TC Res. No. 1991-08RESOLUTION NO. 91-8
SERIES OF 1991
A RESOLUTION OF THE TOWN OF AVON TO PROVIDE A DEFERRED
COMPENSATION PLAN FOR THE EMPLOYEES OF THE TOWN.
WHEREAS, the Town of Avon has employees rendering valuable
services; and
WHEREAS, the establishment.of a deferred compensation plan for
such employees serves the interests of the Town 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 Town has determined that the establishment of a
deferred compensation plan to be administered by the ICMA
Retirement Corporation serves the above objectives; and
WHEREAS, the Town desires that the investment of funds held
under its deferred compensation plan be administered by the,ICMA
Retirement Corporation, and that such funds-beheld by the ICMA
Retirement Trust, a trust established by public employers for the
collective investment of funds held under their deferred
compensation plans and money purchase retirement plans;
NOW THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, COLORADO:
Section 1. That the Town hereby adopts the deferred compensation
plan attached hereto as Appendix A and appoints the ICMA
Retirement,Corporation to serve as Administrator thereunder; and
Section 2. That the Town hereby executes the Declaration of Trust
of the ICMA Retirement Trust, attached hereto as Appendix B.
Section 3. That the Town Manager or his designate shall be the
coordinator for this program and shall receive necessary reports,
notices, etc. from the ICMA Retirement Corporation or the ICMA
Retirement-Trust, and shall cast, on behalf of the Town any
required votes under the program. Administrative duties to carry
out the plan may be assigned to the appropriate departments.
ADOPTED this 9th day of April, 1991.
TOWN OF AVON, COLORADO
n - 0) 1 . - ( n, 'I-IL-1
Jerry Davis ayor
TO: BILL JAMES, TOWN MANAGER
FROM: LIZ ADAMS, FINANCE OFFICER
RE: RESOLUTION 91-8
DATE: APRIL 3, 1991
Attached is a resolution to adopt the ICMA deferred
compensation plan. Adoption of this resolution will allow us
to terminate our relationship with Nexus Financial Programs and
transfer all deferred compensation funds to ICMA. Changing to
ICMA will result in greater portability of the retirement
accounts, use of more appropriate investment vehicles and more
consistent reporting.
RECOMMENDATION: Approve Resolution 91-8
erre,
ensation
TOWN
ONOF
AVON
(EMPLOYER)
PPENDIXA
10/89
DEFERRED COMPENSATION PLAN
OF AVON csmpwyen
ARTICLE 1. INTRODUCTION
The Employer hereby establishes the Employer's Deferred
Compensation Plan, hereinafter referred to as the "Plan."
The Plan consists of the provisions set forth in this document.
The primary purpose of this Plan is to provide retirement
income and other deferred benefits to the Employees of the
Employer in accordance with the provisions of Section 457 of
the Internal Revenue Code of 1986, as amended (the "Code').
This Plan shall be an agreement solely between the
Employer and participating Employees.
ARTICLE II. DEFINITIONS
Section 2.01 Account: The bookkeeping account
maintained for each Participant reflecting the cu-
mulative amount of the Participant's Deferred Com-
pensation, including any income, gains, losses, or
increases or decreases in market value attributable
to the Employer's investment of the Participant's
Deferred Compensation, and further reflecting any
distributions to the Participant or the Participanrs
Beneficiary and any fees or expenses charged
against such Participant's Deferred Compensation.
Section 2.02 Administrator: The person or persons
named to carry out certain nondiscretionary ad-
ministrative functions underthe Plan, as hereinafter
described. The Employer may remove any person
as Administrator upon 60 days' advance notice in
writing to such person, in which case the Employer
shall name another person or persons to act as
Administrator. The Administrator may resign upon
60 days' advance notice in writing to the Employer,
in which case the Employer shall name another
person or persons to act as Administrator.
Section 2.03 Beneficiary: The person or persons desig-
nated by the Participant in his Joinder Agreement
who shall receive any benefits payable hereunder in
the event of the Participant's death. In the event that
the Participant names two or more Beneficiaries,
each Beneficiary shall be entitled to equal shares of
the benefits payable at the Participant's death, un-
less otherwise provided in the Participant's Joinder
Agreement. If no beneficiary is designated in the
Joinder Agreement, I the Designated Beneficiary
predeceases the Participant, or if the designated
Beneficiary does not survive the Participant for a
period of fifteen (15) days, then the estate of the
Participant shall be the Beneficiary.
Section 204 Deferred Compensation: The amount of
Normal Compensation otherwise payable to the
Participant which the Participant and the Employer
mutually agree to defer hereunder, any amount
credited to a Participant's Account by reason of a
transfer under section 6.03, or any other amount
which the Employeragrees to creditto a Participant's
Account
Section 2.05 Employee: Any individual who provides
services for the Employer, whether as an employee
of the Employer or as an independent contractor,
and who has been designated by the Employer as
eligible to participate in the Plan.
Section 2.06 Includible Compensation: The amount of
an Employee's compensation from the Employerfor
a taxable year that is attributable to services per-
formed for the Employer and that is includible in the
Employee's gross income for the taxable year for
federal income tax purposes; such term does not
include any amount excludable from gross income
under this Plan or any other plan described in
Section 457(b) of the Code or any other amount
excludable from gross income forfederal income tax
purposes. Includible Compensation shall be deter-
mined without regard to any community property
laws.
Section 2.07 Joinder Agreement: An agreement en-
tered into between an Employee and the Employer,
including any amendments or modificationsthereof.
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 Beneficia-
ries, and incorporate the terms, conditions, and
provisions of the Plan by reference.
Section 2-08 Normal Compensation: The amount of
compensation which would be payable to a Partici-
pant by the Employer for a taxable year if no Joinder
Agreement were in effect to defer compensation
under this Plan.
Section 2.09 Normal Retirement Age: Age 70-1J2, un-
less the Participant has elected an alternate Normal
Retirement Age by written instrument delivered to
the Administrator prior to Separation from Service.
A Participant's Normal Retirement Age determines
the period during which a Participant may utilize the
catch-up GmkWion of Section 5.02 hereunder. Once
a Participant has to any extent utilized the catch-up
limitation of Section 5.02, his Normal Retirement
age may not be changed.
A Participant's alternate Normal Retirement Age
may not be earlier than the earliest date that the
Participant will become eligible to retire and receive
unreduced retirement benefits underthe Employer's
basic retirement plan covering the Participant and
may not be later than the date the Participant will
attain age 70-1/2. If a Participant continues employ-
ment after attaining age 70-12, not having previ-
ously elected an alternate Normal Retirement Age,
the Participant's alternate Normal Retirement Age
shall not be laterthan the mandatory retirement age,
if any, established by the Employer, or the age at
which the Participant actually separates from ser-
vice if the Employer has no mandatory retirement
age. 9 the Participant will not become eligible to
receive benefits under a basic retirement plan
maintained by the Employer, the Participant's after-
nate Normal Retirement Age may not be earGerthan
age 55 and may not be later than age 70-12.
