HomeMy WebLinkAbout1984-27 Adopting the Deferred Compensation Plan of the ICMARESOLUTION NO. 27
Series of 1984
A RESOLUTION ADOPTING THE DEFERRED
COMPENSATION PLAN OF THE ICh1A
WHEREAS, the Employer has employees rendering valuable services; and
WHEREAS, the Employer wishes to establish a second deferred compensation
plan for such employees which will serve the interests of the Employer by
enabling it to provide retirement security for its employees by providing an
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 an
additional deferred compensation plan would be administered by the ICMA
Retirement Corporation will serve the above objectives.
NOW, THEREFORE, BE IT RESOLVED by the Town Council of Vaii,
Colorado, that
1. The Employer adopts the deferred compensation plan attached hereto
as Exhibit A and appoints the ICMA Retirement Corporation to serve as
administrator thereunder.
2. The Employer hereby authorizes the Town Manager to execute the ICMA
Retirement Trust attached hereto as Exhibit B.
3. The Employer hereby adopts the Trust Agreement attached hereto as
Ecxhibit C and appoints the ICMA Retirement Corporation as trustee hereunder
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.
The Personnel Director shall be the coordinator for this program and
shall receive necessary reports, notices, etc. from the ICMA Retirement Corpo-
ration 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.
INTRODUCED, READ, APPROVED AND ADOPTED, THIS 1$~. day of
December, 1984.
ATTEST
F~,ire!3 r.. ran meyer, ~'
Town Clzrk
Rodney E.(Slife yor
r ~
APPENDIX A
EMPLOYER")
DEFERRED COMPENSATION PLAN
I. INTRODt,iCTION
The Employer hereby establishes the Employer's Deferred
Compensation Plan, hereinafter referred toasthe "Plan." The Plan
consists of the previsions set forth in this document.
The primary purpose of this Plan is to provide retirement income
and other deferred benefits to the Employees of the Employer in
accordance with the provisions of section 457 of the Internal
Revenue Code of 7954, as amended.
This Plan shall be an agreement solely between the Employer
and participating Employees.
II. DEFINITIONS
2.09 Account: The bookkeeping account maintained for each
Participant reflecting the cumulative amount of the
Participant's Deferred Compensation, including any income,
gains, tosses, or increases or decreases in market value
attributable to the Employer's investment of the Participant's
Deferred Compensation, and further reflecting any distribu-
tions to the Participant ar the Participant's Beneficiary and
any tees or expenses charged against such Participant's
Deferred Compensation.
2.02 Adminiatrator. The person or persons named to carry out
certain nondiscretionary administrative functions under the
Plan, as hereinafter described. The Emptoyer may remove
any person as Administrator upon BO days advance notice in
writing to such person, in which case the Employer shalt
name another person or persons to act as Administrator. The
Administrator may resign upon 60 days advance notice in
writing to the Employer, in which the case the Employer shall
name another person or persons to act as Administrator.
2.03 9eneffclary: The person or persons designated by the
Participant in his Joinder Agreement who shall receive any
benefits payable hereunder in the event of the Participant's
death.
2.04 Deferred Compensation: The amount o} Normal Compensa-
tion otherwise payable to the Participant which the
Partlcipant and the ~mpioyer mutually agree to defer
hereunder, any amount credited to a Participant's Account by
reason of a transfer under Section 6.D3, or any other amount
which the Employer agrees to Credit to a Participant's
Account.
2.05 Employee: Any individual who provides services for the
Employer, whether as an employee of the Emptoyer or as an
independent contractor, and who has been designatetl by the
Employer as eligible to participate in the Plan.
2.Q6 Includible Compensation: The amount of an Employee's
compensation from the Employer for a taxable year that is
attributable to services pertormed for the Employer and that
fa includible in the Employee's gross income for the taxable
year far federal income tax purposes: such farm does not
include any amount excludable from gross income underthis
Plan or any other plan described in section 457(b) of the
Internal Revenue Code. any amount excludable from gross
income under section 403(b} of the Internal Revenue Code,
or any other amount excludable from gross income for
federal income tax purposes. Includible Compensation steal!
be determined without regard to any community property
laws.
2.07 Joinder Agreement: An agreement entered into between an
Employee and the Employer, including any amendments or
modifications thereof. Such agreement shall fix the amount
of Deferred Compensation, specify a preference among the
investment alternatives designated by the Employer,
designate the Employee's Beneficiary or Beneficiaries, and
incorporate the terms, conditions, and provisions of the Plan
by reference.
2.08 Normal Compensation: The amount of Compensation which
would be payable to a Participant by the Employer fpr a
taxable year i} no Joinder Agreement were in affect to defer
Compensation under this Plan.
2.09 Normal Retirement Age: Age 70, unless the Participant has
elected an alternate Norma! Retirement Age by written
instrument delivered to the Administrator prior to Separation
from Service. A Participant's Normal Retirement Age
determines (a) the latest time when benefits may commence
under this Pian (unless the Participant continues empioy-
mentafter Normal RetirementAge),ond (D) the period during
which a Participant may utilize the catch-up limitation of
Section 5.02 hereunder. Once a Participant has to any extent
utilized the catch-up limitation of Section 5.0?, his Normal
Retirement Age may not be changed.
A Participant's alternate Normal Retirement Age may not
be earlier than the earliest date that the Participant will
become eligible to retire and receive unreduced retirement
benefits under the Employer's basic retirement plan covering
the Participant and may not be later than the date the
Participant attains 8ge 70. If a Participant continues
employment after attaining age 70, not having previously
elected an alternate Norma! RetirementAge, the Partlcipant'e
alternate Normal Retirement Age shall not be later than the
mandatory retirement age, if any, established by the
Employer, or the age at which the Participant actually
separates from service if the Employer teas no mandatory
retirement age. If the Partlcipant will not become eligible to
receive benefits under a basic retirement plan maintained by
the Employer, the Participant's alternate Norma# Retirement
Age may not be earlier than attainment of age 55 and may not
be later than attainment of age 70.
2.10 Partidpant: Any Employee who has joined the Ptan pursuant
to the requirements of Article IV.
