoints the ICMA Retirement Corporation to serve as Administrator thereunder; and a BE IT FURTHER RESOLVED that the City hereby executes the ICMA Retirement Trust, attached hereto as Appendix B; and BE IT FURTHER RESOLVED that the City hereby adopts the trust agreement, attached hereto as Appendix C, and appoints the ICMA Retirement Corporation as Trustee thereunder, and directs the ICMA Retirement Corporation, as Trustee, to invest all funds held under the deferred compensation plan through the ICMA Retirement Trust as soon as is practicable; and BE IT FURTHER RESOLVED that the Finance Director 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 City, any required votes under the program. Administrative duties to carry out the plan may be assigned to the appropriate departments. Adopted by the Eden Prairie City Council May 7, 1985 . D. eter� n ,-Mayor { � ATTEST Jlan, F r a n e ,P,ity Clerk APPENDiX A ("EMPLOYER") DEFERRED COMPENSATION PLAN 1. INTRODUCTION include any amount excludable from gross income under this The Emp'oyer hcrr:t�y establishes tho Employer's Deferred Plan or zny other plan described in section 457(b) of the Compensation Plan,lik<reinafter fefi�rred to as the`Plan.''The Plan Internal Revenue Code. any amount excludable from gross consists of the provisions set forth in this document. income under section 403(b) of the Internal Revenue Code, The primary purpose of this Plan is to provide retirement income or any other amount excludable from gross income for and other deterreo nonetits to the Employees of the Employer in federal income tax purposes. Includible Compensation shall accordance v;:tr Una provisions of section 457 of the Internal be determined wi!hout regard to any community property Revenue Code of ty5•t, as amended. laws. This Plan shall be an agreement solely between the Employer 2.07 Joinder Agreement: An agreement entered into between an and participating Employees. Employee and the Emplover, including any amendments or modifications thereof. Such agreement shall fix the amount It. DEFINITIONS of Deferred Compensation, specify a ;reference among the 2.01 Acccunt: The bookkeeping account maintained for each investment alternatives designated ny the Employer, Participant reflecting the cumulative amount of the des.gnate the Employee's Beneficiary or Beneficiaries. and Participant's Deferred Compensation, including any income, incorporate the terms,conditions,and provisions of the Plan i gains, losses, cr increases or decreases in market value by reference. attributable to the Employer's investment of the Participant's 2.08 Normal Compensation: The amount of compensation which Deferred Compensation, and further reflecting any distribu- would be payable to a Participant by the Employer for a tions to the Participant or the Participant's Beneficiary and taxable year if no Joinder Agreement were in effect to defer any fees or expenses charged against such Participant's compensation under this Plan. Deferred Compensation. 2.09 Normal Retirement Age: Age 70. unless the Participant has 2.02 Administrator: The person or persons named to carry out elected an alternate Normal Retirement Age oy written certain nondiscretionary administrative functions under the instrument delivered to the Administrator prior to Separation Plan, as hare:riafter described. The Employer may remove from Service. A Participant's Normal Retirement Age any person as Administrator upon 60days advance notice in determines (a) the latest time when ben^hts may commence writing to such person, in which case the Employer shall under this Plan (unless the Participant con!inues employ- name another person or persons to act as Administrator.The ment after Normal Retirement Age).and(b)the period during Administrator may resign upon 60 days advance notice in which a Participant may utilize the catch-up limitation of writing to the Employer, i.i which the case the Employershall Section 5 02 hereunder. Once a Participant has to any extent name another person or persons to act as Administrator. utilized the catch-up iimitation of Section 5.02, his Normal Retirement Age may not be changed. 2.03 Eenefictary: The person or persons designated by the A Participant's +.alternate Normal Retirement Age may net Participant in t is Joinder Agreement who shall receive any be earlier than the earliest date that the Participant will benefits payabla hereunder in the event of the Participant's become r•ligib!e to ret,re and receive unreduced retirement death. benefits under the Employer's basic retirement plan covering 2.04 Deterred Compensation: The amount of Normal Compensa- the Participant and may riot be later than the date the lion otnerwise payable to the Participant which the Participant attains age 70. It a Participant continues Participant and the Employer mutually agree to defer employment after attaining age 70• not having previously hEreunder,any amount craclited to a Participant's Account by elected an alternate Normal Retirement Age,the Participant's reason of a transfer under Section 6.03• or any other amount alternate Normal Retirement Age shall not be later than the which the Employer agrees to credit to a Participant's mandatary retirement age if any, established by the Account. Employer, or the age at which the Participant actually 2.05 Employee: An • individual who separates from service if the Employer nas no mandatory• ` y pro fthe sari• cos for the retirement age. If the Participant will not become eligible to EmE,lo;er• v..ii�lrier as an empli�yee of Ihi! Employer or as an irkhl!;en'Jrnt cJnlraClor. and�vho has been designated bylhe receive benefits under a basic retirement plan maintained by Enip;oyr r as eugible tc participate. in the Plan. the Employer, the. Participant's alternate Normal Retirement Aye may not be earlier man attainment of age 55 and may not !,06 includiUle Compensation: Ttho amount of an En:;vcyve•s be later than attainment of age 70 canil'ens.!h�in from the rnhiciyrrr for a tat.tblr year that i; r r t,�nn,•r' for trio F rnttlu i.r ,ir•;l ihal 2.10 Participant: Any Employee who has joined the Plan pur,u ant i.lnbut,:n.r to ;rr:ii.i': f ;. _ y is includ hle in the Employ,ins rlruss incornE• for i ..e ta(able. to the rer7unem:vity of Arliclu IV ya,_ir for fed:'.al mcome tax purposes, such term dots not 2.11 Plan Year: The calenda, yaar. 1 'a^ ,� ....., ,. •L,•'�1'.'^^,T._. .`.4"o'+: "�.'PT^.. _'.7M;?aer...'