Section 2.10 Participant: Any Employee who has joined
the Plan pursuant to the requirements of Article IV.
e
Section 2.11 Plan Year: The calendar year.
Section 2.12 Retirement: The first date upon which both
of the following shall have occurred with respect to
a participant: Separation from Service and attain-
ment of age 65.
Section 2.13 Separation from Service: Severance of
the Participant's employment with the Employer
which constitutes a "separation from service"within
the meaning of Section 402(e)(4)(A)("n) of the Code.
In general, a Participant shall be deemed to have
severed his employment with the Employer for pur-
poses of this Plan when, in accordance with the
established practices of the Employer, the employ-
ment relationship is considered to have actually
terminated In the case of a Participant who is an
independent contractor of the Employer, Separation
from Service shall be deemed to have occurred
when the Participant's contract under which ser-
vices are performed has completely expired and
terminated, there is no foreseeable possibility that
the Employer will renew the contract or enter into a
new contract for the Participant's services, and it is
not anticipated that the Participant will become an
Employee of the Employer.
ARTICLE HL ADMINISTRATION
Section 3.01 Duties of Employer: The Employer shall
have the authorityto make all discretionary decisions
affecting the rights or benefits of Participants which
may be required in the administration of this Plan.
Section 3.02 Duties of Administrator: The Adminis-
trator, as agent for the Employer, shall perform
nondiscretionary administrative functions in con-
nection 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.
ARTICLE IV. PARTICIPATION IN THE PLAN
Section 4.01 Initial Participation: An Employee may
become a Participant by entering into a Joinder
Agreement prior to the beginning of the calendar
month in which the Joinder Agreement is to become
effective to defer compensation not yet earned.
Section 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
restrictions as may result from the nature or terms of
any investment made by the Employer). Such
amendment shall become effective as of the begin-
ning of the calendar month commencing after the
date the amendment is executed. A Participant may
at any time amend his Joinder Agreementto change
the designated Beneficiary, and such amendment
shall become effective immediately.
ARTICLE V. LIMITATIONS ON DEFERRALS
Section 5.01 Normal Limitation: Except as provided in
section 5.02. the maximum amount of Deferred
Compensation for any Participant for any taxable
year shall not exceed the lesser of $7,500.00 or 33-
113 percent of the Participants Includible Compen-
sation for the taxable year. This limitation will ordi-
narily be equivalent to the lesser of $7,500.00 or 25
percent of the Participant's Normal Compensation.
Section 5.02 Catch-Up Limitation: For each of the last
three (3) taxable years of a Participant ending be-
fore his attainment of Normal Retirement Age, the
maximum amount of Deferred Compensation shall
be the lesser of: (1) $15,000 or (2) the sum of (i) the
Normal Limitation for the taxable year, and (n the
Normal Limitation for each prior taxable year of the
Participant commencing after 1978 less the amount
of the Participant's Deferred Compensation for such
prior taxable years. A prior taxable year shall be
taken into account under the preceding sentence
only if ()i the Participant was eligible to participate in
the Plan for such year (or in any other eligible
deferred compensation plan established under
Section 457 of the Code which is properly taken into
account pursuant to regulations under section 457),
and (u) compensation (if any) deferred under the
Plan (or such other plan) was subject to the deferral
limitations set forth in Section 5.01.
Section 5.03 Other Plans: The amount excludable from
a Participant's gross income under this Plan or any
other eligible deferred compensation plan under
section 457 of the Code shall not exceed $7,500.00
(or such greater amount allowed under Section 5.02
of the Plan), less any amount excluded from gross
income under section 403(b), 402(a)(8), or 402
(h)(1)(B) of the Code, or any amount with respect to
which a deduction is allowable by reason of a
contribution to an organization described in section
501(c)(18) of the Code.
ARTICLE VL INVESTMENTS AND ACCOUNT VALUES
Section 6.01 Investment of Deferred Compensation:
All investments of Participant's Deferred Compen-
sation made by the Employer, including all property
and rights purchased with, such amounts and all
income attributable thereto, shall be the sole prop-
erty of the Employer and shall not be held in trust for
Participants or as collateral security forthe fulfillment
of the Employer's obligations under the Plan. Such
property shall be subject to the claims of general
creditors of the Employer, and no Participant or
Beneficiary shall have any vested'mterest orsecured
or preferred position with respect to such property or
have any claim against the Employer except as a
general creditor.
Section 6.02 Crediting of Accounts: The Participanrs
Account shall reflect the amount and value of the
investments or other property obtained by the Em-
ployer through the investment of the Parficpnants
Deferred Compensation. it is anticipated that the
Employer's investments with respect to a Partici-
pant will conform to the investment preference
specified in the Parficipanfs Joinder Agreement,
but nothing herein shall be construed to require the
Employer to make any particular investment of a
Participant's Deferred Compensation. Each Partici-
pant shall receive periodic reports, not lessfrequently
than annually, showing the then-current value of his
Account.
Section 6.03 Transfers: (a) incoming Transfers: A
transfer may be accepted from an eligible deferred
compensation plan maintained by another employer
and credited to a Participant's Account under the
Plan I (i) the Participant has separated from service
with that employer and become an Employee of the
Employer, and (i7 the other employer's plan pro-
vides that such transfer will be made. The Employer
may require such documentation from the prede-
cessor plan as it deems necessary to effectuate the
transfer, to confirm that such plan is an eligible
deferred compensation plan within the meaning of
Section 457 of the Code, and to assure thattransfers
are provided for under such plan. The Employer
may refuse to accept a transfer in the form of assets
other than cash, unless the Employer and the
Administrator agree to hold such other assets under
the Plan. Any such transferred amount shall not be
treated as a deferral subject to the limitations of
Article V. except that, for purposes of applying the
limitations of Sections 5.01 and 5.02, an amount
deferred during any taxable year under the plan
from which the transfer is accepted shall be treated
as if it has been deferred underthis Plan during such
taxable year and compensation paid by the transferor
employershall betreated as if it had been paid bythe
Employer.
(b) Outgoing Transfers: An amount may be trans-
ferred to an eligible deferred compensation plan
maintained by another employer, and charged to a
Participant's Account under this Plan, if (i) the Par-
ticipant has separated from service with the Em-
ployer and become an employee of the other em-
ployer, (r) the other employer's plan provides that
such transfer will be accepted, and (iii) the Partici-
pant and the employers have signed such agree-
ments as are necessaryto assure thatthe Employer's
liability to pay benefits to the Participant has been
discharged and assumed by the other employer.