2.11 Plan deer: The calendar year.
212 Retirement: The first date upon which both of the follpwing
shall have occurred with respect to a Participant: Separation
from Service and attainment of Normal Retirement Age.
2.t3 Separation from 5ervtee: Severance of the Participant's
employment with the Employer. A Participant shall tie
deemed to have severed his employment with the Empioyer
for purposes of this Plan when, in accordance with the
established practices of the Employer, the employment
relationship is considered to have actually terminated. In the
case of a Participant who is an independent contractor of the
Employer, Separation frpm Service shall be deemed to have
occurred when the Participant's wntract under which
services are performed has completely expired and
terminated, there is no foreseeable possibility that the
Empioyer will renew the contract or enter into a new contract
for the Participant's services, and it is not anticipated that the
Participant will become an Employee of the Employer.
III. AIRMEN3STRATION
3.01 Duiiea of Employer: The Employer shall have the authority to
make aN discretionary decisions affecting the rights or
benefits of Participants which may be required in the
administration of this Plan.
3.02 Duties of Administrator: The Administrator, as agent for the
Employer, shall perform nondiscretianary administrative
functions in Connection with the Plan, including the
maintenance of Participants' Accounts, the provision of
periodic reports of the status of each Account and the
disbursement of benefits on behalf of the Employer in
accordance with the provisions of this Plan.
IV. PARTICIPATION IN TFIE PLAN
4.01 Enitial Participation: An Employee may become a Participant
by entering into a Joinder Agreement prior to the beginning
of the calendar month in which the Joinder Agreement is to
become effective to defer compensation not yet earned.
4.02 Amendment of Joinder Agreement: A Participant may amend
an executed Joinder Agreement to Change the amount of
Compensation not yet earned which is to be deferred
including the reduction of such future deferrals to zero) or to
change his investment preference (subject to such restric-
tions as may result fromthe nature orterms of any investment
made by the Employer). Such amendment shall become
effective as of the beginning of the calendar month
Commencing after the date the amendment is executed. A
Participant may at any time amend his Joinder Agreement to
change the designated Beneficiary and such amendment
shall become effective immediately.
V. LIMITATIONS ON DEFERRALS
5.01 Normal Lfmilation: Except as provided in Section 5.02, the
maximum amount of Deterred Compensation for arty
Participant for any taxable year shall not exceed the lesser of
X7,500.00 or 33 1/3 percent of the Participant's lncludibte
Compensation far the taxable year, This limitation will
ordinarily be equivalent to the lesser of 57,500.00 or 25
percent of the Participant's Normal Compensation.
5.02 Catch-up Limitation: For each of the last three {3) taxable
years of a Participant ending before his attainment of Normal
Retirement Age, the maximum amount of Deferred
Compensation shall be the lesser of: {1) 515,000 ar (2) the
sum of (i) the Normal Limitation for the taxable year, and (iij
that portion of the Normal Limitation for each of the prior
taxable years of the Participant commencing after 1878
during which the Plan was in existence and the Participant
was eligible to participate in the Plan (or in any other plan
established under section 457 of the Internal Revenue Code
by an employe- within the same State as the Emptoyer) less
the amount of Deferred Compensation for each such prior
taxable year (including amounts deferred under such other
plan). For purposes of this Section b.02, a Participant's
Includible Compensation for the current taxable year shall be
deemed to include any Deferred Compensation for the
taxable year in excess of the amount permitted under the
Normal Limitation, and the Participant's Includible Compen-
sation for any prior taxable year shall be deemed to exclude
any amount that could have been deferred under the Normal
Limitation for such prior taxable year.
5.03 Section 403(b) Annuities: For purposes of Sections 5.01 and
5.02, amounts contributed by the Empioyer on behalf of a
Participant for She purchase of an annuity contract described
in section 403(b) of the Internal Revenue Code shall be
treated as if such amounts constituted Deferred Compensa-
tion under this Plan for the taxable year in which the
contribution was made and shall thereby reduce the
maximum amount that may be deferred forsuch taxable year.
VI. INVESTMENTS AND ACCOUNT VALUES
B.01 Investment of Deferred Compensation: All investments of
Participants' Deferred Compensation made bythe Employer,
including all property and rights purchased with such
amounts and all income attributable thereto, shall be the sole
property of the Employer and shall not be held in trust for
Participants or as collateral security ipr the fulfillment of the
Employer's obligations under the Plan. Such property shall
be subject tv the claims of general creditors of the Employer,
and no Participant or Beneficiary shall have any vested
interest or secu-ed or preferred position with respect to such
property or have any claim against the Employer except as a
general creditor.
8.02 Crediting otAccounts: The Participant's AccountshaH retlect
the amount and value of the investments or other property
obtained by the Employer through the investment of the
Participant's Deferred Compensation. It is anticipated that
the Employer's investments with respect to a Participant wit!
conform to the investment preference specified in the
Participant's Joinder Agreement, but nothing herein shelf be
Construed to require the Employer to make any particular
investment of a Participant's Deferred Compensation. Each
Participant shall receive periodic reports, not Tess frequently
than annually, showing the then-current value of his
Account.
8.D3 Acceptance of Transfers: Pursuant to an appropriate written
agreement, the Employer may accept and credit io a
Participant's Account amounts transferred from another
employer within the same State representing amounts held
by such other employer under an eligible Slate deterred
compensation plan described in section 457 of the Internal
Revenue Code. Any such transferred amount shall not be
treated as a deferral subject to the limitations of Article V,
provided however, that the actual amount of any deferral
under the plan from which the transfer is made shall be taken
into account in cpmputing the Catch-up limitation under
Section 5.02.
8.04 Empioyer Llablllty: in no event shelf the Employer's liability to
pay benefits to a Participant underArticle VI exceed the value
of the amounts credited to the Participant's Account; the
Employer shalt not be liable for losses arising from
depreciation or shrinkage in the value of any investments
acquired under this Plan.
