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HomeMy WebLinkAbout99-001 - ResolutionsRESOLUTION NO. FD 99-001 A RESOLUTION OF THE BOARD OF DIRECTORS OF THE RANCHO CUCAMONGA FIRE PROTECTION DISTRICT ADOPTING THE DEFERRED COMPENSATION OF ICMA RETIREMENT CORP. AND APPROVING THE DECLARATION OF TRUST OF THE ICMA RETIREMENT TRUST WHEREAS, the Rancho Cucamonga Fire Protection District has employees rendering valuable services; and WHEREAS, the establishment of a deferred compensation plan for such employees serves the interest of the District 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 District 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 District desires that the deferred compensation plan be administered by the ICMA Retirement Corporation, and that some or all of the funds held under such plan be invested in the ICMA Retirement Trust, a trust established by public employers for the collective investment of funds held under their retirement and deferred compensation plans; NOW THEREFORE BE IT RESOLVED that the District hereby adopts the deferred compensation plan (the "plan") in the form of the ICMA Retirement Corporation Deferred Compensation Plan and Trust, referred to as Appendix A BE IT FURTHER RESOLVED that the District hereby executes the Declaration of Trust of the ICMA Retirement Trust, attached hereto as Appendix B, intending this execution to be operative with respect to any retirement or deferred compensation plan subsequently established by the Employer, if the assets of the plan are to be invested in the ICMA Retirement Trust. BE IT FURTHER RESOLVED that the assets of the Plan shall be held in trust, with the District serving as trustee, for the exclusive benefit of the Plan participants and their beneficiaries, and the assets shall not be diverted to any other purpose. BE IT FURTHER RESOLVED that the Plan will not permit loans. BE IT FURTHER RESOLVED that the District hereby agrees to serve as trustee under the plan. Resolution No. FD99-001 Page 2 BE IT FURTHER RESOLVED that the Administrative Services Director shall be the coordinator for this program; shall receive necessary reports, notices, etc. from the ICMA Retirement Corporation or the ICMA Retirement Trust; shall cast, on behalf of the District, any required votes under the ICMA Retirement Trust; and is authorized to execute all necessary agreements with ICMA Retirement Corporation incidental to the administration of the Plan. ATTEST: PASSED, APPROVED, AND ADOPTED this 17th day of February, 1999. AYES: Alexander, Biane, Curatalo, Dutton, Williams NOES: None ABSENT: None ABSTAINED: None William J. Alexan~;le'r, President I, DEBRA J. ADAMS, SECRETARY of the Rancho Cucamonga Fire Protection District, do hereby certify that the foregoing Resolution was duly passed, approved, and adopted by the Board of Directors of the Rancho Cucamonga Fire Protection District, at a regular meeting of said Board held on the 17th day of February, 1999. Executed this 18th day of February, 1999, at Rancho Cucamonga, California. D~bra J. Ada~§, Secretary 457 Plan .4 d0pt~.. Package Retain D('ferred Comp~'nsa~o. P!a n Do cu.: cnl an,t Resolution No. FD99-001 Page 3 Ttu.,t ~.4pril 1 9 9 8 APPENDIX A DEFERRED COMPENSATION PLAN & TRUST Article I, Purpose The Employer hereby establishes the Employer's deferred Compensation Plan and Trust, hereafter referred to as the "Plan." The Plan consists of the provisions set ~brth m t}ns document. The primary purpose of this Plan is to provide retirement income and other deferred benefits to the Employees of the Employer and the Employees' Beneficiaries m accordance with the provisions of Section 457 of the Internal P,.e,:enue Code of 1986. as amended (the "Code"). This Plan shall be an agreetnent solely between the Em- ployer and participating Employees. The Plan and Trust fortrang a part hereof are established and shall be maintained for the exclusive benefit of eligible Employees and their Beneficiaries. No part of the corpus or income of the Trust shall revert to the Employer or be used tbr or diverted to purposed other than the exclusive benefit of Participants and their Beneficiaries. Article II. Definitions 2.01 Account: The bookkeeping account maintained each Participant reflecting the cumulative amount of the I'artic~pant's I)efcrred Compensation, including any income, gains, losses. or Increases or decreases ill market vah, e attributable to qac Employer's investment of the Participant's I)eferred Compensatmn. and further reflecting any dismbu- timis to the Participant or the Participant's Beneficiary and any fees or :'xpcnses charged against such Participant's l)cferred Conlpcn~ation. 2.02 Accounting Date: Each business day that the New York Stock Exchange ~ open for trading. as provided m Section 6.(R~ for valuing the Trust's assets. 2.03 Administrator: The person or persons named to carry out certain nondiscretmuan, administrative functions under the Plan, as hereinafter described The Employer may remove any person a~ Administrator t, pon 60 days' a&.ancc notice m writing to such person, m which case thc Em- ployer shall name another person or persous to act as Administrator. The Administrator may resign upon 6() day~' advance nonce m writing to the Employer, m which case the Employer shall name another person or persons to act as Adnnmstrator. 2.04 Beneficiary: The person or persons designated by the Participant in his Joinder Agreement who shall receive any benefits payable hereunder m 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. unless otherwise provided in the Participant's Joinder Agreement. If no beneficiary is designated in the Joinder Agreements if 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 bc the Beneficiary 2.05 Deferred Compensation: The amount of Normal Compensation otherwise payable to the Participant which the Participant and the Employer mutually agree to deter hereunder, any amount credited to a Participant's Account by reason of a transfer under section 6.09, or any other amount which the Employer agrees to credit to a Participant's Account. 2.06 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. 2.07 Includible Compensation: The amount of an Employee's compensation from the Employer for a taxable year that is attributable to services perforated for the Employer and that is mcludible in the Employee's gross income for the taxable year for federal income tax purposes; such term does not include any amount excludabte from gross income under this Plan or any other plan described in Section 45700) of the Code or any other amount exctudable from gross ~ncome for federal income tax purposes Includ- inc Compensation shall be detemnned without regard to any comn~unity property laws. 2.08 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, speci$' a prefer- ence among the investment alternatives designated by the Employer, designate the Employee's BeneficiaW or Beneft- ciaries. and incorporate the terms, conditions, and provismns of the Plan by reference. Resolution No. FD99-001 Page 4 ICMA RETIREMENT CORPORATION 2.09 Normal Compensation: The amount of Com~, pensation which would be payable to a Participant by the Employer for a taxable year if no Joinder Agreement were m effect to defer compensation under this Plan. 2.10 Normal Retirement Age: Age 70-1/2. unless the Participant has elected an alternate Normal IKetirement Age by written instrument delivered to the Administrator prior to Separation from Sen, ice. A Participant's Normal Retire- ment Age detem~ines the period during which a Participant may utilize the catch-up limitation of Section 5.f)2 hereun.- der. Once a Participant has to any extent utilized the catch-- up limitation of Section 5.02, his Normal l~.etirement Age may not be changed. A Participant's alternate Normal P-.etirement 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 will attain age 70-1/2. !f a Participant continues employtnent after attaining age 7(} - 1/2, not having previ- ously elected alternate Normal Retirement Age, the Participant's alternate Nom~al tt. etirement 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 has no maudatory retirement age. If the Participant will not become eligihle to receive benefits under a basic retirement plan maintained by the Employer, the Participant's alternate Normal Retirement Age may not be earlier than age 55 and may not be later than age 71)-1/2. 2.11 Participant: Any Employee who ha~.loined the Plan pursuant to the requirements of Article Ix.'. 