•.',n,T"'P... �S1'.f2. _ 2,12 Retirement: The first date upon which both of the following plan). For purposes of this Section 5 02, a Participant's snall have occurred with respect to a Participant Separation Includible Compensation for the Current taxable year shall be from Service and attainment of Normal Retirerent Aqe deemed to include any Deferred Compensation for the 2.13 Separation from Service: Soverance of the Partic:t>ant's taxable year in excess of the amount permuted under the employment with the Employer. A Participant shall be Normal Limitation, aria the Participant's Includible Compen- deemed to have severed his employment with the Employer cation for any prior taxable year shoji be deemed to exclude for purposes of this Plan when, in accordance with the any amount that could have been deferred under the Normal established practices of the Employer• the employment Limitation for such prior taxable year. relationship is considered to have actually terminated. In the 5.03 Section 403(b) Annuities: For purposes of Sections 5.01 and caseof a Participant who is an independent contractor of the 5 02, amounts contributed by the Employer on behalf of a Employer, Separation from Service shall be deemed to have Participant for the purchase of an annuity contract described occurred when the Participant's contract under which in section 403(b) of the Internal Revenue Code shall be services are performed has completely expired and treated as If Such amounts constituted Deferred Compensa- terminated, there is no foreseeable possibility that the tion under this Plan for the taxable year in which the Employer will renew the contract or enter into a new contract contribution was made and shall thereby reduce the for the Participant's services.and it is not anticipated that the maximum amount that may be deferred for such taxable year. Participant will become an Employee of the Employer. V1. INVESTMENTS AND ACCOUNT VALUES Ill. ADMINISTRATION 6.01 Investment of Deferred Compensation: All investments of 3.01 Duties of Employer: 'i he Emplover shall have the authority to Participants'Deferred Compensation made by the Employer, including all property and rights purchased with such make all discretionary ripa de hick s affecting the rights or amounts and all income attributable thereto.shall be the sole benefits at Participants which may be required in the property of the Employer and shall not be held in trust for administration of this Plan. Participants or as collateral security for the fulfillment of the 3.02 Duties of Administrator: The Administrator, as agent for the Employers obligations under the Plan Such property shall Employer, shall perform nnndiscretionary administrative be subject to the claims of general creditors of the Employer, functions in connection with the Plan, inclucting the and no Participant or Beneficiary shall have any vested maintenance of Participants Accounts, the provision of interest or secured or preferred position with respect to such periodic reports of the status of each Account and the property or have any claim against the Employer except as a disbursement of benefits on behalf of the Employer in general creditor. accordance with the provisions of this Plan. 6.02 Crediting of Accounts:The Participant's Account shall reflect the amount and value of the investments or other property IV. PARTICIPATION IN THE PLAN obtained by the Employer through the investment of the Participant's Deferred Compensation. It is anticipated that 4.01 Initial Participation: An Employee may become a Participant the Employer's investments with respect to a Participant will by entering into a Joinder Agreement prior to the beginning of the calendar month in whrcn the Joinder Agreement is to conform to the investment t,but noshnce specified in the Participant's Joinder Agreement, but nothing herein shall be become effective to defer compensation not yet earned. construed to require the Employer to make any particular 4.02 Amendment of Joinder Agreement:A Participant may amend investment of a Participant's Deferred Compensation. Each an executed Joinder Agreement to change the amount of Participant shall receive periodic reports, not less frequently compensation not yet earned which is to be deferred than annually, showing the then-current value of his (including the reduction of such future deferrals to:ero)or to Account. change his investrnont preference (Subject to such restric- tions as may result from the nature or terms of any investment 6.03 Acceptance of Transfers: Pursuant to an appropriate written made by the Employer) Such aniandment shall become agreement, the Employer may accept and credit to a effective as of the beginning of the calendar month Participant's Account amounts transferred from another commencing after the date the amendment is executed. A employer within the same State representing amounts held Participant may at any time amend his Joinder Agreement to by such other employer under an eligible State deferred change the designated Beneficiary and such amendment compensation plan described in section 457 of the Internal shall become effective immediately. Revenue Code. Any such transferred amount shall not be treated as a deferral subject to the limitations of Article V, V. LIMITATIONS ON DEFERRALS provided however, that the actual amount of any deferral 5.01 Normal Limitation: Except as provided in Section 5 02, the under,the plan from which the transfer is made shall be taken maxurturn amount of Deferred Compensation for any into account in computing the catch-up limitation under Partic,pant for any taxable year shall not exceed the lesser of Section 5.02. $7,500.00 or 33 L/3 percent of the Participant's Includible 6.04 Employer Liability: In no event shall the Employer's liability to Compensation for the taxable year This limitation will pay benefits to a Participant under Article VI exceed the value ordinarily be equivalent to the lesser of $7,&00 00 or 25 of the arTlounlS credited to the Participants Account, the percent of the Participant's Normal Compensation. Employer shall not be liable for losses arising from 5.02 Catch-up Limitation: For each of the last three, (3) taxable depreciation or shrinkage in the value of any investments years of a Particiji,tnt ending before his attarrvrtent of Normal acquired under this Plan. Retirement Age. the maximum amount of Deferred Compensation shall be the lesser of (1) $15,000 or (2) the VII. BENEFITS sum of (i) the Normal Limitation f,,r the taxable year,and (n) that portion of the Normal Limitation for each of the prior 7.01 Retirement Benefits and Election on Separation from taxable years of Ih�l Pilrlicip.tnt cornmencin, after 1978 Service: Exct,pl as othofwiso provided in this Article Vtl, the i" during which the Pl:in w.1s in existence and the Participant distribution of a Participant's ACCOUnt shall commence was elrgiLli, to participate in the flan (or in any (;trier plan during the second calendar month after Inc close of the Plan established undr'�i seCtiur: 4t)7 01 the Inte�rnrrl Revenue Crude Year of the Participarit's Retirement, and the distribution of by an 0ntployrr witr.ui thit write ;t.tte as the Employer) less such Ret!rentent b1'I rlits shall bey nt.ide] in accordance, with thu amount of Duferie(i C,ompens;tti(in for c,acii such prior off(, of the payrnent options doscritwd in Section 7.02 taxablu year (including amounts di.ferrerd under such other Notwithstanding the IerFn)piny, the Participant may irrevo- 2 cably elect within 60 days following 9pparation from Service Sections 7 01 or 7 06.a death benefif equal to the value of the, to have the distribution of benetitscommence on adateother Participant's Account shall be payable to the Beneficiary than that d,-scribed in Ow pr,;cedinq