VlI. BENEFITS
7.01 Retirement Benefits and Election on Separation from
Service: Except as otherwise provided in this Article Vlf, the
distribution of 8 Participant's Account shall commence
during the second calendar month after the Closeot the Plan
Year of the Participant's Retirement, and the distribution o}
such Retirement benefits shall be made in accordance with
one of the payment options described in Section 7.02.
Notwithstanding the foregoing, the Participant may irrevo-
1
cably ele~~ within fi0 days following Separation from Service
to have the distribution of benefits commence on a date other
than that described in the preceding sentence which is at
feast 6o days after the date such election is defiveretl in
writing to the Employer and forwarded to the Administrator
but not later than 64 days after the close of the Plan Year of
the Participant's Retirement.
7.fl2 Payment Options: As provided in Sections 7.01, 7.45 and 7.06,
a Participant may elect to have the value of his Account
distributed in accordance with one of the fallowing payment
options, provided that such option is consistent with the
limitations set forth in Section 7.43:
a) Equal monthly, quarterly, semi-annual or annual
payments in an amount chosen by the Participant,
continuing until his Account is exhausted:
b} One lump sum payment;
c) Approximately equal monthly, quarterly, semi-annual
or annual payments, calculated to continue for a period
certain chosen by the Participant;
d) Payments equal to payments made by the issuer of a
retirement annuity policy acquired by the Employer;
e) Any other payment option elected by the Participant
and agreed to by the Employer.
A Participant's election of a payment option must be made at
east 30 days before the payment of bane#its is to com mence.
ff a Participant fails to make a timely election of a payment
option, benefits shall be paid monthly under option (c) above
for a period of five years.
7.~3 Limitation on Options: No payment option may be selected
by the Participant under Section 7.02 unless the presentvatue
of the payments to the Participant, determined as of the date
benefits commence, exceeds 50 percent of the value of the
Participant's Account as of the date benefits commence.
Present value determinations under this Section shall be
made by the Administrator in accordance with the expected
return multiples set forth in section 1.72-9 of the Federal
Income Tax Regulations {or any successor provision to such
regulations).
7.D4 Post-retirement Death Benefits: Should the Participant die
after he has begun to receive benefits under a payment
option, the remaining payments, if any, under the payment
option shall be payable to the Participant's Beneficiary
Commencing within 64 days after the Administrator receives
proof of the Participant's death, unless the Beneficiary elects
payment under a different payment option at least 30 days
prior to the date that the first payment becomes payable to
the Beneficiary. In no event shall the Employer or
Administrator be liable to the Beneficiary for the amount of
any payment made in the name of the Participant before the
Administrator receives proof of death of the Participant.
Notwithstanding the foregoing, payments to a Beneficiary
shall not extend over a period Eonger than {i) the Beneficiary's
fife expectancy iI the Beneticiary is the Par#icipant's spouse
or {ii) fifteen (15) years it the Beneficiary is not the
Participant's spouse. If no Beneficiary is designated in the
Joinder Agreement, or if the designated Beneficiary does not
survive the Participant for a period of fifteen {15) days, then
the commuted value of any remaining payments under the
payment option shall be paid in a lump sum to the estate of
the Participant. If the designated Beneficiary survives the
Participant for a period of fifteen (15) days, but does not
continue to live for the remaining period of payments under
the payment option (as modified, if necessary, in conformity
with the third lenience of this section), then the commuted
value of any remaining payments under the payment option
Shall be paid in a lump sum to the estate of the Beneficiary.
7.D5 Pre-retirement Death Benefits!: Should the Participant die
before he has begun to receive the benefits provided by
Sections 7.01 or 7.46, a death benefit equal to the value of the
Participant's Account shall be payable to the Beneficiary
commencing no later than fi0 days after the close of the Plan
Year in which the Participant would have attained Normal
Retirement Age. Such death benefit shall be paid in a lump
sum unless the Beneficiary elects a different payment option
within 94 days of the Participant's death. A Beneficiary who
may elect a payment option pursuant to the provisions of the
preceding sentence shall be treated as if he were a Participant
for purposes of determining the payment options available
under Section 7.42: provided, however, that the payment
option chosen by the Beneficiary must provide for payments
to the 8enefiCiary over a period no longer than the life
expectancy of the Beneficiary if She Beneticiary is the
Participant's spouse and must provide for payments over a
period not in excess of fifteen (15} years if the $eneficiary is
not the Participant's spouse.
7.05 Disability: I n the event a Participant becomes disabled before
the commencement of Retirement benefits untler Section
7.01, the Participant may elect to commence benefits under
one of the payment options described in Section 7.42 on the
last day of the month following a determination of disability
by the Employer. The Participant's request for such
determination must be made within a reasonable time after
the impairment which constitutes the disability occurs. A
Participant shah be considered disabled for purposes of this
Plan if he is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death
or be of long-continued and indefinite duration. The
disability of any Participant shall be determined in
accordance with uniform principles consistently applied and
upon the basis of such medical evidence as the Employer
deems necessary and desirable.
7.47 EJntoreseeable Emergencies: In the event an unforeseeable
emergency occurs, a Participant may apply to the Employer
to receive that part of the value of his account that is
reasonably needed to satisfy The emergency need. If such an
application is approved by the Employer, the Participant shall
be paid only such amount as the Employer deems necessary
to meet the emergency need, but payment shall not be made
to the extent that the financial hardship may be relieved
through cessation of deferral under the Pfan, insurance or
other reimbursement, or Liquidation of other assets to the
extent such liquidation would not itself cause severe financial
hardship. An unforeseeable emergency shalt be deemed to
involve only circumstances of severefinancial hardship to the
Participant resulting from a sudden and unexpected illnessor
accident of the Participant or of a dependent (as defined in
section 152(a) of the internal Revenue Code} of the
Participant, foss of the Participant's property due to casualty,
or other similar and extraordinary unforeseeable circum-
stances arising as a result of events beyond the control of the
Participant The need to send a Participant's child to college
or to purchase a new home shalt not be considered
unforeseeable emergencies. The determination as to
whether such an unforeseeable emergency exists Shall be
based on the merits of each individual case.