2.12 Plan Year: The calendar year 2.13 Retirement: The first date upon which both of the foilowing shall have occurred with respect to a parttcipant: Separation from Service and attainment o(age 65. 2.14 Separation From Service: Sevt, r:mcc of the Participaut's employment with the Employer whtch constt-~ tutes a "separation from sea'ice" w~thm the meaning o£ Section 402 (d) (4) (A) (iii) of the Code. In general, a Participant shall be deemed to have severed his employment with the Employer for purposes of this Plan when, m accordance with the established practicc~ of the Erapie'yet, the employment reidtranship is considered to have actually terminated. In the case era Participant who is an indepen- dent contractor of the Employer, Separation t¥om Serwcc shall be deemed to have occurred when the Participant's cunttact under which services are performed has completely expired and terminated, there is no foreseeable possibitit3. that the Employer will renew the contract or ente! into a new contract for the participant's services, and is not antici- pated that the pamcipant will become an Employee of the Employer. 2.15 Trust: The Trust created under Article VI of the Plan which shall consist of all compensation deferred under the Plan, pitts any income and gains thereon, less any losses, expenses and &stributions to Participants and Beneficiaries. Article III. Administration 3.01 Duties of the Employer: The Employer shall have the authoriD' to make all discretionary. decisions affecting the rights or beuefits of Participants which may be required in the administration of this Plan. The Employer's decisions shall be aftbrded the maximum deference pernutted by applicable law. 3.02 Duties of Administrator: The Administrator, as agent for the Employer, shall perf0m~ nondiscretionary administrative functions in connection with the Plan, including the maintenance of Participants' Account.s, the provision of periodic reports of the status of each Account, and the disbursement of benefits on behalf of the Employer m accordance with the provisions of this Plan. Article IV. Participation in the Plan 4.01 Initial Participation: An Employee may become a Participant by entering into a Joinder Agreement prior to the beginning of the calendar month in which the Joinder AgreelnCnt is to becoule efl~:ctive to defer compensatmn not vet e,lrned. 4.02 Amendment of Joinder Agreement: A Participant tnav amend an executed Joinder Agreement to change the amount of compensation not yet earned which is to be deferred Iraeluding the reduction of such future deferrals to zero) or to change his investment preference (subject to such restrictions as may result froth the nature of terms of any investment made by the Employer). Such amendmeut shall become cfi~2ctive as of the beginning of the calendar month commencing after the date the amendment is executed. A Participant may at any time amend hisJoinder Agreelnent to change the designated Beneficiary. and such amendment shall become effective immediately. 4 5 7 Plan A d o? t ~ ,? n Dcfcrrcd Compc.satt,'n Resolution No. FD99-001 Page 5 Package Retain Docu m rn ~ Plan Docu merit, ,4 pr~l 1998 Article V. Limitations on Deferrals 5.01 Normal Limitation: Except as provided in section 5.02, the nlaxmaum amount of Deferred Compensation for any Participant for any taxable year shall not exceed the lesser of $7,500.00, as adjusted for the cost-of-living m accordance with Code section 457(e)(15) for taxable years beginning after December 31, 1996 (the "dollar limitatimC'), or 33-1/3 percent of the participant's lncludib]e Compensa- tion for the taxable year. This limitation ~vill ordinarily be equivalent to the lesser of the dollar limitation m effect the taxable year 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 R. etirement Age, the maximum amount of Deferred Compensation shall be the lesser of.' (1) $I 5,000 or (2) the sum of(i) the Normal Lunitation for the taxable year, 2nd (ii) 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 (ii') compensation (if any) deferred under the Plan (or such other phn) was subject to the deferral limitations set forth m Section 5.01 5.03 Other Plans: '/'he amount exc]udable 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 S7,500.00 (or such greater amount allowed under Sections 5.0~ or 5.02 of the Plan), less a:ny amount exclndcd from gross income under section 403(b), 4t12(a)(8), or 402(h)(l)(B) of the Code, or any amount with respect to which a deduction is allowable by reason of a contribution to an organization described m section 50i (c)(18) of the Code. Article VI. Trust and Investment of Accounts 6.01 Investment of Deferred Compensation: A Trust is hereby created to hold all the assets of the Plan for the exclusive benefit of Participants and Beneficiaries, except that expenses and taxes may be paid from the Trust as provided in Section 6.03. The trustee shall be the Employer or such uther person which agrees to act in that capacity hereunder. 6.02 Investment Powers: The trustee or the Plan Admimstrator, acting as agent for the trustee, shall have the powers listed m this Section with respect to investment of Trust assets, except to the extent that the investment of Trust assets is directed by Participants, pursuant to Section b.05. (a) To invest and reinvest the Trust without distinction between principal and income in common or preferred stocks, shares of regulated investment companies and other mutual funds, bonds, loans, notes. debentures, certificates of deposit, contracts with insurance companies including but not Ironted to insurance, individual or group annuity, deposit administration, guaranteed interest contracts. and deposits at reasonable rates of interest at banking institutions including but not limited to savings accounts and certificates of deposit. Assets of the Trust may be invested in securities that revolve a higher degree of risk than investments that have demonstrated their investment performance over an extended period of time. (b) To invest and reinvest all or any part of the assets of the Trust in any common, collective or cornmingled trust fund that is maintained by a bank or other institution and that is available to Em- ployee plans described under sections 457 or 401 of the (:ode, or any successor provisions thereto, and during the period of time that an investment through any such medium shall exist, to the extent ufparnc~pation of the Plans the declaration of trust of such c'ommonly collective, or commingled trust fund shall constitute a pan of this Plan. Resolution No. FD99-001 Page 6 ICMA RETIREMENT CORPORATION (c) To invest and reinvest all or any part of the assets of the Trust in any group annuity, deposit administration or guaranteed interest contract issued by an insurance company or other financial institution on a commingled or collectn'e basis with the assets of any other 457 plan or trust qualified under section 401(a) of the Code or any other plan de- scribed in section 401 (a)(24) of the Code, and such con- tract Inay be held or issued in the name of the Plan Admin- istrator, or such custodian as the Plan Administrator may appoint, as agent and nominee for the Employer. During the period that an investment through any such contract shall exist, to the extent of participation of the Plan, the terms and conditions of such contract shall constitute a part of the Plan. (d) To hold cash awaiting investment and to keep such portion of the Trust in cash or cash balances, without liability for interest, m such amounts as may from time to time be deemed to be reasonable and necessar3' to meet obligations under the Plan or otherwise to be in the best interests of the Plan. (e) To hold, to authorize the holding ofl and to register any investment to the Trust in the name of the Plan, the Employer, or any nominee or agent of any of the foregoing, including the Plan Admimstrator, or in bearer form, to deposit or arrange for the deposit of securities in a qualified central depository even though, when so deposited, such securities may be merged and held in bulk in the name of the nonnnee of such depository with other securities deposited therein by any other person, and to organize corporations or trusts under the laws of any jurisdiction tor the purpose of acquiring or holding title to an5' property for the Trust. all with or without the addition of words or other action to indicate that property is held in a fiduciary or representative capacity but the books and records of'ti~e Plan shall at all times show that all such investments arc part of