The Employer may require such documentation
from the other plan as it deems necessary to effec-
tuate the transfer, to confirm that such plan is an
eligible deferred compensation plan within the
meaning of section 457 of the Code, and to assure
that transfers are provided for under such plan.
Such transfers shall be made only under such
circumstances as are permitted under section 457
of the Code and the regulations thereunder.
Section 6.04 Employer Liability: In no event shall the
Employer's liability to pay benefits to a Participant
under Article A exceed the value of the amounts
credited to the Participant's Account; the Employer
shall not be liable for losses arising from deprecia-
tion or shrinkage in the value of any investments
acquired under this Plan.
ARTICLE VII. BENEFITS
Section 7.01 Retirement Benefits and Election on
Separation from Service: Except as otherwise
provided in this Article VII, the distribution of a
Participant's Account shall commence as of April 1
of the calendar year after the Plan Year of the
Participant's Retirement, and the distribution of such
Retirement benefits shall be made in accordance
with one of the payment options described in Sec-
tion 7.02. Notwithstanding the foregoing, the Partici-
pantmay irrevocably elect within 60 days following
Separation from Service to have the distribution of
benefits commence on a foxed or determinable date
other than that described in the preceding sentence
which is at least 60 days after the date such election
is delivered in writing to the Employer and forwarded
to the Administrator, but not later than April 1 of the
year following the year of the Participant's Retire-
ment or attainment of age 70-1 /2, whichever is later.
Section 7.02 Payment Options: As provided in Sections
7.01, 7.04, and 7.05, a Participant or Beneficiary
may elect to have the value of the Participant's
Account distributed in accordance with one of the
following payment options, provided that such op-
tion is consistent with the limitations set forth in
Section 7.03:
(a) Equal monthly, quarterly, semi-annual or annual
payments in an amount chosen bythe 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) Annual Payments equal to the minimum
distributions required under Section 401(a)(9) of
the Code over the fife expectancy of the
Participant or over the Ide expectancies of the
Participant and his Beneficiary.
(e) Payments equalto payments madebythe issuer
of a retirement annuity policy acquired by the
Employer.
(f) Any other payment option elected by the
Participant and agreed to by the Employer and
Administrator, provided that such option must
provide forsubstantially noninc ceasing payments
for any period after the latest benefit
commencement date under Section 7.01.
A Participant's or Beneficiary's election of a
payment option must be made at least 30 days
before the payment of benefits is to commence.
If a Participant or Beneficiary 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.
Section 7.03 Limitation on Options: No payment option
may be selected by a Participant or Beneficiary
under Sections 7.02, 7.04, or 7.05 unless it satisfies
the requirements of Sections 401(a)(9) and 457(d)(2)
of the Code, including that payments commencing
before the death of the Participant shall satisfy the
incidental death benefits requirement underSection
457(d)(2)(Bj()(I). Unless otherwise elected by the
Participant, all determinations under Section
401(a)(9) shall be made without recalculation of life
expectancies.
Section 7.04 Rost-retirement Death Benefits: (a) Should
the Participant die after he has begun to receive
benefits under a payment option, the remaining
payments, if any, underthe payment option shall be
payable to the Participanrs Beneficiary commenc-
ing within the 30-day period commencing with the
61 st day after the Participant's death, unless the
Beneficiary elects payment under a different pay-
ment option that is available under Section 7.02
within 60 days of the Participant's death. Any different
payment option elected by a Beneficiary under-this
section must provide fo"r payments at a rate that is at
least as rapid as under the payment option that was
applicable to the Participant. In no event shall the
EmployerorAdministrator be liable lathe Beneficiary
for the amount of any payment made in the name of
the Participant before the Administrator receives
proof of death of the Participant.
(b) If the designated Beneficiary does not continue
to live for the remaining period of payments under
the payment option, then the commuted value of any
remaining payments underthe payment option shall
be paid in a lump sum to the estate of the Benefi-
ciary. In the event that the Participant's estate is the
Beneficiary, the commuted value of any remaining
payments under the payment option shall be paid to
the estate in a lump sum.
Section 7.05 Pre-retirement Death Benefits: (a) Should
the Participant die before he has begun to receive
the benefits provided by Section 7.01, the value of
the Participant's Account shall be payable to the
Beneficiary commencing within the 30-day period
commencing on the 91st day after the Participant's
death, unless the Beneficiary irrevocably elects a
different foxed or determinable benefit commence-
ment date within 90 days.of the Participant's death.
Such benefit commencement date shall be not later
than the laterof (i) December3l of the yearfollowing
the year of the Participant's death, or (ii) I the
Beneficiary is the Participant's spouse, December
31 of the year in which the Participant would have
attained age 70-1/2.
(b) Unless a Beneficiary elects a different payment
option prior to the benefit commencement date,
death benefits under this Section shall be paid in
approximately equal annual installments over five
years, or over such shorter period as may be neces-
sary to assure that the amount of any annual install-
ment is not less than $3,500. A Beneficiary shall be
treated as N he were a Participant for purposes of
determining the payment options available under
Section 7.02, provided, however, that the payment
option chosen by the Beneficiary must provide for
payments to the Beneficiary over a period no longer
than the fife expectancy of the Beneficiary, and
provided that such period may not exceed fifteen
(15) years if the Beneficiary is not the Participant's
spouse.
(c) In the event that the Beneficiary dies before the
payment of death benefits has commenced or been
completed, the remaining value of the Participant's
Account shall be paid to the estate of the Beneficiary
in a lump sum. In the event that the Participant's
estate is the Beneficiary, payment shall be made to
the estate in a lump sum.
Section 7.06 Unforeseeable Emergencies: (a) In the
event an unforeseeable emergency occurs, a Par-
ticipant 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 Partici-
pant shall be paid only such amount as the Employer
deems necessary to meet the emergency need, but
payment shag not be made to the extent that the
financial hardship may be relieved through cessa-
tion of deferral under the Plan, insurance or other
reimbursement, or liquidation of other assets to the
extent such liquidation would not itself cause severe
financial hardship.
(b) An unforeseeable emergency shall be deemed
to involve only circumstances of severe financial
hardship to the Participant resulting from a sudden
unexpected illness, accident, or disabigty of the
Participant or of a dependent (as defined in Section
152(a) of the Code) of the Participant, loss of the
Participanrs property due to casualty, or other simi-
lar and extraordinary unforeseeable circumstances
arising as a result of events beyond the control of the
Participant. The need to send a Participant's child to
college or to purchase a new home shall not be
considered unforeseeable emergencies. The deter-
mination as to whether such an unforeseeable
emergency exists shall be based on the merits of
each individual case.
Section 7.07 Transitional Rule for Pre-1989 Benefit
Elections: In the eventthat, priorto January 1 1989,
a Participant or Beneficiary has commenced re-
ceiving benefits under a payment option or has
irrevocably, elected a payment option or benefit
commencement date, then that payment option or
election shall remain in effect notwithstanding any
other provision of this Plan.