Vlfl. NON-ASSIGNABILITY
No Participant or Beneficiary shall have any right to commute,
setE, assign, pledge, transfer or otherwise convey or encumber the
right to receive any payments hereunder, which payments and
rights are expressly declared to be non-assignable and non-
transferable.
IX. RELATIONSHIP TO OTHER PLANS AND EMPLOYMENT
AGREEMENTS
This Plan serves in addition to any Other retirement, pension, or
benefit plan or system presently m existence or hereinafter
established for the benefit of the Employer's employees, and
participation hereunder shah not affect benefits receivable under
3
any such plan or system. Nothing contained in this Plan shall be
deemed to constitute an employment Contract or agreement
between any Participant and the Employer or to give any
Participant the right to be retained in the employ of the Employer.
Nor shall anything herein be construed to modify the terms of any
employment contract or agreement between a Participant and the
Employer.
X. AMENDMENT OR TERMfNAT10N OF PLAN
The Employer may at any time amend this Plan provided that it
transmits such amendment in writing to the Administrator at least
3t) days prior to the effective date of the amendment. The consent
of the Administrator shall not be required in order for such
amendment to become effective, but the Administrator shall be
under no obligation to continue acting as Administrator hereunder
if it disapproves of such amendment. The Employer may at any
time terminate this Plan.
The Administrator may at any time propose an amendment to
the Plan by an instrument in writing transmitted tathe Employer at
least 30 days before the effective date of the amendment. Such
amendment shall become effective unless, within such 3Q-day
period, the Employer notifies the Administrator in writing that it
disapproves such amendment, in which case such amendment
shall not become effective. in the event of such disapproval, the
Administrator shall be under no obligation to continue acting as
Administrator hereunder.
No amendment or termination of the Plan shall divest any
Participant of any rights with respect to compensation deferred
before the date of the amendment or termination.
XI. APPLICABLE LAW
This Plan shall be construed under the taws of the state where
the Employer is located and is established with the intent that 'rt
meet the requirements of an "eligible State deferred compensation
plan" under section 457 of the Internal Revenue Code of 1954, as
amended. The provisions of this Plan shall 6e interpreted wherever
passible in conformity with the requirements of that section.
XI1. GENDER AND NUMBER
The masculine pronoun, whenever used herein, shall include the
feminine pronoun, and the singular shall includethe plural,except
where the context requires otherwise.
AMENDMENT TO THE DECLARATION
QF TRUST {APPENDfX B~
Approved by 1CMA Retirement
Trust members,
November 30, 1983
ARTICLE V1ll. Miscellaneous
SECTION 8.3. Notwithstanding any other provision
of this Declaration of Trust, until December 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.
s/ea
APPENDIX 8
DECLARATION OF TRUST
of
ICMA RETIREMENT TRUST
ARTICLE I. Name and Definitions
SECTION 1.1. Name. The Name of the Trust created hereby is the
ICMA Retirement Trust.
SECTION 1.2. Definitions. Wherever they are used herein, the
following terms shall have the following respective meanings:
a) By-Laws. The By-Laws referred to in Section 4.1 hereof, as
amended Pram time to time.
b) Deferred Compensation Plan. A deferred compensation plan
established and maintained by a Public Employer forthe purpose
of providing retirement income and other deferred benefits to its
employees in accordance with the provisions of section 457 of
the Internal Revenue Gode o! 1854. as amended.
cj Guaranteed Investment Contract. A contract entered into by
the Retirement Trust with insurance companies that provides for
a guaranteed rate of return on investments made pursuant to
such contract.
dj ICMA. The International City Management Association.
ej ICMA/RC Trustees. Those Trustees elected by the Public
Employers whp, in accordance with the provisions of Section
3.1(a) hereof, are also members of the Board of Directors of ICMA
or RG.
f) Investment Adviser. The tnvestment Adviser that enters into a
wntract with the Retirement Trust to provide advice with respect
to investment of the Trust Property.
g} Emptpyer Trust. A trust created pursuant to an agreement
between RC and a Public Employer for the purpose of investing
and administering the funds set aside by such employer in
connection with its deferred compensation agreements with its
emproyees.
h} Portfolios. The Portfolios at investments established by the
Investment Adviser to the Retiremen# Trust, under the
supervision of the Trustees, for the purpose of providing
investments for the Trust Property.
i) Public Employee Trustees. Those Trustees elected by the
Public Employers who. in accordance with the provisions of
Section 3.1{aj hereof, are full-time employees of Public
Empioyers.
jj Public Employer. A unit of state or local government, or any
agency or instrumentality thereof, that has adopted a Deferred
Compensation Plan and has executed this Declaration of Trust.
k) RC. The International City Management Association
Retirement Corporation.
I} Retirement Trust. The Trust Created by this Declaration of
Trust.
m} Trust Property. The amounts held in the Retirement Trust on
behalf of the Public Employers. The Trust Property shall include
any income resulting from the investmentof theamountsso held.
nj Trustees. The Public Employee Trustees and ICMAlRC
Trustees elected by the Public Employers to serve as members of
the Board of Trustees of the Retirement Trust.
ARTICLE II. Creation and Purpose of the Trust; Ownership of Trust
Property
SECTION 2.1. Creation. The Retirement Trust is created and
established by the execution of this Declaration of Trust by the Trustees
and the participating Public Employers,
SECTION 2.2. Purpose. The purpose of the Retirement Trust is to
provide for the commingled investment of funds held by the Public
Empioyers kn Connection with their Deferred Compensation Plans. The
Trust Property shall be invested in the Portfolios, in Guaranteed
investment Contracts and in other investments recommended by the
Investment Adviser under the supervision of the Board of Trustees.
SEGTION 2.3 Ownership of Trust Property. The Trustees shalE have
legal title to the Trust Property. The Public Employers shall be the
beneficial owners of the Trust Property.