sentence which Is at commencing no latter than 60 days afte r the close of the Plan least 60 days -alter the cJa:te such -loetion Is delivered in Year in which thr. Partecepant would have attained Normal writing to th,-� Ernpleyr_:r and forward,�d to the Aaministrator Retirement Age. Such death benelit shalt be paid in a lump but not later than 50 days after the close of the Flan Year of sum unless the Beneficiary elects a different payment Option the Participant's Retirement within 90 days of the Participant's death A Beneficiary who 7.02 Payment Options:As provided in Sections 7 01,7.05 and7,06. may elect a paymr nt option pursuant to the provisions of the preceding sentence shall be treated as if he were a Participant a Participant may elect to have the value of his Account for purposes of determining the payment options available distributed in accordance with one of the following payment under Section 7.02; provided, however, that the payment options. provided that such option is consistent with the limitations set forth in Section 7.03: option chosen by the Beneficiary must provide for payments to the Beneficiary over a period no longer than the life (a) Equal monthly. quarterly, semi-annual or annual expectancy of the Beneficiary if the Beneficiary ,s the payments in an amount chosen by the Participant, Participant's spouse and must provide for payments over a continuing until his Account is exhausted; period not in excess of fifteen (15) years if the Beneficiary is (b) One lump sum payment, not the Participant's spouse. 7.06 Disability:In the event a Participant becomes disabled before (C) Approximately equal monthly, quarterly, semi-annual the comrtlencement of Retirement benefils under Suction or annual payments, calculated to continue for a period 7.01, the Participant may elect to commence benefits under certain chosen by the Participant, one of the payment captions descnbed in Section 7 02 on the- (d) Payments equal to payments made by the issuer of a last day of the month following a determination of disabiliry retirement annuity policy acquired by the Employer; by the Employer. The Participant's request for such (e) Any other payment option elected by the Participant determination must be made within a reasonable time after and agreed to by the Employer. the impairment which constitutes the disability occurs A Participant shall be considered disabled for purposes or this A Participant's election of a payment option must be made at Plan if he is unable to engage in any substantial gainful least 30 days before the payment of benefits is to commence. activity by reason of any medically determinable physical or If a Participant fails to make a timely election of a payment mental impairment which r-an be expected to result in death option, benefits shall be paid monthly under option (c)above or be of long-continued and indefinite duration. Tne for a period of five years disability of any Participant shall be determined in 7.03 Limitation on Options: No payment option may be selected accordance with uniform principles consistently applied and by the PancC pant under Section 7 02 unless the present value upon the basis of such medicai evidence as the Emp!over deems necessary and desirable. of the payrents to the Participant.determined as of the date benefits comr-nence, exceeds 50 percent of the value: of the 7.07 Unforeseeable Emergencies: In the event an unforeseeable Participant's Account as of the date benefits commence. emergency occurs, a Participant may apply to the Employer Present value determinations under this Section shall be to receive that part of the value of his account that is made by the Administrator in accordance with the expected reasonably needed to satisfy the emergency need. If such an return multiples set forth in section 1 72--9 of the Federal application is approved by the Employer,the Participant shall incume Tax Regulations (or any successor provision to such be paid only such amount as the Employer deems necessary regulations). to meet the emergency need, but payment shall not be made to the extent that the financial hardship may be relieved 7.04 Post-retirement Death Benefits: Should the Participant die through cessation of deferral under the Plan, insurance or after he has begun to receive benefits under a payment other reimbursement, or liquidation of other assets to the option, the remaining payments. it any, under the payment extent such liquidation woulo not itself cause severe financial option shall bey payable to the Participants Beneficiary hardship An unforeseeable erergency shall be deemed to commencing within 60 days after the Administrator receives involve only circumstances of severe financial hardshiptothe proof of the Participant's death, unless the Beneficiary elects Participant resulting from a sudden and unexpected illness or payment undo:r a different payment option at least 30 days accident of the Participant or of a dependent (as defined in prior to the date that the first payment becomes payable to section 152(a) of the Internal Revenue Code) of the the Beneficiary In no event shall the. Employer or Participant.loss of the Participant's property due to casualty, Administrator be liable to the Beneficiary for the amount of or other similar and extraordinary unforeseeable cu'curn- any payment rrarJe In the name of the Participant before the stances as as a result of events beyond the conteol of the Administrator receives proof of death of the Participant Participant The need to send a Participant's child to college Notwithstanding the foregoing, payments to a Beneficiary or to purchase a new home Shall not be Considered shall not exto cl over it period longer than (I)fhc,Beneficiary s unforeseeable emergencies The determination as to life expectancy if the Beneficiary is the Participant's spouse whether such an unforeseeable emergency exists shall be or (it) fiffcen (15) years it the Beneficiary is not the based on the merits of each Individual case. Participant s spouse It no Bene•hciary is designated in the Joinder Agreenienf. Or if the ansignated Beneliciary duds not survive the Participant for a period of liftee,n (1S) days, then VIII. NON-ASSIGNADILITY It)(' commuted value Of any remaining payments under the No Participant or Beneficiary shall have any right to commute, payment Option shall be Baia in a lump suit) to the estate Of sell, assign, pledge, transfer or otherwise convey or enCurnber the the Participant 11 Me des nnafed Beneficiary survwes the right to receive any payments hereunder, which payments and Participant for d pe-riod of littoir(i 115) cMys, but does not rights area expressly declared to be non-assignable and non- ConLnue to live for the' rcni,lirnnq penult of p;tynlents under transferable the patvnient option Isis mop iitwd. it necessary,In cunfelrnuty IX. RELATIONSHIP TO OTHER PLANS AND EMPLOYMENT with the thud sentence of niiy section), then the conutiuted AGREEMENTS value' of any rernt,)inuic) f)aynie'nfti under the t)ayniltnt U))tinn shall be paid in :1 luriiu suns 10 the iastat< of Ihu Eienehciary This