ARTICLE VEIL NON-ASSIGNABILITY
Section 8.01 In General: Except as provided in Section
8.02, no Participant or Beneficiary shall have any
right to commute, sell, assign, pledge, transfer or
otherwise convey or encumber the right to receive
any payments hereunder, which payments and rights
are expressly declared to be non-assignable and
non-transferable.
Section 8.02 Domestic Relations Orders: (a) Allow-
ance of Transfers: To the extent required under a
final judgment, decree, or order (including approval
of a property settlement agreement) made pursuant
to a state domestic relations law, any portion of a
Participant's Account may be paid or set aside for
payment to a spouse, former spouse, or child of the
Participant. Where necessary to carry out the terms
of such an order, a separate Account shag be
established with respect to the spouse, former
spouse, or child who shall be entitled to make
investment selections with respect thereto in the
same manner as the Participant; any amount so set
aside for a spouse, former spouse, or child shall, be
paid out in a lump sum at the earliest date that
benefits may be paid to the Participant, unless the
order directs a different time or form of payment.
Nothing in this Section shall be construed to autho-
rize any amount to be distributed under the Plan at
atime or in aform that is not permitted underSecdon
457 of the Code. Any payment made to a person
other than the. Participant pursuant to this Section
shall be reduced by required income tax withhold-
ing; the fact that payment is made to a person other
than the Participant may not prevent such payment
from being includible in the gross income of the
Participant forwithholding and income tax reporting
purposes.
(b) Release from Liability to Participant: The
Employer's liability to pay benefits to a Participant
shall be reduced to the extent that amounts have
been paid or set aside for payment to a spouse,
former spo use, or child pursuant to paragraph '(a) of
this Section. No such transfer shall be effectuated
unless the Employer or Administrator has been
provided with 'satisfactory evidence that the Em-
ployer and the Administrator are released from any
further claim by the Participant with respect to such
amounts. The Participant shall be deemed to have
released the Employer and the Administrator from
any claim with respectto such amounts, in anycase
in which (i) the Employer or Administrator has been
served with legal process or otherwise joined in a
proceeding relating to such transfer, (u the Partici-
pant has been noted of the pendency of such
proceeding in the manner prescribed by the law of
the jurisdiction in which the proceeding is pending,
for service of process in such action or by maid from
the Employer or Administrator to the Participant's
last known mailing address, and (M) the Participant
fails to obtain an order of the courtin the proceeding
relieving the Employer or Administrator from the
obligation to comply with the judgment, decree, or
order.
(c) Participation in Legal Proceedings: The Em-
ployer and Administrator shall not be obligated to
defend against or set aside any judgment, decree,
or order described in paragraph (a) or any legal
order relating to the garnishment of a Participants
benefits, unless the full expense of such legal action
is borne by the Participant. In the event that the
Participant's action (or inaction) nonetheless causes
the EmployerorAdministratorto incur such expense,
the amount of the expense may be charged against
the Participant's Account and thereby reduce the
Employer's obligation to pay benefits to the Partici-
pant. In the course of any proceeding relating to
divorce, separation, or child support, the Employer
and Administrator shall be authorized to disclose
information relating to the Participant's Account to
the Participants spouse, former spouse, or child
(including the legal representatives of the spouse,
former spouse, or child), or to a court.
ARTICLE IX. RELATIONSHIP TO OTHER PLANS AND
EMPLOVUENT AGREEMENTS
This plan serves in addition to any other retirement,
pension, or benefit plan or system presently in existence or
hereinafter established for the benefit of the Employers
employees, and participation hereunder shall not' affect
benefits receivable under 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 Em-
ployer.
ARTICLE X. AMENDMENT OR TERN9NATION OF PLAN
The Employer may at any time amend this Plan provided
that ittransmits such amendment in writing to the Administra-
tor at least 30 days prior to the effective date of the amend-
ment. 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 amend-
ment. The Employer may at any time terminate this Plan.
The Administrator may at any time propose an amend-
ment to the Plan by an instrument in writing transmitted to the
Employer at least 30 days before the effective date of the
amendment. Such amendment shall become effective un-
less, within such 30-day period, the Employer notifies the
Administrator in writing that it disapproves such amendment,
in which case such amendment shag not become effective.
In the event of such disapproval, the Administrator shall be
under no obligation to continue acting as Administrator
hereunder. If this Plan document constitutes an amendment
and restatement of the Plan as previously adopted by the
Employer, the amendments contained herein shall become
effective on January 1, 1989, and the terms of the preceding
Plan document shall remain in effect through December 31,
1988.
Except as may be required to maintain the status of the
Plan as an eligible deferred compensation plan underSecdon
457 of the Code or to comply with other applicable laws, no
amendment or termination of the Plan shall divest any
Participant of any rights with respect to compensation de-
ferred before the date of the amendment or termination.
ARTICLE XL APPLICABLE LAW
This Plan shall be construed under the laws of the state
where the Employer is located and is established with the
intent that it most the requirements of an 'eligible deferred
compensation plan" under Section 457 of the Code, as
amended. The provisions of this Plan shall be interpreted
wherever possible in conformity with the requirements of that
section.
ARTICLE XU. GENDER AND NUMBER
The masculine pronoun, whenever used herein, shall
include the feminine pronoun, and the singular shall in
the plural, except where the context requires otherwise.
DECLARATION OF TRUST
OF ICMA RETIREMENT CORPORATION
ARTICLE L NAME DEFINITIONS
Section 1.1 Name: The Name of the Trust, as amended and
restated 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) Bylaws. The bylaws referred to in Section 4.1
hereof, as amended from time to time.
(b) Deferred Compensation Plan. A deferred
compensation plan established and maintained by
a Public Employer for the purpose of providing
retirement income and other deferred benefits to
its employees in accordance with the provision of
section 457 of the Internal Revenue Code of 1954,
as amended.
(c) Employees. Those employees who participate in
Qualified Plans.
(d) Employer Trust. A trust created pursuant to
an agreement between RC and a Public Employer
for the purpose of investing and administering the
funds set aside by such Employer in connection
with its Deferred Compensation agreements with
its employees or in connection with its Qualified
Plan.
(e) Guaranteed Investment Contract. A contract
entered into bythe RetirementTnustwith insurance
companies that provides for a guaranteed rate of
return on investments made pursuant to such
contract
(f) ICMA. The International City Management
Association.
(g) ICMA/RC Trustees. Those Trustees elected by
the Public Employers who, in accordance with the
provisions of Section 3.1(a) hereof, are also
members, or former members, of the Board of
Directors of ICMA or RC.