ARTICLE III. Trustees
SECTION 3.1. Number and Oualkfication of Trustees.
aj The Board of Trustees shall consist of nine Trustees. Five of
the Trustees shall be full-time employees of a Public Emplpyer
the Public Employee Trustees] who are authorized by Such
Public Employer to serve as Trustee. The remaining four Trustees
shall consist of two persons who, at the time of election to the
Board of Trustees, are members of the eaard of Directors of
ICMA and two persons who, at the time of election, are members
of the Board of Directors of RC (the ICMA/RC Trustees]. One of
the Trustees who is a director of kCMA, and one of the Trustees
who is a director of RC, shall, at the time of election, be full-time
employees of a Public Employer.
b) No person may serve as a Trustee for more than one term in
any ten-year period.
SECTION 3.2. Election end Term.
a} Except for the Trustees appointed tp fill vacancies pursuant
to Section 3.5 hereof, the Trustees shall be elected by a vote of a
majority of the Public Employers in accordance with the
procedures set forth in the ay-Laws.
bj At the first election of Trustees, three Trustees shalt be
elected for a term of three years. three Trustees shall be efaCted
for a term of two years and three Trustees shall be elected for a
term of one year. At each subsequent election, three Trustees
shall be elected for a term of three years and until his or her
successor is elected and qualified.
SECTION 3.3. Nominations. The Trustees who are full-time
employees of Public Employers shalt serve as the Nominating
Committee for the Public Employee Trustees. The Nominating
Committee shall choose canoidates for Public Employee Trustees in
accordance w+th the procedures set forth in the By-Laws.
SECTION 3.4 Resignation and Removal.
a) Any Trustee may resign as Trustee {without need for prior or
subsequent account+ng) by an instrument in writing s+gned by the
Trustee and delivered to the other Trustees and such resignation
shall be eftective 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 which he or she ceases
to be a full-time employee of a Public Employer.
SECTION 3.5. Vacancies. The term of office of a Trustee shall
terminate and a vacancy shall occur in the event of the death,
resignation, removal, adjudicated incompetence or other incapacity to
perform the duties of the office of a Trustee. in the case of a vacancy, the
remaining Trustees shall appoint such person as they in theirdiscretion
shall see fit (subject to the limitations set forth in this Section), to serve
for the unexpi red portion of the term of the Trustee who has resigned or
otherwise ceased to be a Trustee. The appointment shall be made by a
written instrument signed by a majority of the Trustees. The person
appointed must be the same type of Trustee (i.e., Public Employee
Trustee ar ICMA/RC Trustee) as the person who has ceased to be a
Trustee. An appointment of a Trustee may be made in anticipation of a
vacancy to occur at a later date by reason of retirement or resignation,
provided that such appointment shall not become etfectiveprior tosuch
retirement or resignation. Whenever a vacancy in the number of
Trustees shall occur, until such vacancy is filled as provided in this
Section 3.5. the Trustees in office, regardlessof theirnumber, shat! have
all the powers granted to the Trustees and shall discharge all the duties
imposed upon the Trustees by this Declaration. A written instrument
certifying the existence of such vacancy signed by a majority of the
Trustees shall be conclusive evidence of the existence o(such vacancy.
SECTION 3.6. Trustees Serve in Representative Capacity. fay
executing this Declaration, each Public Emplvyeragreesthatthe Public
Employee Trustees elected by the Public Employers are authorized to
act as agents and representatives of the Public Employers collectively.
ARTICLE IV. Powers of Trustees
SECTION 4.1. General Powers. The Trustees shall have the power to
conduct the business of the Trust and to carry on its operations. Such
power shall include, but shall not be limited to, the power to:
a) receive the Trust Property from the Public Employers or from
a Trustee of any Employer Trust;
b) enter into a contract with an Investment Adviser providing,
among other things, for the establishment and operation of the
Portfolios, selection of the Guaranteed Investment Contracts in
which the Trust Property may be invested, selection of other
investments forthe Trust Property and the payment of reasonable
fees to the Investmen# Adviser and to any sub-investment advise-
retained by She Investment Adviser;
c) review annuahy the performance of the Investment Adviser
and approve annually the contract with such Investment Adviser;
d) invest and reinvest the Trust Property in the Portfolios, the
Guaranteed Investment Contracts and in any other investment
recommended by the Investment Adviser, provided that if a
Public Employer has directed tha# its monies be invested in
specified Portfolios or in a Guaranteed Investment Contract, the
Trustees of the Retirement Trust steal! invest such monies in
accordance with such directions; ,
e) keep such portion of the Trust Property in cash or cash
balances as the Trustees, from time to time, may deem to be in the
best interest of the Retirement Trust created hereby, without
liability for interest thereon;
f) accept and retain for such time as they may deem advisable
any securities or other property received or acquired by them as
Trustees hereunder, whether pr not such securities or other
property would normally be purchased as investments here-
under:
g) cause any securities or other property held as part of the
Trust Property to be registered in the name of the Retirement
Trust or in the name of a nominee, and to hold any investments in
bearer form, but the books and records of the Trustees shall at all
times show that all such investments are a part of the Trust
Property;
h) make, execute. acknowledge, and deliver any and alt
documents of transfer and conveyance and any and all other
instruments that may be necessary or appropriate to carry out the
powers herein granted;
i) vote upon any stack, bonds, or other securities; give general
or special proxies or powers of attorney with or without power of
substitution; exercise any conversion privileges, subscription
rights, or other options. and make any payments incidental
thereto; oppose, or consent to, or otherwise participate in,
corporate reorganizations or other changes affecting corporate
securities, and delegate discretionary powers, and pay any
assessments or charges in connection therewith; and generally
exercise any of the powers of an owner with respect to stocks,
bonds, securities or other property held as part of the Trust
Property;
j) enter into contracts or arrangements for goods or services
required in connection with She operation of the Retirement
Trust, including, but not limited to, contracts with Custodians and
Contracts for the provision of administrative services;
k) borrow or raise money for the purpose of the Retirement
Trust in such amount. and upon such terms and conditions, as the
Trustees shall deem advisable, provided that the aggregate
amount of such borrowings shalt not exceed 309b of the value of
the Trust Property. No person lending money to the Trustees
shall be bound to see the application of the money lent or to
inquire into its validity, expediency or propriety of any such
borrowing;
l} incur reasonable expenses as required forthe operation of the
Retirement Trust and deduct such expenses from the Trust
Property;
m) pay expenses properly allocable to the Trust Property
incurred in connection with the Deferred Compensation Plans or
the Employer Trusts and deduct such expenses from that portion
of the Trust Property beneticialEy owned by the Public Employer
to whom such expenses are properly allocable;
n) pay out of trie Trust Property all real and personal property
taxes, income taxes and other taxes of any and all kinds which, in
the opinion of the Trustees, are properly levied, or assessed
under existing or future laws upon, or in respect of, the Trust
Property and allocate any such taxes to the appropriate accounts;
o) adopt, amend and repeal the fay-Laws, provided that such ey-
Laws are ai 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
pkan under section 457 of the Internal Revenue Code, as
amended;
q) issue the Annual Repprt of the Retirement Trust, and the
disclosure documents and other literature used by the
Retirement Trust;
r) make loans, including the purchase of debt obligatipns,
provided that all such towns shall bear interest at the current
market rate;
s) contract for, and delegate any powers granted hereunder to,
such officers, agents, employees, auditors and attorneys as the
Trustees may select, provided that the Trustees may not delegate
the powers set forth in paragraphs (b), (c) and (o) of this Section
4.1 and may not delegate any powers if such delegation would
violate their fiduciary duties;
t) provide far the indemnification ofthe otficersand Trustees of
the Re#iremenl Trust and purchase fiduciary insurance:
u) maintain books and records, including separate accounts for
each Public Employer or Employer Trust and such additional
separate accounts as are required under, and consistentwith, the
Deferred Compensation Plan of each Public Employer, and
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v} do all s, acts, take all such proceedings, and exercise all
such rights and privileges, although not specifically mentioned
herein, as the trustees may deem necessary or appropriate to
admin ister the Trust Property and to carry out the purposes of the
Retirement Trust.