the Trust. (0 Upon such tcmis as may be deemed advisable by the Employer or the Plan Administrator, as the case may be, tbr the protection of the interests of the Plan or for the preser- vation of the value of an investment, to exercise and enforce by suit for legal or equitable remedies or by other action. or to waive any nght or claim on behalf of the Plan or any default m any obligation owing to the Plan, to renew, extend the time for payment of, agree to a reduction m the rate of interest on. or agree to any other modification or change m the terms of any obhgat~on owing to the Plan. to settle, compromise, adjust, or submit to arbitration any claim or right in favor of or against the Plans to exercise and enforce any and all rights of foreclosure, bid for property in foreclosure, and take a deed in lieu of foreclosure with or without paying consideration therefor, to commence or defend suits or other legal proceedings whenever any interest of the Plan requires it, and to represent the Plan in all suits or legal proceedings in any court of law or equity or before any body or tribunal. (g) To employ suitable consultants, depositories, agents, and legal couusel on behalf of the Plan. (h) To open and maintain any bank account or accounts in the name of the Plan, the Employer, or any nominee or agent of the foregoing, including the Plan Administrator, in any bank or banks. (i) To do any and all other acts that may be deemed neces- saD' to can3' out any of the powers set forth herein. 6.03 Taxes and Expenses: All taxes of any and all kinds whatsoever that may be levied or assessed under existing or future laws upon, or in respect to the Trust, or the income thereof, and all commissions or acquisitions or dispositions of securities and similar expenses of investment and reinvest- ment of the Trust, shall be paid from the Trust. Such reasonable compensation of the Plan Administrator, as may be agreed upon from time to time by the Employer and the Plan Administrator, and reimbursement for reasonable expenses incurred by the Plan Administrator in performance of its duties hereunder (including but not limited to fees for legal, accounting, investment and custodial services) shall also be paid from the Trust. 6.04 Payment of Benefits: The payment of benefits from the Trust in accordance with the temps of the Plan may be made by the Plan Administrator, or by any custodian or other person so authorized by the Employer to make such disbursement. The Plan Administrator, custodian or other person shall not be liable with respect to any distribution of Trust assets made at the direction of the Employer. 6.05 Investment Funds: In accordance with uniform and non&scnminatory rules established by the Employer and the Plan Administrator, the Participant may direct his/her Accounts to be invested m one (1) or more investment funds available under the Plan; provided, however, that the Participant's investment directions shall not violate any investment restrictions established by the Employer. Neither the Employer, the Administrator, nor any other person shall be liable for any losses incurred by virtue of following such directions or with any reasonable administrative delay ~n implementing such directions. Resolution No. FD99-001 Page 7 457 Ptan A dop~'~v~ Packagr R rtain Documcut Dr.ferr cd Comp e ,s a t~o~ Pla u Do c u m c,t, A p ~l I 9 9 8 6.06 Valuation of Accounts: As of each Accounting Date, the Plan assets held in each investment fired ofi~red shall be valued at fair market value and the investment income and gains or losses for each fund shall be determined. Such investment income and gains or losses shall be allocated proportionately among all Account balances on a fund-by- fund basis. The allocation shall be m the proportion that each such Account balance as of the immediately precedir, g Accounting Date bears to the total of all such Account balances as of that Accounting Date. For purposes of this Article. all Account balances include the Account balances of all Participants and Beneficiaries. 6.07 Participant Loan Accounts: Participant Loan Accounts shall be invested in accordance with Section &03 of the Plan. Such Accounts shall not share in any investment income and gains or losses of the investment funds described in Sections 6.05 and 6.06. 6.08 Crediting of Accounts: The Participant's Accotint shall reflect the amount and value of the investments or other property obtained by the Employer through the investment of the Participant's Deferred Compensation pursuant to Sections 6.05 and 6.06. It is anticipated that the Employer's investments with respect to a Participant will conform to the investment preference specified m the Participant'sJoinder Agreement, but nothing hereto shall bc construed to require the Employer to make any particular investment of a Participant's Deferred Compensation. Each Participant shall receive periodic reports, not less frequently than annually, showing the then current value of his/her Account. 6.09 Transfers: (a) Incoming Transfers: A transfer may be accepted froni an eligible deferred compensation plan tnaintained by another employer anti credited to a Participant's Account under the Plan if (I) the Participant has separated from service with that employer and become an Employee of the Employer, and (ii) the other employer's plan provides that such transfe3 will be made. The Employer may require such documentation from the predecessor plan as it deems necessary to effec~:uate the transfer, to confirm that such plan is an eligible deferred compensation plan within the meaning of Sectiorl 457 of the Code, and to assure that transfers are provided for under such plan. The Employer may refuse to accept a transfer in the fom~ of assets other than cash, unless the Employer and the Admimst,,'-ator agree to hold such other assets under the Plan. Any such transferred amount shall be treated as a deferral sub. leer to the hmitations 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 ~t has been deferred under this Plau during such taxable year aud compensauon paid by the transferor employer shall be treated a.~ if it had been paid by the Employer. (b) Outgoing Transfers: An amount may be transferred to an eligible deferred compensation plan maintained by another employer, and charged to a Participant's Account under this Plan, if (i) the Participant has separated from service with the Employer and become an employee of the other employer, (ii) the other employer's plan provides that such transfer will be accepted, and (iii) the Participant and the employers have signed such agreements as are necessary to assure that the 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 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 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. 6.10 Employer Liability: In no event shall the Employer's liability. to pay benefits to a Participant under this Plan exceed the value of the amounts credited to the Participant's Account; neither the Employer nor the Administrator shall be liable for losses arising from depreciation or shrinkage in the value of any investments acquired under this Plan. Resolution No. FD99-001 Page 8 ICMA RETIREMENT CORPORATION Article VII. Benefits 7.01 Retirement Benefits and Election on Separation from Service: Except as otherwise provided ]n this Article VII, the distribution of a Participant's Account shall corn-. mence as of April 1 of the calendar year after the Plan Year of the Participant's 1Ketirement, and the distribution of such Retirement benefits shall be made in accordance with one of the payment options described in Section 7.02. Notwith-- standing the foregoing, but subject to the following para- graph of this Section 7.01, the Participant may irrevocably elect within 60 days following Separation from Service to have the distribution of benefits commence on a fixed determinable date other than that described in the preceding sentence which is at least 61 days after Separation from Service, but not later than April 1 of the year following the year of the Participant's Retirement or attainment of age 7o- 1/2, whichever is later. Notwithstanding the foregoing provisions of this Section 7.01, no election to defer the commencement of benefits after a separation from service shall operate to defer the distribution of any amount m the Participant"s Loan Account in the event of a default of the Participant's loan. Effective on or afterJanua/T 1, 1997, the Participant may elect to del~r the commencement of distribution of benefits to a fixed detem~inable date later than the date described above. but not later than April 1 of the year following the year of the Participant's retirement or attainment of age 70- 1/2, whichever is later, provided (a) such election is made after the 61st day following Separation from Service and before commence~l~ent of distributions and (b) the Partici- pant may make only one (1) such election. Notwithstanding the foregoing, the Administrator, in order to ensure the orderly administration of this provision, may establish a deadline after ~vhich such election to defer the conunerlce- ment of distribution of benefits shall not be allowed. 