Pl;ui serves in addition to any other retirement. pension, or benelit plan or systeni presently in existence Or hereinafter 7.05 Pre-relirenient Death benefits: Should ihO Pd1ticrpant dice estublishead fur the• benefit of the Employer's eniployees, and before he has hegun to receive the benefit!, providead by parlicipa lion hceri•unrler shall not affect benefits re•ceivrtble under 3 ;rny such plan or system. Nothing contained ,n this Plan shall be period, the Employer notifies the Administrator in writing that it rn-emad to constitute an employment contract or agreement drsapprovos such amendment, in, which case such amendment twtv.,,en any Pzirh::rpant <tnd tho Employer or to give. any shall not trvCC)MU eflrtctive. In the event of such disapproval, the rlanccrpant the-right io be retained in the employ of the Employer. Administrator shall be under no obl:yatron to continue acting as for shall anything herein be construed to modify the terms of any Administrator hereunder. employment contract or agreement between a Participant ano the No amendment or termination of the Ian shall divest any Employer Participant of any rights with respect to compensation deferred before the date of the amendment or termination. X. AMENDMENT OR TERMINATION OF PLAN XI. APPLICABLE LAW The Employer may at any time amend this Plan provided that it This Plan shall be construed under the laws of the state where transmits such amendment in writing to the Administrator at least the Employer is located and is established with the intent that it 30 days prior to the effective date of the amendment. The consent meet the requirements of an"eligible Statedeferred compensation of the Administrator shall not be required in order for such plan" under section 457 of the Internal Revenue Code of 1954, as amendment to becorne effective, but the Administrator shall be amended. The provisions of this Plan shall be interpreted wherever under no obligation to continue acting as Administrator hereunder possible in conformity with the requirements of that section. it it disapproves of such amendment. The Employo r may at any time terminate this Plan. The Administrator may at any time propose an amendment to XI1. MENDER AND NUMBER the plan by an instrument in writing transmitted to the Employer at The masculine pronoun, whenever used herein,shall include the least 30 days before the effective date of the amendment. Such feminine pronoun, and the singular shall include the plural,except amendment shall become effective; unless, within such 30-day where the context requires otherwise. t 4 APPENDIX B DECLARATION OF TRUST of ICMA RETIREMENT TRUST ARTICLE I. Name and Definitions —ARTICLE It. Creation and Purpose of the Trust;Ownership of Trust Property SECTION 1.1. Name. The Name of the Trust created hereby is the SECTION 2.1. Creation. The Retirement Trust is created and ICMA Retirement Trust established by the execution of this Declaration of Trust by the Trustees SECTION 1.2. Definitions Wherever they are used herein, the and the participating Public Employers. following terms shall have the following respective meanings: SECTION 2 2 Purpose. The p purpose of the Retirement Trust is to (a) By-Laws The By-Laws referred to in Section 4.1 hereof, as provide for the cornmingled investment of funds heid by the Public amended from time to time. Employers in connection with their Deferred Compensation Plans. The Tr!:st Property shall be invested in the Portfolios, in Guaranteed established and maintained by a Public (b} Deferred Compensation Plan. red compensation plan Investment Contracts and in other investments recommend.,,d by the Public E Employer for the purpose of providing retirement income and other deferred benefits to its Investment Adviser under the supervision of the Board of Trustees. employees in accordance with theprovisions of section 457 of SECTION 2.3 Ownership of Trust Property. The Trustees shall have the Internal Revenue Code of 1954. as amended. legal title to the Trust Property. The Pubic Employers shall be the (c) Guaranteed Investment Contract A contract entered into by beneficial owners of the Trust Property. the Retirement Trust with insurance companies that provides for a guaranteed rate of return on :nvestments made pursuant to - such contract. ARTICLE III. Trustees (d) ICMA. Tne International City Managernent Association. SECTION 3.1. Number and Qualification of Trustees. (e) ICMA/RC Trustees. Those Trustees elected by the Public (a) The Board of Trustees shall consist of nine Trustees. Five of Employers who. in accordance with the provisions of Section the Trustees shall be full-time employees of a Public Employer 3.1(a) hereof,are also members of the Board of Directors of ICMA•- — (the Public Employee Trustees) who are authorized by such or RC. Public Employer toserveas Trustee.Theremaining four Trustees shall consist of two persons who, at the time of election! to the (I) Investment Adviser. The Investment Adviser that enters into a Board of Trustees, are members of the Board of Directors of Contract with the Retirement Trust to provide advice with respect ICMA and two persons who, at the time of election,are members to investment of the Trust Property. of the Board of Directors of RC (the ICMA,RC Trustees) One of (g) Employer Trust A trust created pursuant to an agreement the Trustees who is a director of ICMA. and one of the Trustees between RC and a Public Eripioyer for the purpose of investing who is a director of RC. shall, at the time of election, be full-time and adnunistenng the funds set aside by such employer rn employees of a Public Employer. connection with its deferred compensation agreements with its (b) No person may serve as a Trustee for more than one term in employees. any ten-year period. (h) Portfolios. The Portfolios of investments established by the SECTION 3 2. Election and Term Investment Adviser to the Retirement Trust, under the supervision of the Trustees, for the purpose of providing (a) Except for the Trustees appointed to fill vacancies pursuant investments for the Trust Property. to Section 3 5 hereof. the Trustees shall be elected by a vote of a majority of the Public Employers in accordance with the (i) Public Employee Trustees. Those Trustees elected by the procedures set forth in the By-Laws. Public Employers who, in accordance with the provisions of Section 3. 