SECTION 4.2. Distribution of Trust Property. Distributions of the
Trust Property shall be made to, or on behalf af, the Public Employer, in
accordance with the terms of the Deferred Compensation Plans or
Employer Trusts. The Trustees of the Retirement Trust shall be fully
protected in making payments in accordance with the directions of the
Public Employers or the Trustees of the Employer Trusts without
ascertaining whether such payments are in compliance with the
provisions of the Deferred Compensation Plans or the agreements
creating the Employer Trusts.
SECTION 4.3. Execution of Instruments. The Trustees may
unanimously designate any one or more of the Trustees to execute any
instrument or document on behalf of all, including but riot limited to the
signing or endorsement of any check and the signing of any
applications, insurance and other contracts, and the action of such
designated Trustee or Trustees shall have thesame force and effect as if
taken by all the Trustees.
ARTICLE V. Duty of Care and Liability o1 Trustees
SECTION 5.1. Duty of Care. In exercising the powers hereinbefore
granted to the Trustees, the Trustees shall perform all acts within their
authority for the exclusive purpose of providing benefits tar the Public
Employers, and shall perform such acts with the care, skill, prudence
and diligence in the circumstancesthen prevailing that a prudent person
acting in a like capacity and familiar with such matters would use in the
conduct of an enterprise of a like character and with like aims.
SECTION 5.2. Liability. The Trustees shall not be liable for any
mistake of judgment or other action taken in good faith, and for any
action taken or omitted in reliance in good faith upon the books of
account or other records of the Retirement Trust, upon the opinion of
counsel, or upon reports made to the Retirement Trust by any of its
officers, employees or agents or by the Envestment Adviser or any sub-
investment adviser, accountants, appraisers or other experts or
consultants selected with reasonable care by the Trustees, officers or
employees of the Retirement Trust. The Trustees shall also not be liable
for any loss sustained by the Trust Property by reason of any i nvestmeni
made in good faith and in accordance with thestandard ofcare setforth
in Section 5.t.
SECTION 5.3. Bond. No Trustee shall be obligated to give any bond
or other security for the performance of any of his or her duties
hereunder.
ARTICLE VI. Annual Report to Shareholders
The Trustees shall annually submit to the Public Employers a written
report of the transactions of the Retirement Trust, including financial
statements which shall be certified by independent public accountants
chosen by the Trustees.
ARTICLE Vil. Duration or Amendment of Retirement Trust
SECTION 7.1. Withdrawal. A Public Employer may, at any time, with-
drawfrom this Retirement Trust by delivering to the Board of Trustees a
statement to that effect. The withdrawing Public Employer's beneficial
interest in the Retirement Trust shalt be paid out to the Public Employer
or to the Trustee of the Employer Trust, as appropriate.
SECTION 7.2. Duration. The Retirement Trust shall continue until
terminated by the vote of a majority of the Public Employers, each
casting ane vote. Upon termination, all of the Trust Property shall be
paid out to the Public Employers orthe Trustees of the Employer Trusts,
as appropriate.
SECTION 7.3. Amendment. The Retirement Trust may be amended
by the vote of a majority of the Public Employers, each casting onevote.
SECTION 7.4. Procedure. A resolution to terminate or amend the
Retirement Trust ar to remove a Trustee shall be submitted to a vote of
the Public Employers if: {ay a majority of the Trustees so direct. or (b) a
petition requesting a vote, signed by not less than 25°/0 of the Public
Employers, is submitted to the Trustees.
ARTICLE VIII. lNlscellaneous
SEGTION 8.1. Governing Law. Except as otherwise required by state
or local law, this Declaration of Trust and the Retirement Trust hereby
created shall be construed and regulated by the laws of the District of
Columbia.
SECTION 8.2. Counterparts. This Declaration may be executed by
the Public Employers and Trustees in two or morecounterparts.each of
which shall be deemed an original but all of which together shall
constitute one and the same instrument.
APPfNDfX C
TRUST AGREEMENT WITH
THE ICMA RETIREMENT CORPORATION
AGREEMENT made by and between the Employer named in the
attached resolution and the International City Management Association
Retirement Corporation {hereinafter the "Trustee" or "Retirement
Corporation"}, a nonprofit corporation organized andexisting underthe
taws of the State of Delaware, for the purpose of investing and otherwise
administering the funds set aside by Employers in connection with
deferred compensation plans established under section 457 of She
Internal Revenue Code of 1954 (the"Code"). This Agreement shall take
effect upon acceptance by the Trustee of its appointment by the
Employer to serve as Trustee in accordance herewith as set forth in the
attached resolution.