7.02 Payment Options: As provided in Section~ 7.01, 7.04 and 7.05, a Participant or Beneficiary may elect to have value of the Participant's Account distributed in accordance w,th one of the following payment options, provided that ~uch option is consistent with the limitations set forth in Section 7.03. (a) Equal monthly, quarterly, senn-annual or annual pay- merits in an amount chosen by the Participaut, coutmumg until h~s/her Account is exhausted; One lump-sum- payment: (c) Approxmmtely equal monthly, quarterly, senn-annual or annual payments, calculated to continue for a period certain chosen by the Participant. (d) Annual Payments equal to the miningurn distributions required under Section 401 (a)(9) of the Code over the life expectancy of the Parncipant or over the life expectancies of the Participant and his Beneficiary. (c) l)avments equal to payments made by the issuer of a retirement annuitT policy acquired by the Employer, (t) A split distribution under which payments under options (a), (b), (c) or (e) cormhence or are made at the same time, as elected by the Participant under Section 7.01, provided that all payments commence (or are made) by the latest benefit commencement date under Section 7.01 and that once a paymeut is made subsequent payments will be made in substantially nonincreasing amounts. (g) Any payment option elected by the Participant and agreed to by the Employer and Administrator, provided that such option must provide for substantially nonincreasing payments for any period after the benefit commencement date under Section 7.01. A Participant's or Beneficiary's selection of a payment option made atier December 31, 1995, under Subsections (a), (c), or (g) above may include the selection of an automatic annual cost-of-living increase. Such increase will be based on the rise m the Consumer Price Index for All Urban Consumers (CPI-U) from the third quarter of the last year in which a cost-of-living increase was provided to the third quarter of the current year. Any increase will be made in periodic payment checks beginning the following January. The first cost-of-living increase will be based on the rise in the CPI-U from the third quarter of 1995 to the third quarter of 1996, and will be applied to amounts paid beganningJanuary 1997. 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. Ifa 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 or such shorter period of time necessary. to ensure that the amount of any installment is not less than $1,200 per year, w~thout the inclusion of a cost-of-hving increase. Resolution No. FD99-001 Page 9 457 Plan A dopt~ot~ Pa~ ~agc R train Document Drclaration of Trust o.! t*~,' ICMA Rctirc mcnt Trust, At~ril I998 7.03 Limitation on Options: No payment option may be selected by a Participant under subsections 7.02(a) or (c) unless the amount of any installment is not' less thais $1,200 per year. No payment option may be selected by a Partici- pant 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 commencusg before the death of the Participant shall satisfy the incidental death benefits requirement under section 457(d)(2)(B)(i)(]). A cost-of-living increase included as part of a payment option selected under Section 7.02 shall not be considered to fail to satisfy the requirement under section 457(d)(2)(b) that any distribution made over a period of more than one year can only be made in substantially nonincreasing amounts. Unless otherwise elected by the Participant (or spouse, in the case of distributions described in Section 7.05 below) by the time distributions are required to begin, life expectancies shall be recalculated annually. Such election shall be irrevocable as to the Participant (or spouse) and shall apply to all subsequent years. The life expectancy of a nonspouse Beueficiary may not be recalculated. 7.04 Post-retirement Death Benefits: (a) Should the Participant die a~er he/she has begun to receive benefits under a pa3qnent option, the remaining payments, if any, under the payment option shall be payable to the participant's Beneficiary within the 30-day period commencing with the 61st 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 for payments at a rate that is at least as rapid under the payment option that wa~ applicable to the Participant. In no everat shall the Employer or Administrator be liable to the Be~aefi- ciary 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 ~knr the remaining period of payments under the payment option, then the commuted value of any remaimng pay- ments u,~der the payment option shall be paid m a lump suni to the estate of the Beneficiary. In the event that the Participant's estate is the Beneficiary, the commuted valve of any remaining payments under the payment option shall be paid to the estate in a lump sum. 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 elects a different fixed or determinable benefit commence-- ment date within 90 days of the Participant's death. Such benefit commencement date shall be not later than the later of (i) December 31 of the year following the year of the participant's death, or (ii) if 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 necessary to assure that the amount of any annual installment is not less than $3,500. A Beneficiary' shall be treated as if he/she were a Participant for purposes of detemuning the payment options available under Section 7.02, provided, however, that the payment option chosen by the Beneficiary must provide for payments to the Beneficiary over a period no longer than the life expectancy of the Beneficiary', and provided that such period may not exceed (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 suns. In the event that the Participant's estate is the Beneficiary, payment shall be made to the estate in a lump sum. 7.06 Unforeseeable Emergencies: (a) In the event an unforeseeable emergency occurs, a Participant may apply to the Employer to receive that part of the value of his/her Account that is reasonably needed to satisfy the emergency need. If such an application is approved by the Employer, the Partic;pant 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 ofdeferral under the Plan, insurance or other reimbursement, or liquidation of other assets to the extent such liquidation would not itself cause severe financial hardship. Resolution No. FD99-001 Page 10 ICMA RETIREMENT CORPORATION (b) An unforeseeable emergency shall bc deemed to only circumstances of severe financial hardship to the Participant resulting from a sudden unexpected illness. accident, or disabili~' of the Participant or of a dependent defined m section 152(a) of the Code) of the Participant. loss of the Participant's property due to casuaM', or other similar and extraordinary unforeseeable c~rcumstauccs arbing 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 uuforesceable entergencies. The determination as to whether such an unforeseeable emergency exists shall be based on the mcnts of each individual case. 7.07 Transitional Rule for Pre-1989 Benefit Elections: In the event that, prior to January 1, 1989, a Participant or Beneficiary has commenced receiving benefits under a payment option or has irrevocably elected a payment opnon or bent-fit commencement date, then that payment optxtra or election shall remain in effect notwithstanding any other provision of the Plan. 7.08 De Minimis Accounts: Notwithstanding the tk)rego- ing provisions of this Article, if the value of a Participant's Account does not exceed the dollar limit under secuon 411 (a) (11) (A) of the Code and (a) no amount has been deferred under the Plan ~vith respect to the Participant during the 2-year period ending on the date of the distribu- tion and (b) there has been no prior distributmn under the Plan to the Participant pursuant to this Section 7.0b, the Participant may elect to receive nr the