1(a) hereof, are full-time employees of Public (b) At the first election of Trustees, three Trustees shall be Employers elected for a term of three years. three Trustees shall be elected for a term of two years and three TfuSteeS shall be elected for a (j) Public Employer. A unit of state or local government, or any terrn of one year At each subsequent election, three Trustees agency or instrurnentt111ty thereof, that has adopted a Deferred shall be elected for a term (it tnree years and until his or her Compensation Plan and has executed this Declaration of Trust. successor is elected and qualified. (k) RC The International City Managemont Association SECTION 33. Nominations. The Trustees who are full-time Retirement Corporation. employees of Public Employers shall serve as the Nominating (1) Retirement l rust The Trust created by this Declaration of Committee for the Public Employee Trustees. The Nominating Trust. Committee shall cnooso candidates for Public Employee Trustees in (m) Trust Property The amounts held rn the Retifoinent Trust on accordance with the procedures set forth in the By-Laws, behalf of the Puhiic ErnF110yPrs The Trust I"Wi fly Shall includes SECTION 3.4, Resignation and Removal any income resuihn(I Inuit the ir!ve,stment of the amounts so hold (a) Any Trustre may resign as Trustee (without nerd for prier Or (n) 'fruc,tees The F'uhl!c: Fn1F>Icryee• Trtisto,:; and ICMA RC suhsrquentacccunung)by to!nstruniontinwritingsignedbythe T rustoi-s elected by filer Puhl!,: Lrupinytvs to'Ofve as nlurnberrsof 1 rustrr And t1011\,00d to file uthrr TruSIOOS acid such resignation the Hood of Trustee:: of (fit' H"tire'nlent Trust sh all br OPOChve upon s!ich delivery, or at a later date ;recording 1 r 1,, the terms of the instrument. Any of the Trustees may be times show that all such investments are a part of the Trust r.•rno:ed for cause, by a vote of a majority of the Public Property; Employers. (h) make, execute, acknowledge, and deliver any and all Ib) Fach F'UbIrC Employee Trustee shall ri•sign his or tier position documents of transfer and conveyance and any and all other Trustee within sixty days of the date on which he or she ceases instruments that may be necessary er appropriate tc carry out the r., a full-time employee of a Public Employer. powers herein granted; SECTION 3 S. Vacancies. The term of office of a Trustee shall (i) vote upon any stock, bonds,or other securities: give general terminate and a vacancy shall occur in the event of the death, or special proxies or powers of at!orney with or without power of resignation, removal, adjudicated incompetence or other incapacity to substitution, exercise any conversion privileges. subscription p=.,formthe)dutiesoftheo!ficeofa 'rrustee. Inthecaseofavacancy,the rights, or other options. and make any payments incidental remaining Trustees shall appoint such person as they in their discretion thereto: oppose, or consent to, or otherwise participate in, snail see tit isubject !o the IrrnrtetronS set forth in this Section),to serve. corporate reorganizations or other changes affecting corporate for the unexpired portion of the term of the Trustee who has resigned or securities, and delegate discretionary powers, and pay any otherwise ceased to be a Trustee. The appointment shall be made by a assessments or charges in connection therewith: and generally written instrument Signed by a majority of the Trustees. The person exercise any of the powers of an owner with respect to stocks, ap;.ointeC must be the same type of Trustee (i.e., Public Employee bonds, securities or other property held as part of the Trust Trustee or ICMAIRC Trustee) as the person who has ceased to be a Property; Tr;;sree An appointment of a Trustee may be made in anticipation of a (j) enter into contracts or arrangements for goods or services vacancy to occur at a later date by reason of retirement or resignation, required in connection with the operation of the Retirement provided that such appointment shall not becomeeftective prior to such Trust, including,but not limited to.contracts with custodians and retirement or resignation. Whenever a vacancy in the number of contracts for the provision of administrative services; Tr:.stees shall occur, until such vacancv is filled as provided in this (k) borrow or raise money for the purpose of the Retirement S•_ction 3 5. the Trusters in office,regardless of their number,shall have r rust in such amount,aria upon such terms and Conditions,as the all the powers granted to the Trustees and shall discharge all the duties Trustees shall deem advisable, provided that the aggregate imposed upon it;e Trustees by this Declaration. A written instrument amount of such borrowings shall not exceed 30010 of the value of certifying the existence of such vacancy signed by a majority of the the Trust Property. No person lending money to the Trustees Trustees shall be conclusive evidence of the existence of such vacancy. shall be bound to see the application of the money lent or to SECTION 3.6. Trustees Serve in Representative Capacity. By inquire into its validity, expediency or propriety of any such executing this Declaration,each Public Employer agrees that the Public borrowing, Employee Trustees elected by the Public Employers are authorized to 11) incur reasonable expenses as required for the operation of the act as agents and representatives of the Public Employers collectively. Retirement Trust and deduct such expenses from the Trust Property; ARTICLE IV. Powers of Trustees (m) bay expenses properly allocable to the Trust Property SECTION 4.1. Genera)Powers. The Trustees shall have the power to incurred in connection with the Deferred Compensation Plans or condi, ' the business of the Trust and to carry on its operations. Such the Employer Trusts and deduct such expenses from that portion pow,"( ill include, but shall not be limited to, the power to: of the Trust Property beneficially owned by the Public Employer (a) receive the Trust Property from the Public Employersor from to whom such expenses are properly allocable; a Trustee of any Employer Trust; (n) pay out of the Trust Property all real and personal property (b) enter into a contract with an Investment Adviser providing, taxes,income taxes and other taxes of any and all kinds which,in among other things, for the establishment and operation of the the opinion of the Trustees, are properly levied, or, assessed Portfolios, selection of the Guaranteed Investment Contracts in tinder existing or future laws upon, or in respect of, the Trust which the Trust Property may be invested, selection of other Property and allocate any such taxes to the appropriate accounts; investments for the Trust Property and the payment of reasonable (o) adopt,amend and repeal ttie Fay-Laws,provided that such By- fees to the Investment Adviser and to any sub-investment adviser Laws are at all limes consistent with the terms of this Declaration retained by the Investment Adviser: of Trust; (c) review annually the performance of the Investment Adviser (p) employ persons to make available interests in the Retirement and approve annually the contract with such Investment Adviser; Trust to employers eligible to maintain a deferred compensation (d) invest and reinvest the Trust Property in the Portfolios, the plan under section 457 of the Internal Revenue Code, as Guaranteed Investment Contracts and in any other investment amended; recommended by the Investment Adviser• provided that if a (q) issue the Annual Report of the Retirement Trust. and the Punlic Employer has directed that its monies be invested in disclosure documents and other iiterature used by the specified Portfolios or in a Guaranteed Investment Gonlract,the Retirement Trust; Trusties of the Retirement Trust shall invest such monies in (r) make loans, including