(h) InvestmentAdviser. The Investment Adviserthat
enters into a contract with the Retirement Trust to
(o) Retirement Trust. The Trust created by the
Declaration of Trust
(p) Trust Property. The amounts held in the
Retirement Trust on behalf of the Public
Employers in connection with Deferred
Compensation Plans and on behalf of the Public
Employer Trustees for the, exclusive benefit of
EmployeespursuanttoQuardied Plans. TheTrust
Property shall include any income resulting from
the investment to the amounts so held.
(q) Trustees. The Public Employee Trustees and
ICMA/RCTrustees elected bythe PublicEmployers
to serve as members of the Board of Trustees of
the Retirement Trust.
ARTICLE IL 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 Public Employers.
Section 2.2 Purpose: The purpose of the Retirement Trust .
is to provide for the commingled investment of funds
held by,the Public Employers in connection with their
Deferred Compensation and Qualified Plans. The
Trust Property shall be invested in the Portfolios, in
Guaranteed Investment Contracts, and in other in-
vestments recommended by the investment Adviser
under the supervision of the Board of Trustees. No
part of the Trust Property will be invested in securities
issued by Public Employers.
Section 2.3 Ownership of Trust Property: The Trustees
shall have legal title to the Trust Property. The Public
Employers shall be the beneficial owners,of the por-
tion of the Trust Property allocable to the Deferred
Compensation Plans. The portion of the Trust Prop-
erty allocable to the Qualified Plans shall be held for
the Public Employer Trustees forthe exclusive benefit
of the Employees.
ARTICLE UL TRUSTEES
Provide advice with respect to investment of the
Trust Property.
(i) Portfolios. The Portfolios of investmentestablished
by the Investment Adviser to the Retirement Trust,
under the supervision of the Trustees, for the
purpose of providing investments for the Trust
Property.
(D Public Employee Trustees. Those Trustees
elected bythe Public Employers who, in accordance
with the provision of Section 3.1(a) hereof, are full-
time employees of Public Employers.
(k) Public Employer Trustees. PubliicEmployers who
serve as trustees of the Qualified Plans.
(I) Public Employer. A unit of state or local
government, or any agency or instrumentality
thereof, that has adopted a Deferred Compensation
Plan or a Qualified Plan and has executed this
Declaration of Trust
(m) Qualified Plan. A plan sponsored by a Public
Employer for the purpose of providing retirement
income to its employees which satisfies the
qualification requirements of Section 401 of the
Internal Revenue Code, as amended.
(n) RC. The International City Management
Association Retirement Corporation.
Section 3.1 Number and Qualification of Trustees:
(a)The Board of Trustees shall consist of nine Trust-
ees. Five of the Trustees shall be full-time employees
of a Public Employer (the Public Employee Trustees)
who are authorized ,by such Public Employerto serve
as Trustee. The remaining four Trustees shall consist
of two persons who, at the time of election to the Board
of Trustees, are members of the Board of Directors of
ICMA and two persons who, atthe time of election. are
members of the Board of Directors of RC (the ICMA/
RC Trustees. One of the Trustees who is a director of
ICMA, and one of the Trustees who is a director of RC,
shall, at the time of election, be full-time employees of
a Public Employer.
(b) No person may serve as a Trustee for more than
one term in any ten-year period.
Section 3.2 Election and Term: (a) Except for the Trust-
ees appointed to fill vacancies pursuant to Section 3.5
hereof, the Trustees shall be elected by a vote of a
majority of the Public Employers in accordance with
the procedures setforth inthe By-Laws. (b) Atthefirst
election of Trustees, three Trustees shall be elected,
for a term of three years, three Trustees shall be
elected for a term of two years and three Trustees
shall be elected for a term 9f one . year. At each
subsequent election, three Trustees shall be elected
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r
for a term of three years and until his or her successor
(d) invest and, reinvest the Trust Property in the
is elected and qualified.
Portfolios, the Guaranteed Interest Contracts and
Section 3.3 Nominations: The Trustees who are full-time
in any other investment recommended by the
but not including securities
Investment Adviser
employees of Public Employers shall serve as the
Nominating Committee for the Public Employee
Committee shall choose
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tin
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,
issued by Public Employers, provided thati I a
Public Employer has directed that its monies be
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na
rustees.
candidates for Public Employee Trustees in accor-
dance with the procedures set forth in the By-Laws.
invested in specified Portfolios or in aGuaranteed
Investment Contract, the Trustees of the
Section 3.4 Resignation and Removal: • a An Trustee
Y
Retirement Trust shall invest such monies in
accordance with such directions;
may resign as Trustee (without need for prior or
subsequent accounting) by an instrument in writing
(e) keep such portion of the Trust Property in cash or
•
signed by the Trustee and delivered to the other
Trustees and such resignation shall be effective upon
cash balances as the Trustees, from time to time,
may deem to be in the best interest of the
`
such delivery, or at a later date according to the terms
foRtrement e interest Trust created hereby without liability
thereon;
of the instrument. Any of the Trustees may be re-
moved for cause, by a vote of a majority of the Public
(f) accept and retain for such time as they may deem
Employers. (b) Each Public Employee Trustee shall
advisable any securities orotherproperty received
r
resign his or her position as Trustee within sixty days
or acquired by them as Trustees hereunder,
of the date on which he or she ceases to be a full-time
whether or not such securities or other property
employee of a Public Employer.
would normally be purchased as investment
Section 3.5 Vacancies: The term of office of a Trustee
hereunder;
shall terminate and a vacancy shall occur in the event
di
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d
(g) cause any securities or other property held as part
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of the death, resignation, remova
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roperty to
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the
petence or other incapacity to perform the duties of the
of the Retirement Trust or in the nam a of a nominee.
office of a Trustee. In t e case of a vacancy, the
and to hold any investments in bearerfrom, butthe
remaining Trustees shall appoint such person as they
books and records of the Trustees shall at alltimes
in theirdiscretion shall see f'd (subject to the limitations
show that all such investments are a part of the
set forth in this Section), to serve for the unexpired
Trust Property;
portion of the term of the Trustee who has resigned or
(h) make, execute, acknowledge, and deliver any and'
otherwise ceased to be a Trustee. The appointment
all documents of transfer and conveyance and any
shall be made by a written instrument signed by a
and all other instruments that maybe necessaryor
majority of the Trustees. The person appointed must
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appropriateto carry outthepowers herein granted;
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Trustee or ICMA/RC Trustee) as the person who has
(i) vote upon any stock, bonds, or other securities;
ceased to be a Trustee. An appointment of a Trustee
may be made in anticipation of a vacancy to occur at
gNegeneral orspecialproxiesorpowersofattomey
With or without power of substitution;exerese any
a later date by reason of retirement or resignation,
conversion privileges, subscription rights, or other
options
andmakeanypayments incidentaithereto;
provided that such appointment shall not become
effective prior to such retirement or resignation.