Employer may distribute the participant's entire Account without the consent of the Participant. Such distribution shall bt' mad'c m a lump sum. Article VIII. Loans to Participants 8.01 Availability of Loans to Participants: (a) Effective Janua~' 1, 1997, the Employer may elect to make loaus available to Participants m this Plan. If the Employer has elected to make loans available to Participauts, a Participant may apply for a loan from the Plan sub~ect to the limitations and other provisions of thin Article. (b) The Employer shall establish written guidelines ?vern- ing the granting of loans, provided that such guidehnc, approved by the Plan Administrator and are not mcon~stenl with the provisions of this Article. and that loans are made available to all Pamc~p~nt~ on a rca5onab]y equivalent 8.02 Terms and Conditions of Loans to Participants: Any k)an by the Plan to a Participant under Section 8.01 of the Plan shall satisfy the followlug requirements: (a) Availability. Loans shall be made available to all Partici- pants on a reasonably equivalent basis. (b) Interest lkatc. Loans must be adequately secured and bear a reasonable interest rate. (c) Loan Limit. No Participant loan shall exceed the present value of the Participant's Account. (d) Foreclosure. In the event of default on any installment paymeut, the outstanding balance of the loan shall be a dee,ned distributmn. In such event, an actual distribution of a plan loan offset amount will not occur until a distributable event occurs in the Plan. (e) tkeducticm of Account. Notwithstanding any other provision of this Plan, the portion of the Participant's Accomat balance used as a securit3, interest held by the Plan by reason of a loan outstanding to the Participant shall be taken into account for purposes of determining the amount of the Account balance payable at the time of death or dbtribution, but only if the reduction is used as repayment of the loan. (t) Amount of Loan. At the time the loan is made, the principal amount of the loan plus the outstanding balance (priucipat plus accrued interest) due on an5' other outstanding loans to the Participant from the Plan and from all other plans of the Employer that are qualified employer plans under section 72(p)(4) of the Code shall not exceed the least of: 1) S50,t)00, reduced by the excess (if any) of (a) The highest outstanding balance of loans front the Plan during the one (1) year period ending on the day before the date on which the loan is made, over 00) The outstanding balance of loans from the Plan on the date on which such loan is made: or (2) One-half of the value of the Participaut's interest m all of tus/her Accounts under this Plan. 457 Dcclaratio. of Plan Adoption Pa, ka£c Retain Trusl ,~f thc ICMA Rrtircme.t Resolution No. FD99-001 Page 11 Trust, Apri I 998 (g) Application for Loan. The Participant must give the Employer adequate written notice, as determined by the Employer, of the amount and desired time for receiving a loan. No more than one (1) loan may be made by the Plan to a Participant's m any calendar year. No loan shall be approved if an existing loan from the Plan to the Participant ~s m default to any extent. (h) Length of Loan. Any loan issued shall require the Participant to repay the loan in substantially equal restail- ments of principal and interest, at least monthly, over a period that does not exceed five (5) years from the date of the loan; provided, however, that if the proceeds of the loan are applied by the Participant to acquire any dwelling unit that is to be used within a reasonable time (determined at the time of the loan is made) after the loan is made as the principal residence of the Participant, the five (5) year limit shall not apply. In this event, the period of repayment shall not exceed a reasonable period determined by the Employer. Principal installments and interest payments otherwise due may be suspended for up to one (1) year during an autho- rized leave of'absence, if the promissory note so provides, but not beyond the original term permitted under this subsection(h), with a revised payment schedule (within such term) instituted at the end of such period of'suspension. (i) Prepayment. The Participant shall be pemutted to repay the loan in whole or m part at any time prior to maturity, without penalty. 0) Pronussory Note. The loan shall be evidenced by a promissory note executed by the Participant and delivered to the Employer, and shall bear interest at a reasonable rate determined by the Employer. (k) SecuritT. The loan shall be secured by an assignment of the participant's right, title and interest in and to his/he~ Account. (I) Assignment or Pledge. For the purposes of paragraphs (f) and (g), assignment or pledge of any portion of the Participant's interest m the Plan and a loan, pledge, or assigmment with respect to any insurance contract purchased under the Plan, will be treated as a loan. (m) Other Terms and Conditions. The Employer shall fix such other terms aud con&tions of the loan as it deems necessary to comply with legal reqmrements, to maintain the qualification of the Plan and Trust under section 457 of the Code, or to prevent the treatment of the loan for tax purposes as a distribunon to the Participant. The Employer, m its discretion for any reason, may fix other terms and conditions of the loan, not inconsistent with the provismns of this Article and section 72(p) of the Code. 8.03 Participant Loan Accounts: (a) Upon approval of a loan to a Participant by the Em- ployer, an amount not in excess of the loan shall be trans- t~rred from the Participant's other investment fund(s), described in Section 6.05 of the Plan, to the Participant's Loan Account as of the Accounting Date immediately preceding the agreed upon date on which the loan is to be nlade. (b) The assets of a Participant's Loan Account may be lovested and reinvested only in promissory notes received by the Plan from the Participant as consideration for a loan penrotted by Section 8.01 of the Plan or in cash. Uninvested cash balances in a Participant's Loan Account shall not bear interest. Neither the Employer, the Administrator, nor any other person shall be liable for any loss, or by reason of any breach, that results from the Participant's exercise of such control. (c) Repayment of principal and payment of interest shall be made by payroll deduction or, where repayment cannot be made by payroll deduction, by check, and shall be invested m one (1) or more other investment funds, in accordance with Section 6.05 of the Plan, as of the next Accounting l)ate after payment thereof to the Trust. The amount so rovested shall be deducted from the Participant's Loan Account. (d) The Employer shall have the authority to establish other reasonable rules, not inconsistent with the provisions of the Plan, governing the establishment and maintenance of Participant Loan Accounts. Article IX. Non-assignability 9.01 In General: Except as provided in Article VIII and Section 9.02, no Participant or Beneficiary shall have any right to commute, sell assign, pledge, transfer or otherwise couvey or encumber the right to receive any payments hereunder, which payments and rights are expressly declared to be non-assignable and non-transfk~rable. ,Vin, Resolution No. FD99-001 Page 12 ICMA RETIREMENT CORPORATION 9.02 Domestic Relations Orders: (a) Allowance of Transfers: To the extent required under final judgement, decree. or order (including approval of a properrs.' settlement agreement) made pursuant to a state domestic relations law, any portion of a Participant's Ac- count may be paid or set aside for payment to a spouse, former spouse, or child of the Participant. Where necessary to carD' out the terms of such an order, a separate Account shall be established with respect to the spouse, tbnner 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 paylnent. Nothing in this Section shall be construed to authorize any amount to be distributed under the Plan at a time or m a form that is not permitted under Section 457 of the Code Any payment made to a person other than the Participant pursuant to this Section shall be reduced by required ~n¢ome tax withholding; the fact that payment is made to a person other than the Participant may not prevent such payment from being includible in the {,,'ross income of the Participant for withholding and income tax reporting purposes. (b) Kelease 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 spouse, or child pursuant to paragraph (a) of the Section. No such transfer shall effectuated unless the Employer or Adnunistrator has been provided with satisfactory evidence that the Employer 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 respect to such amounts, in any case m which (i) the Employer or Admimstrator has been served with legal process or otherwise .joined in a proceeding relating to such transfer, (ii) the Participant has been notified 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 ~n such acnon or by mail from the Employer or Administrator to the Participant's hst known maihng address, and (iii) the Partit i.