the purchase of debt obligations, accordance with such directions, provided that all such loans shall bear interest at the current (e) keep such portion of the Trust Property in cash or cash market rate; balances as the Tnistc'1-�s,from time to time,may deem to be in the (s) contract for,and delegate any powers granted hereunder to, best interest of the Retirement Trust created hereby, without such officers, agents, employees, auditors and attorneys as the liability for interest thereon; Trustees may select, provided that the Trustees may not delegate (1) accept and retain for such tirne as they may deem advisable the powers set forth in paragraphs (b), (c)and to)of this Section any secunhes or other property received or acquired by them as 4 1 and may not delegate any powers if such delegation would Truslees hereunder, whether or not such securities or other violate their fiduciary duties; property would normally be purchased as investments here- (I) provide for the indemnification of the officers and Trustees of under. the Retirement Trust and purchase fiduciary insurance; i cause any securities or other property held as part of the (u) maintain books and records,including separate accounts for .,List Property to he registered in the name of the nefirement each Public Employer or Employer Trust and such additional Trust or ui thr name of,t norninr c, and to holJ tiny inveshuc n15 in separate aecounls as are requued under,and corisistent with,the brut r torn[,but the books and records of the Trustees shall at all Deferred Compensation Plan of each Public Employer, and 2 (v) do all such acts. take all such proceedings, and exercise all SECTION 5.3. Bond. No Trustee shall be obligated to give any bond such rights and privileges, allhough riot specifically mentioned or other security for the performance of any of his or her duties herein, as the Trustees may deem necessary or appropriate to hereunder. adrnininter the Trust Properly and to catry out the purposes of the t Retirement Trost ARTICLE VI. Annual Report to Shareholders ECTION 4 2 Distribution of Trust Property. Distributions of the The Trustees shall annually submit to the Public Employers a written Trust Property shall be matte to, or on behalf of,the Public Employer,in report of the transactions of the Retirement Trust, including financial accordance with the terms of the Deferred Compensation Plans or statements which shall be certified by independent public accountants Employer Trusts The Trustees of the Retirement Trust shall be fully chosen by the Trustees. protected in making payments in accordance with the directions of the Public Employers or the Trustees of the Employer Trusts v.'tthout ascertaining whether such payments are in compliance with the ARTICLE "II. Duration or Amendment of Retirement Trust provisions of the Deferred Compensation Plans or the agreements creating the Employer Trusts. 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 SECTION 4 3. Execution of Instruments. The Trustees may statement to that effect. The withdrawing Public Employer's beneficial unanimously designate any one or more of the Trustees to executo any interest in the Retirement Trust shall be paid out to the Public Employer instrument or document on behalf of all, including but not limited to the or to the Trustee of the Employer Trust, as appropriate. signing or endorsement of any check and the signing Df any applications, insurance and other contracts,, and the action of such SECTION 7.2. Duration. The Retirement Trust shall continue until designated Trustee or Trustees shall have the same force andeffectasif terminated by the vole of a majority of the Public p each taken by all the Trustees. casting one vote. Upon termination, all of the Trust Proropertyerty s,shall be paid out to the Public Employers or the Trustees of the Employer Trusts, ARTICLE V. Duty of Care and Liability of Trustees as appropriate. SECTION 5 1. Duty of Care. In exercising the powers heteinbefore SECTION 7.3. Amendment. The Retirement Trust may be amended granted to the Trustees, the Trustees shall perform all acts within their by the vote of a majority of the Public Employers,each casting one vote. authority for the exclusive purpose of providing benefits for the Public SECTION 7.4. Procedure. A resolution to terminate or amend the Employers, and shall perform such arts with the care, skill, prudence Retirement Trust or to remove a Trustee shall be submitted to a vote of and diligence in the circumstances then prevailing that a prudent person the Public Emp:oyers it: (a) a majority of the Trustees so direct,or (b) a acting in a like capacity and familiar with such matters would use in the petition requesting a vote, signed by not less than 25% of the Public conduct of an enterprise of a like character and with !Ike aims. Employers, is submitted to the Trustees. SECTION 5.2. Liability. The Trustees shall not be liable for any mistake of judgment cr other action taken in good faith, and for any action taken or omitted in reliance in good faith upon the books of ARTICLE Vill. Miscellaneous account or other records of the Retirement Trust, upon the opinion of SECTION 8.1. Governing Law. Except as otherwise required by state (^^unsel, or upon reports made to the Retirement Trust by any of its or local law, this Declaration of Trust and the Retirement Trust hereby cers, employees or agents or by the appraisers other e any sub- createa shall be construed and regulated by the laws of the District of investment adviser, accountants, appraisers or other experts or Columbia. consultants selected with reasonable care by the Trustees,officers or employees of the Retirement Trust. The Trustees shall also not be liable SECTION 8.2. Counterparts. This Declaration may be executed by for any toss sustained by the Trust Property by reason of any investment the Public Employers and Trustees in two or more counterparts,each of made in good faith and in accordance with the standard of care set forth which shall be deemed an original but all of which together shall in Section 5.1. constitute one and the same instrument. 3 1 AMENDMENT TO THE DECLARATION OF TRUST (APPENDIX R) Approved by ICIUTA Retirement Trust members, November 30, 1983 f ARTICLE Vill. Miscellaneous SECTION 8.3. Notwithstanding any other provision of this Declaration of Trust, until Decernber 31 , 1984, unless such period is extended by the Trustees, the Trust Property may include amounts held by the Retirement Trust on behalf of public employers that have not executed the Declaration of Trust. 4/84 s , .ram W-Wy.a�.L — �- J -YW•- _ _ _ _ _ _ `-L.Yi�(It _.