,
oppose, or consent to, or otherwise participate in,
Whenever a vacancy in the number of Trustees shag
occur, until such vacancy is filled as provided in this
corporate reorganizations or to other changes
affecting corporate securities, and delegate
Section 3.5, the Trustees in office, regardless of their
number, shall have all the powers granted to the
discretionary powers and pay any assessmentsor
charges in connection therewith; and generally
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h
Trustees and shall discharge all the duties imposed
exerc
se any o
e powers o
an owner w
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t
upon the Trustees by this Declaration. A written
respect to stocks, bonds, securities or other
instrument certifying the existence of such vacancy
property held as part of the Trust Property;
signed by a majority of the Trustees shall be conclu-
(D enter into contracts or arrangements for goods or
sive evidence of the existence of such vacancy.
services required in connection with the operation
Section 3.6Trustees Serve In Representative Capacity:
of the Retirement Trust, including, but not gmited
By executing this Declaration, each Public Employer
agrees that the Publ'~c Employee Trustees elected by
to, contracts with custodians and contracts forthe
provision of administrative services;
the Public Employers are authorized to act as agents
(k) borrow or raise money for the purposes of the
and representatives of the Public Employers collec-
Retirement Trust in such amount, and upon such
lively.
terms and conditions, as the Trustees shall deem
ARTICLE N. POWERS OF TRUSTEES
advisable, provided that the aggregate amount of
such borrowings shall not exceed 30% of the
Section 4.1 General Powers: The Trustees shall have the
value of the Trust Property. No person lending
powertoconduct thebusiness oftheTrust andtocarry
on its operations. Such power shall include, but shall
money to the Trustees shat be bound to seethe
application of the money lent or to inquire into its
not be limited to, the power to:
validity, expediency or propriety or any such
(a) receive the Trust Property from the Public
borrowing;
Employers, Public Employer Trustees or other
incur reasonable expenses as required for the
Trustee of any Employer Trust;
operationofthe Retirement Trust and deductsuch
(b) enter into a contract with an Investment Adviser
expenses from of the Trust Property;
providing, among other things, for the
(m) ay expenses properly allocable to the Trust
establishment and operation of the Portfolios,
Property incurred in connection with the Deferred
selection of the Guaranteed Investment Contracts
Compensation Plans, Qualified Plans, or the
in which the Trust Property may be invested,
Employer Trusts and deduct such expenses from
selection of the other investments for the Trust
the portion of the Trust Property to whom such
Proferty and the payment of reasonable fees to
expenses are properly allocable;
the nvestment Adviser and to any sub4nvestment
(n) pay out of the Trust Property ail real and personal
adviser retained by the Investment Adviser;
property taxes, income taxes and other taxes of
(c) review annuallythe performance of the Investment
any and all kinds which, in the opinion of the
Adviser and approve annually the contract with
Trustees, are properly levied, or assessed under
such Investment Adviser,
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 bylaws, provided
that such bylaws are at all times consistent with
the terms of this Declaration of Trust;
(p) employ persons to make available interests in the
Retirement Trust to employers eiigble to maintain
a Deferred Compensation Plan under Section 457
or a Qualified Plan under Section 401 of the
Internal Revenue Code, as amended;
(q) issue the Annual Report of the Retirement Trust,
and the disclosure documents and other literature
used by the Retirement Trust;
(r) make loans, including the purchase of debt
obligations, provided that all such loans shall bear
interest at the current market rate;
(s) contract for, and delegate any powers granted
hereunder to, such officers, agents, employees,
auditors and attorneys as the Trustees may select,
provided that the Trustees may not delegate the
powers set forth in paragraphs (b), (c) and (o) of
this Section 4.1 and may not delegate any powers
N such delegation would violate their fiduciary
duties;
(t) mvide for the indemnification of the Officers and
Trustees of the Retirement Trust and purchase
fiduciary insurance; -
(u) maintain books and records, including separate
accounts for each Public Employer, Public
Employer Trustee or Employer Trust and such
additional separate accounts as are required under,
and consistent with, the Deferred Compensation
or Qualified plan of each Public Employer; and
(v) do all such acts, take all such proceedinggs, and
exercise.ail such rights and privileges,'aithough
not specifically mention herein, as the Trustees
may deem necessary or appropriate to administer
the Trust Property and to cant' outthe purposes of
the Retirement Trust.
Section 4.2 Distribution of Trust Property: Distributions
of the Trustproperty shall be made to, or on behalf of,
the Public Employer or Public Employer Trustee, in
accordance with the terms of the Deferred Compen-
sation Plans, Qualified 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, Public Employer Trustees or
other Trustee of the Employer Trusts without ascer-
taining whethersuch payments are in compliance with
the provision of the Deferred Compensation or Quali-
fied 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 Trust-
ees to execute any instrument or document on behalf
of all, including but not limited to the signing or en-
dorsement of any check and the signing of any appli-
cations, insurance and other contracts, and the action
of such designated Trustee or Trustees shall have the
same force and effect as if taken by all the Trustees.
ARTICLE V. DUTY OF CARE AND LIABILITY OF
TRUSTEES
Section 5.1 Duty of Care: In exercising the powers
hersinbefore granted to the, Trustees, the Trustees
shall perform all ads within their authority for the
exclusive purpose of providing benefits for the Public
Employers in connection with Deferred Compensa-
tion Plans and Public Employer Trustees pursuant to
Qualified Plans, and shall perform such acts with the
care, skill, prudence and diligence in the circum-
stances then prevailing that a prudentperson 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 Invest-
ment Adviser or any sub-investment adviser, accoun-
tants, appraisers or other experts or consultant se-
lected with reasonable care by the Trustees, officers
or employees of the Retirement Trust. The Trustees
shall also not be liable for any loss sustained by the
Trust Property by reason of any investment made,in
good faith and in accordance with the standard of care
set forth in Section 5.1.
Section 5.3, Bond: No Trustee shall be obligated to give
any bond or other security for the performance of any
of his or her duties hereunder.
ARTICLE VL ANNUAL REPORT TO SHAREHOLDERS
The Trustees shall annually submit to the Public Employers
and Public Employer Trustees a written report of the transac-
tions of the Retirement Trust, including financial statements
which shall be certfled by independent public accountants
chosen by the Trustees.
ARTICLE VII. DURATION OR AMENDMENT OF
RETIREMENT TRUST
Section 7.1 Withdrawal: A Public Employer or Public
EmployerTrustee maat anytime, withdiawfromthis
Retirement Trust by Ti. dlivering to the- Board of Trust-
ees a written statement of withdrawal. In such state-
ment, the Public Employer or Public EmployerTrustee
shall acknowledge thatthe Trust Property allocable to
the Public Employer is derived from compensation
deferred by employees of such Public'Employer pur-
suant to its Deferred Compensation Plan or from
contributions to the accounts of Employees pursuant
to a Qualified Plan, and shall designate the financial
institution to which such property shall be transferred
by the Trustees of the Retirement Trust or by the
Trustee of the Employer Trust.