WHEREAS, the Employer has established adeferred compensation plan
under section 457 of the Code (the "Plan"};
WHEREAS, in order that there wilt be sufficient funds available to
discharge the Employer's contractual obligations under the Plan, the
Employer desires to set aside periodically amounts equal to the amount
of compensation deferred;
WHEREAS, the funds set aside. together with any and all assets derived
from the investment thereof, are to be exclusively within the dominion,
control, and ownership of the Employer, and subject to the Employer's
absolute right of withdrawal, no employees having any interest
whatsoever therein;
i~40W, THEREFORE, this Agreement witnesseth that (a} the Employer
will pay monies to the Trustee to be placed in deferred compensation
accounts for the Employer, (b) the Trustee covenants that it will hold
said sums, and any other funds which it may receive hereunder, in trust
or the uses and purposes and upon the terms and conditions
hereinafter stated; and (c) the parties hereto agree as follows:
ARTICLE I. General Duties o1 the Parties.
Section 1.1. General Duty of the Employer. The Employer shall make
regular periodic payments equal to the amounts of its employees'
compensation which are deferred in accordance with the terms and
conditions of the Plan to the extent that such amounts are to be invested
under the Trust.
Section 1.2. General Duties of the Trustee. The Trustee shall hold all
funds received by ii hereunder, which, together with the income
therefrom, shall constitute the Trust Funds. It shall administer the Trust
Funds, collect the income thereof, and make payments therefrom, all as
hereinafter provided. The Trustee shall also hold all Trust Funds which
are transferred to it as successor Trustee try the Employer from existing
deferred compensation arrangements with its Employees under plans
described in section 457 of the Code. Such Trust Funds shall be subject
So all of the terms and provisions of this Agreement.
ARTICLE I1. Powers and Duties o1 the Trustee to Investment,
Administration, and Disbursement of the Trust Funds.
Section 2.1. Investment Powers and Duties of the Trustee. The
Trustee shall have the power to invest and reinves# the principal and
income of the Trust Funds and keep the Trust Funds invested, without
distinction between principa! and income, in securities or in other
property, real or personal, wherever situated, including, but not limited
to, stocks. common or preferred, bonds, retirement annuity and
insurance policies. mortgages, and other andantes of indebtedness or
ownership, investment companies, Common or group trust funds, or
separate and different types of funds {includmg equity, fixed income)
which fulfill requirements Of state and focal governmental laws,
provided, however, that the Employer may direct investment by the
Trustee among available investment alternatives in such proportions as
the Employer authorizes in connection with its deterred compensation
agreements with its employees. For these purposes, these Trust Funds
may be commingled with Trust Funds set aside by other Employers
pursuant to the terms of the ICMA Retirement Trust. Investment powers
vested in the Trustee by the Section may be delegated by the Trustee to
any bank, insurance or trust company, or any investment advisor,
manager ar agent selected by it.
Section 2.2. Administrative Powers of the Trustee. The Trustee shall
have the power in ils discretion:
a} To purchase, or subscribe for, any securities or other
property and to retain the same in trust.
b) To sell, exchange, convey, transfer or otherwise dispose of
any securities or other property held by it, by private contract, or
at public auction. No person dealing with the Trustee shalt be
bound to see the application of the purchase money or to inquire
into the validity, expediency, or propriety of any such sale or
other disposition.
c) To vote upon any stocks, bonds, or other securities; to give
general or special proxies or powers of attorney with or without
power of substitution; to exercise any conversion privileges,
subscription rights, or other options, and to make any payments
incidental thereto; to oppose, or to consent to, or otherwise
participate in, corporate reorganizations or other changes
affecting corporate securities, and to delegate discretionary
powers, and to pay any assessments or charges in connection
therewith; and generally to exercise any of the powers of an
owner with respect to stocks, bonds, securities ar other property
held as part of the Trust Funds.
dJ To cause any securities or other property held as part of the
Trust Funds to be registered in its own name, and to hold any
investments in bearer form, but the books and records of the
Trustee shall of all times show that all such investments are a part
of the Trust Funds.
e) To barrow ar raise money for the purpose of the Trust in such
amount, and upon such terms andcondittons,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 alt, or any part, of the Trust Funds. No person lending
money to the Trustee shall be bound to see the application of She
money lent ar to inquire into its validity, expediency or propriety
of any such borrowing.
f) To keep Such portion of the Trust Funds in cash or cash
balances as the Trustee, from time to time, may deem to be in the
best interest of the Trust created hereby, without liability for
interest thereon.
g) To accept and retain for such time as it may deem advisable
any securities or other property received or acquired by it as
Trustee hereunder, whether or not such securities or other
property would normally be purchased as investment hereunder.
h) To make, execute, acknowledge, and deliver any and ati
documents of transfer and conveyance and any and all other
instruments that may be necessary or appropriate to Carry out the
powers herein g-anted.
i} To settle, compromise, or submit to arbitration any Gaims,
debts. or damages due or owing to or from the Trust Funds: to
commence or defend suitsor legal oradmmistrativeproceedings:
and to represent the Trust Funds in ail suits and legal and
administrative proceedings.
j) To do all such acts. take all such proceedings, and exercise ail
such rights and privileges, although not specifically mentioned
herein, as the Trustee may deem necessary to administer the
Trust Funds and to carry out the purposes of this Trust.
Section 2.3. Distributions from the Trust Funds. The Employer
hereby appoints the Trustee as its agent for the purpose of making
distributions #rom the Trust Funds. In this regard the terms and
conditions set forth in the Plan are to guide and control the Trustee's
power.
Section 2.4. Valuation of Trust Funds. AS least once a year as of
Valuation Dates designated by the Trustee, the Trustee shall determine
the value of the Trust Funds. Assets of the Trust Funds shalt be valued at
their market values at the close of business on the Valuation pate, or, in
the absence of readily ascertainable market values as the Trustee shall
determine, in accordance with methods consistently followed and
uniformly applied.