- APPENDIX C TRUST AGREEMENT WITH THE ICMA RETIREMENT CORPORATION AGREEMENT made by and between the Employer named in the provided, however, that the Employer may direct investment by the attached resolution and the International City Managem2ntAs5ociahon Trustee among available investment alternatives in such proportions as Retirement Corporation (hereinafter the "Trustee" or "Retirement the Employer authorizes in connection vvith its deferred compensation Corporation''),a nonprofit corporation organized and existing under the agreements with its employees. For these purposes,these Trust Funds laws of the State of Delaware. for the purpose of investing and otherwise may be commingled with 1-rust Funds set aside by other Employers administering the funds set aside by Employers in connection with pursuant to the terms of the ICMA Retirement Trust.Investment powers deferred compensation plans established under section -157 of the vested in the Trustee by the Section may be delegated by the Trustee to Internal Revenue Code of 1954 (thee Code') This Agreement shall take any bank, insurance or trust company, or any investment advisor, effect upon acceptance oy the Trustee of its appointment by the manager or agent selected by it. Employer to serve as Trustee in accordance nerewith as set forth in the attached resolution. Section 2.2. Administrative Powers of the Trustee. The Trustee shall WHEREAS, the Employer has established a deferred compensation plan have the power in its discretion: under section 457 of the Code (the "Plan"); (a) To purchase, or subscribe for, any securities or other WHEREAS, in order that there will be SUfhcient funds available to property and to retain the same in trust. discharge the Employer's contractual obligations under the Plan, the Employer desires to set aside periodically amounts equal to the amount (b) To sell, exchange, convey. transfer or otherwise dispose of of compensation deferred, any securities or other property held by it, by private contract, or WHEREAS, the fu nds set aside, together with any and all assets derived at public auction. No person dealing with the Trustee shall be from the investment thereof, are to be exclusively within the dominion, bound to see the application of the purchase money or to inquire control, and ownership of the Employer, and subject to the Employer's into the validity, expediency, or propriety of any such sale or solute right of withdrawal, no employees having any interest other disposition. atsoever therein. (c) To vote upon any stocks. bonds, or other securities; to give NOW. l HEFEFORE, this Agreement witnesseth that (a) the Employer general or special proxies or powers of attorney with or without will pay monies to the Trustee fo be placed in deferred compensation power of substitution, to exercise any conversion privileges. accounts for the Employer. (b) the Trustee covenants that it will hold subscription rights, or other options, and to make any payments said sums. and any other funds wretch it may receive hereunder, in trust incidental thereto; to oppose, or to consent to, or otherwise for the uses and purposes and upon the terms and conditions participate in, corporate reorganizations or other changes hereinafter stated. and (c) the parties hereto agree as follows: affecting corporate securities, and to delegate discretionary powers, and to pay any assessments or charges in connection ARTICLE I. General Duties of the Parties. therewith; and generally to exercise any of the powers of an Section 1 1 G;rn,ral Duty of th-2 Employer The Employer shall make owner with respect to stocks. bonds,securities or other property regular periodic payments equal to the amounts of itr, employees' held as part of the Trust Funds. compensation which are deferred in accordance with the terms and (d) To cause any securities or other property held as part of the conditions of the Flan to the extent that such amounts are to be,invested Trust Funds to be registered in its own name, and to hold any under the Trust. investments in bearer form, but the books and records of the Suction 1 2 General Duties of the Trustee The Trustee shall hold all Trustee shall at all times show that all such investments area part funds received by it hereunder, which, together with the income of the Trust Funds. I shall consntutrt tht Trust Funds. It shall administer the Trust (e) To borrow or raise money for the purposeof the Trust in such Funds, collect the tricome tht�reot.and make payments therefrom.all as amount,and upon Such terms and conditions,as the Trustee shall here.iriatter pruvicJed The Truslt'� shall also hold all Trust Funds which deem advisable. and. for any sum so borrowed, to issue its are transferro(j to it as t uccossor Trustee by the Employer from existinq promissory note as Trustee, and to secure the repayment thereof d-fe.rred cornprnsation ananclemt-its with its Employees under plans by pledging all,or anypart,of the Trust Funds.No person lending descrit,ed in st ct on 4:,7 of !he Code Such Trust Funds shall be sub)ect money to the Trustee:shall be bound to see the application of the to all of thi-, IF rms and provisions of this Agreerment, money lent or to inquire into its validity,expediency or propriety of any such borrowing. ARTICLE It. Powers and Duties of the Trustee in Investment, (f) To keep such portion of the Trust Funds in cash or cash Administration, and Disbursement of the Trust Funds. balances as the Trustee, from time to time, may deem to be in the Section 2.1 Investment Powers and Duties of the Trustee. The best interest of the Trust created hereby, without liability for Trustee shall have tha power to invest aaridremvt)st the principal and interest thereon. income of the Trti:;t Funds and keep the Trust Funds invested, without (g) To accept and retain for such time as it may deem advisable jistiriction twtwt-,•n principal and income, in socunties or in other any securities or other property received or acquired by it as i:perly. real or personal, wticrev,,r sihiatod, including, but not hn,,ited Trustee hereunder, whether or not such securities or other ,o, stocks, common or pr efeired. bongs, retirenuuit annuify and property would normally be purchased as investment hereunder. rn'.Uran Ctl puliCn S, niottcjaclr•s, ar:a otlwr evidrnces Of inde'bwoovss or (h) To make, C�ieCutC, acknowledge, arid deliver any and aII owfwr,111p, invetirint,nt conip.uues, cununon or group trust funds, or documents of transfer aneJ conveyance and any and all other separak, and difft.•rent typt-s of IiunL: (incl )eliriry e•rjutty, fix(tef InCOme) instruments that may be necessary or appropriate tocarry out the which fulfill reiluiti,ments of st,lte and local guverrinwntal laws, powers herein granted. 1 (i) To settle, COnrprorniSe. or suhmil to arbitration any clainis, When an aCCOunt beCOmes an account staled. such accc)unl;hall bi` debts. r dania(;es dut7 nr nv:ing to or from thr• Trust Funds to finally seltled and the TrUS1Ce shall be completely discharged and commence or d•:fend suits or legal or administrative procr.