Section 7.2 Duration: The Retirement Trust shallcontinue
until terminated by the vote of a ma ority of the Public
Employers, each casting one vote. upon termination,
all of the Trust Property shall be paid out to the Public
Employers, Public EmployerTrui tees 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 one vote.
Section 7.4 Procedure: A resolution to terminate or amend
the Retirement Trust or to remove a Trustee shall be
submitted to a vote of the Public Em ers if: a
majority of the Trustees so direct, or; a) a petition
requesting a vote signed by not less that 5 rcentof
the Public Employers; is submitted to the Trustees.
ARTICLE VUL MISCELLANEOUS
Section 8.1 Governing Law: Except as otherwise re-
quired 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 ex-
ecuted by the Public Employers and Trustees in two or
more counterparts, each of which shall be deemed an
original but all of which together shall constitute one
and the same instrument.
ICMA RETIREMENT CORPORATION, CORPORATE HEADQUARTERS, 777 NORTH CAPITOL STREET, NE, WASHINGTON, DC 200024240
TRUST AGREEMENT WITH THE
ICMA RETIREMENT CORPORATION
AGREEMENT made by and between the Employer named
in the attached resolution and the International City Manage-
ment Association Retirement Corporation (hereinafter the
"Trustee" or "Retirement Corporation'), a nonprofit corpora-
tion organized and existing under the laws of the State of
Delaware, for the purpose of investing and otherwise admin-
istering the funds set aside by Employers in connection with
deferred compensation plans established under section 457
of the Internal Revenue Code of 1954 (the "Code). This
Agreement shall take effect upon acceptance by the Trustee
of its appointment by the Employer to serve as Trustee in
accordance herewith as set forth in the attached resolution.
WHEREAS, the Employer has established a deferred com-
pensation plan under section 457 of the Code (the "Plan';
WHEREAS, in order that there will be sufficient funds avail-
able 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 exclu-
sively within the dominion, control, and ownership of the
Employer, and subject to the Employer's absolute right of
withdrawal, no employees having any interest whatsoever
therein;
NOW, THEREFORE, this Agreement witnesseth that (a) the
Employer will pay monies to the Trustee to be placed in
deferred compensation accounts for the Employer, (b) the
Trustee covenants that it will hold said sums, and any other
funds which it may receive hereunder, in trust for the uses
and purposes and upon the terms and conditions hereinafter
stated; and (c) the parties hereto agree as follows:
ARTICLE L GENERAL DUTIES OF THE PARTIES
Section 1.1 General Duty of the Employer: The Em-
ployer shall make regular periodic payments equal
to the amounts of its employees' compensation
which aredeferred in accordance with the terms and
conditions ofthe Plan to the extentthatsuch amounts
are to be invested under the Trust.
Section 1.2 General Duties of the Trustee: The Trustee
shall hold all funds received by it hereunder, which,
together with the income therefrom, shall constitute
the Trust Funds. it shall administer the Trust Funds,
collect the income thereof, and make payments
therefrom, all as hereinafter provided. The Trustee
shall also hold all Trust Funds which are transferred
to it as successor Trustee by the_ Employer from
existing deferred compensation arrangements with
its Employees under plans described in section 457
of the Code. Such Trust Funds shall be subject to all
of the terms and provisions of this Agreement.
ARTICLE IL POWERS AND DUTIES OF THE TRUSTEE IN
INVESTMENT,ADMINISTRATION,AND DISBURSEMENT
OF THE TRUST FUNDS.
Section 2.11nvestment Powersand DutlesofTrustee:
The Trustee shall have the power to invest and
reinvestthe principal and income of the Trust Funds
and keepthe Trust Funds invested, withoutdistinction
between principal and income, in securities or in
other property, real or personal, wherever situated,
including, but not limited to, stocks, common or
preferred, bonds, retirement annuity and insurance
policies, mortgages and other evidences of indebt-
edness or ownership, investment companies, com-
mon or group trust funds, or separate and different
types of funds (including equity, faced income) which
fulfill requirements of state and local governmental
laws, provided, however, that the Employer, may
direct investment by the Trustee among available
investment alternatives in such proportions as the
Employer authorizes in connection with its deferred
compensation agreements with its employees. For
these purposes, these Trust Funds may be com-
mingled with Trust Funds set aside by other Em=
ployers pursuant to the terms of the ICMA Retire-
mentTrusL Investment powers vested in theTrustes
by the Section may be delegated by the Trustee to
any bank, insurance ortrust company, or any invest-
ment adviser, manager or agent selected by it.
Section 2.2 Administrative Powers of the Trustee:
The Trustee shall have the power in its discretion:
(a) To purchase, or subscribe for, any securities or
other property and to retain the same in trusL
(b) To sell, exchange, convey, transfer or otherwise
dispose of any securities or other property held
by it, by private contract or at public auction. No
person dealing with the Trustee shall be bound
to see the application of the purchase money or
to inquire into the validity, expediency, orpropriety
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, orto consentto, or otherwise participate
in, corporate reorganizations or other changes
affecting corporate securities, and to delegate
discretionary powers, and to pay any
assessments orcharges in connecdon therew8h;
and generallyto exercise anyofthe powersbfan
owner with respect to stocks, bonds, securities
or other property held as part of Trust Funds.
(d) To cause any securities or other property held as
partof the Trust Funds to be registered in itsown
name, and to hold any investments in bearer
form, but the books and 'records of the Trustee
shall at all times show that all such investments
are a part of the Trust Funds.
(e) To borrow or raise money for the purpose of the
Trust in such amount, and upon such terms and
conditions, asthe Trustee shall deem advisable;
0
If"N
and, for any sum so borrowed, to issue its
promissory note as Trustee, and to secure the
repayment thereof by pledging all, or any part, of
the Trust Funds. No person lending money to
the Trustee shall be bound to seethe application
of the money lent or to inquire into its validity,
expediency or propriety of any such borrowing.
(f) To keep such portion of the Trust Funds in cash
or cash balances as the Trustee, from time to
time, may deem to be in the best interest of the
Trust created hereby, without liability for interest
thereon.
(g) To accept and retain for such time as it may
deem advisable any securities or other property
received or acquired by it as Trustee hereunder,
whether or not such securities or other'property
would normally be purchased as -investment
hereunder.
r (h) To make, execute, acknowledge, and deliver
any and all documents of transfer and
conveyance and any and all other instruments
that may be necessary or appropriate to carry
out the powers herein granted.
(i) To settle, compromise, or submit to arbitration
any claims, debts, or damages due or owing to
orfrom theTrust Funds;to commence ordefend
suits or legal or administrative proceedings; and
to represent the Trust Funds in all suits and legal
and administrative proceedings.