ARTICLE Ill. For Protection of Trustee.
Section 3.1. Evidence pf Action by Employee The Trustee may rely
upon any certificate, notice or direction purporting to have been signed
on behalf of the Employer which fhe trustee believes tv have been
signed by a duly designated official of the Employer. No communication
shalt be binding upon any of the Trust Funds or Trustee until they are
received by the Trustee.
Section 32. Advice of Counsel. The Trustee may consult Witt, any
legal counsel with respect to tha construction of this Agreement, its
duties hereunder, or any act, which it proposestotake oromit, and shall
not be liable for any action taken or omitted in good faith pursuant to
such advice.
Section 3.3. Miscellaneous. The Trustee shall use ordinary care and
reasonable diligence, but shall not be liable for any mistake of judgment
or other action to ken in good faith. The Trustee shall not be liable for any
loss sustained by the Trust Funds by reasons at any investment made in
good faith and in accordance with the provisions at this Agreement.
The Trustee's duties and obligations shall be limited to those
expressly imposed upon it by this Agreement.
ARTICLE IV. Taxes, Expenses and Compenaatfon of Trustee.
Section 4,1. Taxes. The Trustee shall deduct from and charge against
the Trust Funds any taxes on the Trust Funds or the income thereof or
which the Trustee is required to pay with respect to the interest of any
person therein.
Section 4.2. Expenses. The Trustee shalt deduct from and charge
against the Trust Funds ail reasonableexpenses incurred by the Trustee
in fhe administration of the Trust Funds, including counsel, agency,
investment advisory, and other necessary fees.
ARTICLE V. Setllemant of Accounts. The Trustee shat! keep accurate
end detailed accounts of alt investments, receipts, disbursements, and
other transactions hereunder.
Within ninety {90} days after the close of each fiscal year, the Trustee
ahalE render in duplicate to the Employer an account of its acts and
transactions as Trustee hereunder. If any paR of the Trust Fund shall be
invested through the medium of any common. collective or Commingled
Trust Funds, the last annual report of such Trust Funds shall be
submitted with and incorporated in the account.
If within ninety (g0) days after the mailing of the account or any
amended account the Employer has not filed with the Trustee notice of
any objection to any act or transaction of the Trustee, the account or
amended account shall become an account stated. If any objection has
been tiled, and ii the Employer is satisfied that it should be withdrawn or
ii the account is adjusted to the Employer's satisfaction, the l=mplayer
shalt in writing filed with the Trustee signifyappraval of the account and
it shall become an account stated.
When an account becomes an account stated, such account shall be
finally settled, and the Trustee shall be completely discharged and
released, as if such accounE had been settled and allowed by a judgment
or decree of a court of competent jurisdiction in an action or proceeding
in which the Trustee and the Employer were parties.
The Trustee shall have the righ! to apply at any time to a court of
competent jurisdiction for the judicial settlement of its account.
ARTICLE VI. Resignation and Removal of Trustee.
Section 6.1. Resignation of Trustee. The Trustee may resign at any
time by filing withthe Employer iiswritten resignation. Such resignation
shall take effect sixty (60}days from the date of such filing and upon
appointment of a successor pursuant to Section 6.3., whichever shall
first occur.
Section 6.2. Removal of Trustee. The Employer may remove the
Trustee at any time by delivering to the Trustee a written notice of its
removal and an appointment of a successor pursuant to Section 6.3.
Such removal shall not take effect prior to sixty (6D) days from such
delivery unless the Trustee agrees to an earlier effective date.
Section 6.3. Appointment of Successor Trustee. The appointment of
a successor to the Trustee shall take effect upon the delivery to the
Trustee of (a) an instrument in writing executed by the Employer
appointing such successor, and exonerating such successor from
liability for the acts and omissions of its predecessor, and (b) an
acceptance in writing, executed by such successor.
All of the provisions set forth herein with respect to the Trustee shall
relate to each successor with the same force and effect as if such
successor had been originally named as Trustee hereunder.
If a successor is not appoinIed with sixty (60J days after the Trustee
gives notice of its resignation pursuant to Section 6.1., the Trustee may
apply to any court of competent jurisdiction for appointment of a
successor.
Section 6.a, Transfer of Funds to Successor. Upon the resignation or
removal of the Trustee and appointment of a successor, and after the
final account of the Trustee has been properly settled, the Trustee shalt
transfer and deliver any of the Trust Funds involved to such successor.
ARTICLE Vli. buration and Revocation of Trust Agreement.
Section 7.1. Duration and Revocation. This Trust shall continue for
such time as may be necessary to accomplish the purpose for which it
was created but may be terminated or revoked at any time by the
Employer as it relates to any and/or all related participating Employees.
Written notice of such termination or revocation shall be given to She
Trustee by the Employer. Upon termination or revocation of the Trust,
all of the assets thereof shall return to and revert to the Employer.
Termination of this Trust shall not, however, relieve the Emplayerofthe
Employer's continuing obligation to pay deferred compensation to
Employees in accordance with the terms of the Plan.
Section 7.2. Amendment. The Empioyershall have the right to amend
this Agreement in whole and in part but only with the Trustee's written
consent. Any such amendment shalt become effective upon (a) delivery
t4 the Trustee of a written instrument of amendment, and (b} the
endorsement by the Trustee vn such instrument at its consent thereto.
ARTICLE Vill. Miscellaneous.
Section 8.1. Laws of the District of Columbia to Govern. This
Agreement and the Trust hereby created shall be construed and
regulated by the taws of the District of Colurrtbia.
Section t3.2. Successor Employers. The "Employer" shall include any
person who succeeds the Employer and who thereby becomes subject
to the obligations of the Employer under the Plan.
Section 8.3. Withdrawals. The Employer may, at any time, and from
time to time, withdraw a portion or alt of Trust Funds created by this
Agreement.
Section $.a. Gender and Number. The masculine includes the
feminine and the Singular includes the plural unless the Context requires
another meaning.