-c-,,1;ngs. released,as it such account had been settled and allowed by a)udgrnent and to represent Trust Funds in all suds and legal and or decree of a court of competent jurisdtcthon in an action or proceeding administrative proceedings in which the Trustee and the Employer were parties. (1) To do all such acts take all such proceedings,andexercise all The Trustee shall have the right to apply at any time to a court of such rights and privileees. although not specifically rnennoned competent jur sd coon for the Iudicial settlement of its account herein, as the Trustee may deern necessary to administer the Trust Funds and to carry out the purposes of this Trust ARTICLE VI. Resignation and Removal of Trustee. Section 2.3 Distributions from the Trrrst Funds The Employer Section 6,1 Resignation of Trustee. The Trustee may resign at any hereby appoints the Trustee as its agent for the purpose of making time by filing wrth the Employer its written resignation.Such resignation distr,DUtions from the Trust Funds. In this regard the terms and shall take effect sixty (60) days from the date of such filing and upon conditions set forth in the Plan are to guide and control the Trustees appointment of a successor pursuant to Section 6.3., whichever shall power. first occur. Section 2.4 Valuation of Trust Funds At least once a year as of Section 6 2. Removal of Trustee. The Employer may remove the Valuation Dates designated by the Trustee. the Trustee shall determine Trustee at any time by delivering to the Trustee a written notice of its the value of the Trust Funds.Asses of the Trust Funds shall be valued at removal and an appointment of a successor pursuant to Section 6 3. their market values at the close of business on the Valuation Data, or. in Such removal shall no! take effect prior to sixtv (60) days from such the absence of readily ascertainable market value, as the Trustee shall delivery unless the Trustee agrees to an earlier effective date. determine, in accordance with methods consistently follcwed and Section 6.3 Appointment of Successor Trustee. The appointment of uniformly applied. a successor to the Trustee shall take effect upon the delivery to the ARTICLE Ill. For Protection of Trustee. Trustee of (a) an instrument in writing executed by the Employer Section 3.1. Evidence of Action by Employer. The Trustee may rely appointing such successor, and exonerating such successor from upon any certificate, notice or direction purporting to have been signed liability for the acts and omissions of its predecessor, and (b) an on behalf of the Employer which the Trustee believes to have been acceptance in writing, executed by such successor. signed by a duly designated official of the Employer. No cortimuniCation All of the provisions set forth herein with respect to the Trustee shall shall be binding upon any of the Trust Funds or Trustee until they are relate to each successor with the same force and effect as if such received by the Trustee. successor had been originally named as Trustee hereunder. Section 3 2 Advice of Counsel. The Trustee may consult with any It a successor is not appointed with sixty (60) days after the Trustee legal counsel with respect to the construction of this Agreement, its gives notice of its resignation pursuant to Section 6.1., the Trustee may duties hereunder.or any act.which it proposes to take or omit.and shall apply zo any court of competent )urisdiction for appointment of a not be liable for any action taken or omitted in good faith pursuant to successor. a advice. Section 6.4. Transfer of Funds to Successor.Upon the resignation or Section 3.3. Miscellaneous. The Trustee'- shall use ordinary care and removal of the Trustee and appointment of a successor, and after the reasonable diligence, but shall not be Iianle for any mistake o'i udgment final account of the Trustee has been properly settled, the Trustee shall or other action taken in good taith. The Trustee shall not be liable for any transfer and deliver any of the Trust Funds involved to such successor. loss sustained by the Trust Funds by reasons of any investment made in ARTICLE VII. Duration and Revocation of Trust Agreement. good faith and in accordance with the previsions of this Agreement. Section 7.1. Duration and Revocation. This Trust shall continue for The Trustee's duties and obligations shall be limited to those such time as may be necessary to accomplish the Purpose for which it expressly imposed upon it by this Agreement. was created but may be terminated or revoked at any time by the ARTICLE IV. Taxes, Expenses and Compensation of Trustee. Employer as it rt lates to anv and.or ail related particip:rung Employees. Section 4.1. Taxes. The Trustee shall deduct from and charge against Written notice of such termination or revocation shall be given to the the Trust Funds any taxes on the Trust Funds or the income thereof or Trustee by the Employer. Upon termination or revocation of the Trust, which the Trustee is required to pay with respect to the interest of any 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 person therein. Employer's continuing obligation to pay deferred compensation to Section 4.2 Expenses. The Trustee shall deduct from and charge Employees in accordance with the terms of the Plan. against the Trust Funds all reasonable expenses incurred by the Trustee Section 7.2 Amendment. The Employer shall have the right to amend in the administration of the Trust Funds. !ncluUrng counsel, agency, this Agreement in whole and in part but only with the Trustees written investment advisory, and other necessary fees. consent.Any such amendment shall become effective upon (a)delivery ARTICLE V. Settlement of Accounts. The Trustee shall keep accurate to the Trustee of a written instrument of amendment, and (b) the and detailr.d acCounts of all ievt•slnients. receipts, diSbursemr:ntS, and endorsement by the Trustee on such instrument of its consent'hereto. other transactions: hereunder. ARTICLE VIII. Miscellaneous. Within ninety (90) days after the close of each fiscal year, the Trustee Section 8.1. Laws of the District of Columbia to Govern. This shall render in dupllCate to tht, Employer an account of its acts and Agreement and the Trust hereby created shall be construed and transactions as Trustee hereunder If any part of the Trtist Fund shall be tn.ested throur_)h the medrilni of any common,collecnveor cornmingled regulated by the laws of the District of COlut»nia. Trust Funds, the lar,l an0u3i report of such Trust Funds shall be Section 8 2. Successor Employers The"Employer"shall inciudeany SLibmitted with and incorporated in the account. person who succeeds the Employer and who thereby becomes subject If within ninety (90) clays atter the mailing of the account or any to the obligations of the Employer under the Plan. ame ride d arcuunt the Employer nac; not filed with the Trustee notice of Section 8.3. Withdrawals. The Employer may, at any time,and from a othloction to any act or transaction of the Irustoe, the account or tirne to time, withdraw a portion or all of Trust Funds created by this !(','d account shall br'Curne an aCcuunI stalrrd It any objection has Agreement f.n•d,and if th"Ernplcyr'( is satisfied that itshc•rrld bowitfidi,awraur Section 8 4 Gender and Number. The masculine includes the lie.Count 1s adjusted I') ille Snip) ovr!r s sausfachon, tno L mpioyer feminine and the singula'includes the pl:,ral unless the context requires ail �r, vvrihnr) filod wrth th,- T Ii_r5tco s!o1lity,tillwoval of the account arid another ineaning. rl ri.Ul to"CUrne an account stated 2