(j) To do all such ads, take all such proceedings,
and exercise, all such rights and privileges,
although not specifically mentioned herein, as
the Trustee may deem necessary to administer
the Trust Funds and to carry out the purposes of
this Trust
Section 2.3 Distributions from the Trust Funds: The
Employer hereby appoints the Trustee as its agent
for the purpose of making distributions from the
Trust Funds. In this regard the terms and conditions
set forth in the Plan are to guide and control the
Trustee's power.
Section 2.4 Valuation of Trust Funds: At least once a
yearas of Valuation Dates designated bytheTrustee,
the'Trustee shall determine the value of the Trust
Funds. Assets of the Trust Funds shall be valued at
their market values at the close of business on the
Valuation Date, or, in the absence of readily
ascertainable market values as the Trustee shall
determine, in accordance with methods consistently
followed and uniformly applied.
ARTICLE Ill. FOR PROTECTION OF TRUSTEE
Section 3.1 Evidence of Action by Employer: The
Trustee may rely upon any certificate, notice or
direction purporting to have been signed on behalf
of the Employer which the Trustee believes to have
been signed by a duly designated official of the
Employer. No communication shall be binding upon
any of the Trust Funds or Trustee until they are
received by the Trustee.
Section 3.2 Advice of Counsel: The Trustee may con-
suit with any legal counsel with respect to the
construction ofthis Agreement, its duties hereunder,
or any ad, which it proposes to take or omit, and
shall not be liable for any action taken or omitted in
good faith pursuant to such advice.
Section 3.3 Miscellaneous: The Trustee shall use ordi-
nary care and reasonable diligence, but shall not be
liable for any mistake of judgment or other action
taken in good faith. The Trustee shall not be liable for
any loss sustained by the Trust Funds by reasons of
any investment made in good faith and in accor-
dance with the provisions of the Agreement.
The Trustee's duties and obligations shall be limited
to those expressly imposed upon it by this Agree-
ment
ARTICLE IV. TAXES, EXPENSES AND COMPENSATION
OF TRUSTEE
Section 4.1 Taxes: The Trustee shall deduct from and
charge against the Trust Funds any taxes on the
Trust Funds or the income thereof or which the
Trustee is required to pay with respect to the interest
of any person therein.
Section 4.2 Expenses: The Trustee shall deduct from
and charge against the Trust Funds all reasonable
expenses incurred bytheTnustee in the administration
of the Trust Funds, including counsel, agency, in-
vestment advisory, and other necessary fees.
ARTICLE V. SETTLEMENT OF ACCOUNTS
The Trustee shall keep accurate and detailed accounts of
all investments, receipts, disbursements, and othertransac-
tions hereunder.
Within ninety (90) days after the dose of each fiscal year,
the Trustee shall render in duplicate to the Employer an
account of its acts and transactions as Trustee hereunder. If
any part of the Trust Fund shall be invested through the
medium of any common, collective or commingled Trust
Funds, the last annual report of such Trust Funds shall be
submitted with and incorporated in the account
0 within ninety (90) days after the mailing of the acrrountt
or any amended account the Employer has not filed with the
Trustee notice of any objection to any ad ortransaction of the
Trustee, the account or amended account shall become an
acxount stated If any objection has been filed, and fi the
Employer is .satisfied that it should be withdrawn or fi the
account is adjusted to the Employer's satisfaction, the Em-
player shall in writing filed with the Trustee signify approval of
the account and it shall become an account stated.
When an account becomes an account stated, such
account shall be finally settled, and the Trustee shall be
completely discharged and released, as d such account had
been settled and allowed by a judgment or decree of a court
of competent jurisdiction in an action or proceeding in which
the Trustee and the Employer were parties.
The Trustee shall have the right to apply at any time to a
court of competent jurisdiction forthe judicial settlement of its
account
ARMCLEVL RESIGNATION AND REMOVALOFTRUSTEE
Section 6.1 Resignation of Trustee: The Trustee may
resign at any time by filing with the Employer its
written resignation. Such resignation shall take ef-
fect sixty (60) days from the date of such filing and
upon appointment of a successor pursuant to Sao
tion 6.3., whichever shad 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 ap-
pointment of a successor pursuant to Section 6.3.
Such removal shall not take effect prior to (60) days
from such delivery unless the Trustee agrees to an
earlier effective date.
Section 6.3 Appointment of Successor Trustee: The
appoi ntment 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
successorfrom liability for the acts and omissions of
its predecessor, and (b) an acceptance in writing,
executed by such successor.
All of the provisions set forth herein with respect to
the Trustee shall relate to each successor with the
same force and effect as if such successor had been
originally named as Trustee hereunder.
If a successor is not appointed within sixty (60) days
after the Trustee gives notice of its resignation
pursuant to Section 6.1., the Trustee may apply to
any court of competent jurisdiction for appointment
of a successor.
Sectinn 6.4 Transfer of Funds to Successor: Upon the
resignation or removal of the Trustee and appoint-
ment of a successor, and after the final account of
the Trustee has been properly settled, the Trustee
shall transfer and deliver any of the Trust Funds
involved to such successor.
ARTICLE VII. DURATION AND REVOCATION OF TRUST
AGREEMENT
Section 7.1 Duration and Revocation: This Trust shall
continue for such time as may be necessary to
accomplish the purpose for which it was created but
may be terminated or revoked at any time by the
Employer as it relates to any and/or all related
participating Employees. Written notice of such
termination or revocation shall be given to the Trustee
by the Employer. Upon termination or revocation of
the Trust, ail of the assets thereof shall return to and
revert to the Employer. Termination of this Tout
shall not, however, relieve the Employer of the
Employer's continuing obligation to pay deferred
compensation to Employees in accordance with the
terms of the Plan.
Section 7.2 Amendment: The Employer shall have the
right to amend this Agreement in whole and in part
but only with the Trustee's written consent Any such
amendment shall become effective upon (a) deliv-
ery to the Trustee of a written instrument of amend-
ment, and (b) the endorsement by the Trustee on
such instrument of its consent thereto.
ARTICLE VUL MISCELLANEOUS
Section 8.1 Laws of the District of Columbia to Gov-
em: This Agreement and the Trust hereby created
shall be construed and regulated by the laws of the
District of Columbia.
Secdcn&2Successor Employers:The'Employer'shall
include any person who succeeds the Em loyer and
who thereby becomes subject to the obligations of
the Employer under the Plan.
Section 8.3 Withdrawals: The Employer may, at any
time, and from time to time, withdraw a portion or all
of Trust Funds created by this Agreement
Section 13.4 Gender and Number: The masculine in-
dudes the feminine and the singular includes the
plural unless the context requires another meaning.
ICMA RETIREMENT CORPORATION, CORPORATE HEADQUARTERS, 777 NORTH CAPITOL STREET, NE, WASHINGTON, DC 2OW24240