- pant fails to obtain an order of the court m the proceeding relieving the Employer or Administrator frond the obligation to comply with the ~judgment. decree, or order. (c) Participatiou in Legal Proceedings: The Employer and Admimstrator shall not be obligated to defend against or set aside any judgement, decree. or order described in paragraph (a) or any legal order relating to the garnishment of a Participant's benefits. unless the full expense of such legal action is borue by the Participant. In the event that the Participant's action (or reaction) nonetheless causes the Employer or Administrator to recur 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 Participant. in the course of any proceeding relating to divorce, separation, or child support, the Employer and Administrator shall be authorized to disclose infimnation relating to the Participant's Account to the Participant's spouse, former spouse, or child (including the legal representatives of the spouse, former spouse. or child), or to a court. Article X. Relationship to other Plans and Employment Agreements This Plan serves in addition to any other retirement, pen- sion, or benefit plan or system presently in existence or hereinafter established for the benefit of the Employer's employees, and participation hereunder shall not affect benefits receivable under 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 Elnployer or to give any Participant the right to be retained m 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 XI. Amendment or Termination of Plan The Employer may at any time amend this Plan provided that it transmits such amendment in writing to the Adminis- trator at least 30 days prior to the effective date of the amendment. The consent of the Administrator shall not be required m order for such amendment to become effecnve, but the Admimstrator shall be under no obligation to contint,e acting as Administrator hereunder if it disapproves of such amendment. The Employer may at any time teton- hate th~s Plan. Plan ,"l doptlo~ Packa,qc Retain Tr u s t o f rh r I C'MA R r t ~ r c m c n Resolution No. FD99-001 Page 13 Ttust, April 1998 The Administ:rator may at any tune propose an amendment to the Plan by an instrument in writing transmitted to the Employer at least 30 days before the effective date of the amendment. Such amendment shall become effective unless, within such 30-day period, the Employer notifies the Administrator in writing that it disapproves such amend- ment, 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 Adminis- trator hereunder. Except as may be required to maintain the status of the Plan as an eligible cleferred compensation plan under section 457 of the Code or to comply with other applicable laws, no amendment or temnnation of the Plan shall divest any Participant of any rights with respect to compensation deferred before the date of the amendment or termination. Article XII. Applicable Law This Plan and Trust shall be construed under the laws of the state where the Employer is located and is established with the intent that it meet the requirements of an "eligible deferred compensation plan" under Section 457 of the Code, as amended. The provisions of this Plan and Trust shall be interpreted wherever possible in conformity witl~ the requirements of that section. Article Xlll. Gender and Number The masculine pronoun, ;vhenever used herein, shall include the feminine pronoun, and the singular shall include the plural, except where the context requires otherwise. 457 Pla. A dopt~on D e cla r a tio n o f Tr ~ s I ,,.f t h ~ Resolution No. FD99-001 Page 14 I (7 .Xl A ~ c I I r c m c n ! 7' r u s ~ , May 1 9 9 7 APPENDIX B DECLARATION OF TRUST OF THE ICMA RETIREMENT TRUST Article I. Name and Definitions Section 1.1 Name: The name of tilt, trust created heretw ~, the ICMA 1Ketirement Trust. Section 1.2 Definitions: Wherever they are used hereto. the following terms shall have the following respective meanings: (a) Bylaws. The bylaws referred to m Section 4.1 hereof. as amended from time to time. (b) Deferred Compensation Plan. A defe~ed compensauon plan established and maintained by a PuNic Employer for the pu~ose of providing retirement income and other defem?d benefits to its employees m accordance with the prows~on of section 457 of the Intem~ Revenue Code. (c) Employees. Those employees who pamcipate m Qualified Plans and/or 1)cl~rred Compensation Plans. (d) Employer Trust. A t~st created pursuant to an agreemeut between RC and a Pubhc Employer. or an agreement between RC and a Public Employer t~r admunstrauve serwces that ~s not a trust, in either case for the pu~ose of investing and adnunistenng the funds set aside bv such Employer m connection w~th its Deferred Compensation agreements w~th its employees or m connection with its Qu~ified Plan. (e) Investment Contract. A non-negotiable contract entered into by the ~etirement Trust with a financial restitution that provides for a fixed rate of return on ~nvestment. (0 ICMA. The International City/County Management Association. (g} ICMA Trustees. Those Trustees elected by the Pubhc Employers in accordance with the provisxons of Section 3.1(a) hereof, who are also members or forelet members of the Executive Board of ICMA. (h) RC Trustees. Those Trustees elected by the Pubhc Employe~ who~ in accordance with the provisions of Section 3. l(a) hereof, are Mso members or firenet members of the Board of I)~rectors of RC. (i) Internal Revenue Code. The Internal Revenue (;octc of 1986, as alnended. 0) Investn~ent Adviser. The Investment Adviser that enters into a contract with the t~ettrement Trust to provide advice w~th respect to investmeut of the Trust Prope~,. (k) Portfolios. The separate conmun0ed pools of investment established by the Invesm~ent Adviser to the l~etirement Trust. under the superv~sion of the Trustees, {br the pu~ose of providing investn~cnts for the Trust Propens'. (l) Public Employee Trustees. Those Trustees elected by the Public' Employers who, m accordance with the provision of Section 3.1 (a) hereof, are full-time employees of Pubhc Employers. (m) Public Employer Trustees. Public Employers who serve as tlistees of the Qualified Plans or Deferred Compensauon Plaus. (n) Public Employer. A unit of state or local government, or any agency or mstrnmentality thereof. that has adopted a Deferred Compensauon Plan or a Qtialified Plan and has executed this I)eclaratton of Tlist, (o) Qualified Plan. A plan that ~s sponsored by a Public Employer ibr the purpose of prowding reurement mconw to its emplosees and that sausfie~ the qualification requirements of Section 4(11 of the hiterred Revenue Code. (p) Public Employer Trust. A trust that is established by a Public Employer m connection with its Qualified Plan and that satisfies the requirements of Section 5(i)1 of the Internal Revenue ('.ode. or a trust established by a Public Employer in connecnon xxiti~ it, Deterred Compensation Plan and that satisfies the requiren~euts of Section 457(b) of the Internal Revenue Code. (q) RC. The International City Management Association Retirement Corporation. (r) Retirement Trust. The Trust created by this Declaration of ']'liSt. (s) Trust Property. The amounts held in the Retirement Trust as provided in Section 2.3. The Trust Propert5, shall include any income resulting from the investment to the amounts so held. (t) Trustees. The Public Employee Trustees, ICMA Trustees and t~.C' Trustees elected by the Public Employers to serve as members of the Board of Trustees of the iR. etlrement Trust. Article I!. Creation and Purpose of the Trust; Ownership of Trust Property Section 2.1 Creation: (a) The tl. enrement Trust was created by the execuuon of this Declaranon ofTlist by the imtial Trustees and Public Employers and ~s established with respect to each participating Public Employer by adoption of tlus Declaration of Trust. (b) The Retirement Trust is hereby expressly made a part of the apprupnate Qualified Plan or Deferred Compensation Plan of each Pubhc Employer that executes or has executed tlUS Declaration of Section 2.2 Purpose and Participation: (a) The purpose of the Renrement Trust is to provide for the cornmingled investment of funds held by the Public Employers m connecno,~ with their Deferred Compensauon and Qualified Plans. The Trust Properrs,' shall be invested in the Portfolios, in h~vestment Contracts. and in other investments recommended by Resolution No. FD99-001 Page 15 457 Plan Adoption Dcclarat~on of Tru~ t of tbc l) ackagc Rclain Documrnt ICMA Rttiremt, nt Trust, May 1997 the Investment Adviser under the supervision of the Board of Trustees. No part of the Trust Property will be invested m securities issued by Public Employers. (b) Participation in the Retirement Trust is limited to (0 peusiou and profit-shanng trusts which are maintained by Public Employers and that are exempt under section 501 (a) of the Internal P-,eveuue Code because the Qualified Plans related thereto quali~/under section 401(a) of the lnterual Revenue Code and (is) deferred compensation plans maintained by Pubhc Employers under Section 457 of the Intem',fi Revenue Code (and trusts ruaintained by such Public Employers m connection with such 457 plans). Section 2.3 Ownership of Trust Property: (a) The Trustees shall have legal ude to the Trust Property. The Trust Property shall be held as follows: (i) for the Public Employer Trustees for the exclusive benefit of the Employees: or (ii) in the case of a Deferred Compensauou Plan ruaintained by a Public Employer that has not established a Public Employer Trust for the plan, for the Public Employer as benefici~ owner of the plan's assets. (b) The portion of the corpus and income of the R. etirement Trust that equitably belongs to any Pubhc Employer Trust may not be used for or diverted to any purpose other than for the exclusv~'e benefit of the Employees (or their beneficiaries) who are entitled to benefits under such Public Employer Trust. (c) No employcr's Pubhc Employer Trust may assign any part of ~t~ equity or interest m the Renremeut Trust, aud any purported assigmnent of such equity or interest shall be ~,old. Article III. Trustees Section 3.1 Number and Qualification of Trustees: (a) The Board of Trustees shall consist of tone Trustees. Five of the Trustees shall be full-time employees of a l'ubhc Employer (the Pubhc Eruployec Trustees) who arc authorized by such Publ,c Employer to serve as Trustee. The remaining four Trustees shall c'ons~st of two persons who, at the time of electiou to the Board of'Trustees, art' nlenibers or foruler Inenlbers of the Executive Board oflCMA, and two persous who. at the rune ofelectioii. art' members or former members of the Board of Directors of One of the ICMA Trustees and oue of the RC Trustees shall. at the nine of election, be full-time employees of Pubhc Employers (b) No person may serve as a Trustee for more than two terms m any ten-year period Section 3.2 Election and Term: (a) Except for the Trustees appointed to fill vacancies pursuant to Section 3.5 hereof, the Trustees shall be elected by a vote of a majontT of the voting Public Employers in accordance with the procedures set forth in the By-Laws. ~) At the first elecuon of Trustees, three Trustees shall be elected for a term of three years, three Trustees shall be elected for a term of two years and three Trustees shall be elected for a term of one year. At each subsequent election, three Trustees shall be elected, each to serve for a tem~ of three years and until, his or her successor is elected and qualified. Section 3.3 Nominations: The Trustees who are full-nine employees of Public Employers shall serve as the Nominating Contourtee for the Public Employee Trustees. The Normnating Conmuttee shall choose candidates for Public Employee Trustee m accordance with the procedures set forth in the By-Laws. Section 3.4 Resignation and Removal: (a) Any Trustee may resign as Trustee (without need for prior or subsequent accounting) by an instrument m writing signed by the Trustee aud delivered to the other Trustees and such resignation shall be effective upon such delivery, or at a later date according to the terms of the instrument. Any of the Trustees ruay be removed fl0r cause. by a vote ofa majonty of the Public Employers. (b) Each Public Employee Trustee shall resign his or her position aq Trustee within 60 days of the date on which he or she ceases to be a ful.l-time employee ofa Pubhc Employer. Section 3.5 Vacancies: The temi of office of a Trustee shall tetonhate and a vacancy shall occur in the event of his or her death, resignation. reruoval. adjudicated incompetence or other incapac- ity to perfomi the duties of the orifice of a Trustee. In the case of a vacancy. the remaining Trustees sh'all appoint such person as they m their discretion shall see fit (subject to the hnutations set forth in tins Section). to serve for the unexpired portion of the tem~ of the Trustee who has resigned or otherwise ceased to be a Trustee. The appomm~eut shall be made by a wntten instrument signed by a ma. lonU' of-the Trustees. The person appointed must be the same type of'~mstec (i.e., Public Employee Trustee, ICMA Trustee or KC Trustee) as the person who has ceased to be a Trustee. An appomnncnt of a Trustee may be made m anticipation of a vacancy to occur at a later date by reason of retirement or reslgmation, provided that such appointment shall not become effective prior to such retirement or resignation. Whetlever a vacancy shall occur, until such vacancy is filled as provided m this Section 3.5, the Trustee~ m office, regardless of their number, shall have all the powers granted to the Trustees and shall discharge all the duties m~poscd upou the Trustees bs' ttus Declaration. A written ulstru- mcnt certifying the existence of a vacancy signed by a majori~, of the Trustee5 shall be conclusive evidence of the exJstence of such Section 3.6 Trustees Serve in Representative Gapacity: By exccunng this Declaration, each Public Employer agrees that the Pubhc Employee Trustees elected by the Public Employers are authonzed ro act as agents and representatives of the Public Employers collectively, t h rrt¢c~' 457 Plan Adopt~?h Resolution No. FD99-001 Page 16 Pa: k'agt Rctain Doeurn rn t ICMA Rcti,em('nl Trust, Ma)' 1997 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 carD, on its operatrans. Such power shall include. but shall not be limited to. the power to: (a) receive the Trust Property from the Public Employers, PuNic Employer Trustees or the trustee or aduunistrator ouder any Employer Trust; (b) enter into a contract with an hwestment Adviser pro~ ~dmg, among other things. for the establishment and operau(m or' tile Portfolios, selection of the Investment Contracts m which tile Trust Property may be invested, selection of the other,nvesm~ents for the Trust Property and tile payment of reasonable fbes to the Invesmlent Adviser and to any sub-mvesmlent adviser retained by the Investment Adviser: {c) review annually tile peffomlance of the Investment Adviser and appr~,ve annually the coutract wit}l such Investment Adviser: (d) ins cst and reinvest the Trust Propem. m tile Portfbhos. the Investment Contracts and in any other investment reconunended by the Invemnent Adviser, but not including securities tssued by Public Enrptoyers. provided that ira Public Employer has directed that its moines be rovested m one or more specified Porttbhos or in an Invesm~ent Contr.,. :. the Trustees of the lkeurement Trust shall invest: such nm,ues m accordance with such direcuons: (e) keep such portion of the Trust Propen3' m cash or cash balances as the Trustees, from time to ume. may deem to. be m the best interest of the P, etirement Trust created hereby wtthout habili~, for interest thereon; (0 accept: and retain for such time as they may deem advisable any secunues or ()tiler property received or acquired by them as Trustees hereunder~ whether or not such secunues or other propert3.' would normally be purchased as lnvesnnent hereunder; (g) cause any securities or other propens.' held as part of the Trust Property to be regnstered in the name of tile Reurement 7ru~t or Ill the name of a nominee, and to hold any lnvesmlents in bearer fom~, but tile books and records of the Trustees shall at all umes show that 'all such investments are a part of the Trust Prop,:rty: (h) make. execute, ackuowledge, and dehver any and all docun~ents of transfer and conveyance aud any and all other instrunlents that may be necessary or appropriate to carry out the poxv,:r:, hereto grailted; (i) vote upon any stock. boods. or other secunttcs: g~,'e gc~eral or special proxies or powers ofattoruev with or without po~x cr of subsntution: exercise all,,' conversion privileges. subscnpt~on nghts. or other options, and make any payments incidental thereto: oppose, or consent to. or otherwise participate m. corj),mtte reorganizations or to other changes afJ]:cting corporate seeurines. and delegate dlscret~ollaU' powers and pay any assesql~cnt, or charges m cosineetlon therekvlth: and generally exercise anv of the powers of an owner with respect to stocks. bonds. se, urltles or other property held as part of the Trust Property: (j) euter into contracts or arrangements for goods or services requ,red in counecnon with the operation of the 1Ketiremeut Trust, mcludiug. but not hmited to, contracts \vith custodians and contracts for the provision of adnm2strative services: (k) borrow or raise money for the purposes of the Retirement Trust m such amount, and upon such temls and conalmond. as the Trustees shall deem advisable, provided that tile aggregate amount of'such borrowings shall not exceed 30% of the value of the Trust Property. No person lending money to tile Trustees shall be bound to see the application of the money lent or to mqmre into its validity, expediency or propriety or an5, such borrowlug: (1} recur reasonable expenses as required for tile operation of the R. etlrement Trust and deduct such expenses from of the Trust Property: (m) pay expeoses properly allocable to the Trust Property incurred m connection with the Deferred Compensation Plans, Qualified Plans. or the Employer Trusts and deduct such expenses from that portion of the Trust Propen3' to which such expenses are properly allocable: (n) pay out of tile Trust Property all real and personal property taxes, income taxes and other taxes of any and all 'kinds winch, in the opinion of the Trustees, are properly levied, or assessed under exxsnng or future laws upon. or m 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 runes consistent w,th the temls ofth.is Declaration of Trust; (p) employ persons to make available interests ill the Retirement Trust to employers ehgnble to maintain a Deferred Compensation Plan under Secuon 457 or a Qualified Plan under Secuon 401 of the Internal Revenue Code; (q) ,ssue tile Annual Report of the iKetirement Trust. and the disclosure documents and other literature used by the Renrement Trust: (r) nl addition to conducting tile lnvestnlent program authorized m Sccuon 4.1(d), make loans. including the purchase of debt obhgat~ons. provided that all such loans shall bear interest at the current market rate; (~) contract for, and delegate any powers grauted 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 m paragraph* (b), (c) and (o) ofth~s Section 4.1 and may uot delegate any powers if such delegation \vould violate their fiduciaD' duties: (t) pro\'Mc for the tndenmificatton of the Officers and Trustees of the R. enrement Trust and purchase fiduciary insurance: (u) maintain books and records. including separate accouuts for each Pubhc Employer. Public Employer Trustee or Employer Trust and such addmonal separate accounts as are required under, and consistent w~th. the Deferred Compensation or Qualified lq;,n of each Pubhc Employer: and Resolution No. FD99-001 Page 17 457 Plan A do,vlton Pa, kagr Rt tarn D r c la r a t ~ ,, n o.1' 7'r u s t o./' I h c I C M A R c t t r ~ m e n t Oocurat'nl Tru st. ),fay 1997 (v) do all such acts, take all such proceedings, and exercise 'all such rights and privileges, although not specifically mentioned herein, as the Trustees may deeru necessary or appropriate to adnumster tile Trust Propert3, and to carD' out the purposes of the Retirement Trust. Section 4.2 Distribution of Trust Property: Dlstr/butlons of the Trust property shall be made to, or ou behalf of, the Pubh( Employer or Public Employer Trustee. in accordance with the temis of the Deferred Compensation 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 trustees or adnunistrators of any Eruployer Trust without ascer-- tanung whether such payments are in comp],ance with the provisions of the applicable Deferred Compensation or Qualified Plan or Eruployer Trust. Section 4.3 Execution of Instruments: The Trustees may unammousty' designate anT. one or more of the Trustees to execute any instrument or document on behalf of all, including but not hnuted to the signing or endorsement of any check and the s,~ung of any apphcations, insurance and other contracts, aud the action of such desq,mated 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 hereinbe- fore granted to the Trustees, the Trustees shall pedbrm all acts within tileit authority for tile exclusive purpose of provichug benefits for tile Public Employers iu connecnon with non-trusteed Deferred Compensation Plans and for the Public Employer Trust- ees, and shall perform such acts with the care, skill, prudence and dirgenee in the circumstances theu prevailing that a prudent person acting in a like capacity and familiar with such matters would use m the conduct of an enterpnse of a like character and with like aims. Section 5.2 Liability: The Trustees shall not be hable for any nustake ofjodgm~ent or other action takeu m good faith, and £or any action taken or ore,tied m reliauce in good faith upon the books of account or other records of the P, etirenlent Trust, upon the opiuion of counsel. or upon reports made to the Retirement Trust by any of its officers, employees or agents or by the lnvesnneut Adviser or any sub-mvestnlent adviser, accountant, appraiser or other expert or consuhant selected with reasouable care by the Trustees, offSeers or employees of the Retirement Trust. Tile Trustees shall also not be hable for any loss sustained by the Trust Property by reason of any invesnnent made m good faith and in accordance with the standard of care set forth nl Section 5.1. Section 5.3 Bond: No Trustee shall be obligated to gnve any bond or other secunty for the performance o£ any of his or her duties hereunder. Article VI. Annual Report to Shareholders The Trustees shall annu~y subnut to the Public Employ- ers and Public Employer Trustees a written report of the transac- nons of the Retirement Trust, including financial statements which shall be certified by independent public accountants chosen by the Trustees. Article VII. Duration or Amendment of Retirement Trust Section 7.1 Withdrawal: A Public Employer or Public Em- ployer Trustee may, at any time, withdraw froru this l~.etirement Trust by delivering to the Board of Trustees a written statement of withdrawal. In such statenlent, the Public Employer or Public Eruployer Trustee shall acknowledge that the Trust Property allocable to the Publit: Employer is derived from compensation cleferred by employees of such Public Employer pursuant to its Deferred Compensation Plan or from contributions to the ac- <ounts of Employees pursuant to a Qualafied Plan, and shall desit,mate the financial institution to which such property shall be transferred by the Trustees of the Retirement Trust or by the trustee or admimstrator under an Employer Trust. Section 7.2 Duration: The Retirement Trust shall continue until ternunated by the vote of a majority of the Pubhc Employers, each casung one vote. Upon ternunation, all of the Trust Property shall be paid out to the PuNic Employers, Pubhc Employer Trustees or the trustees or adnumstrators of the Employer Trusts, as appropnate. Section 7.3 Amendment: The Retirement Trust may be amended by the vote ofa majonty of the Public Employers, each casting ont.' vote. Section 7,4 Procedure: A resolution to temfinate or amend the Retirement Trust or to remove a Trustee shall be submitted to a vote of the Pubhc Employers if5 (i) a majonty of the Trustees so direct, or; (ii) a petition requesting a vote signed by not less than 25 percent of the Public Eruployers, zs subnutted to the Trustees. Article VIII. Miscellaneous Section 8.1 Governing Law: Except as otherwise required by state or local law, this Declaration of Trust and the Retireruent ~rust hereby created shall be construed and regulated by the laws of the I)lsmct of Columbia. Section 8.2 Counterparts: This Declaration may be executed by the Pubhc Employers and Trustees m two or more counterparts, each ofw}uch shall be deemed an origanal but all of which together shall coustitute one and the same instrument. Fi/tm,