HomeMy WebLinkAboutRES 96-05RESOLUTION NO.96-05
A RESOLUTION OF ME MAYOR AND CITY COUNCIL OF THE CITY OF APACHE
JUNCTION,ARIZONA,ESTABLISHING FOR THE CITY OF APACHE JUNCTION A
DEFERRED COMPENSATION PLAN TO BE ADMINISTERED BY THE ICMA RETIREMENT
CORPORATION.
WHEREAS,the City of Apache Junction (hereinafter referred to as the
"City")has employees rendering valuable services;and
WHEREAS,the establishment of a deferred compensation plan for such
employees serves the interests of the City by enabling it to provide reasonable
retirement security for its employees, by providing increased flexibility in its
personnel management system,and by assisting in the attraction and retention of
competent personnel;and
WHEREAS,the City has determined that the establishment of a deferred
compensation plan to be administered by the ICMA Retirement Corporation serves
the above objectives;and
WHEREAS, the City desires that a deferred compensation plan be administered
by the ICMA Retirement Corporation,and that 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:
SECTION 1.That the City hereby adopt the deferred compensation plan (the
"Plan")in the form of the ICMA Retirement Corporation Deferred Compensation
Plan,referred to as Appendix A.
SECTION 2.That the City hereby execute the Declaration of Trust of the ICMA
Retirement Trust,referred to as Appendix B.
SECTION 3.That the City Manager 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 City;any
required votes under the ICMA Retirement Trust;may delegate any administrative
duties relating to the Plan to appropriate departments;and is authorized to
execute all necessary agreements with ICMA Retirement Corporation incidental to
the administration of the Plan.
SECTION 4.That the City's participation shall be subject to the provisions of
Ordinance No.884 of the City of Apache Junction,referred to as Appendix C.
RESOLUTION NO.96-05
PAGE 1 OF 2
PASSED AND ADOPTED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION,
ARIZONA,THIS 5TH DAY OF MARCH ,1996.
SIGNED AND ATTESTED TO THIS 6TH DAY OF MARCH ,1996.
Douglas toleman
Mayor
ATTEST:
Kathleen Connelly
City Clerk
AMM _A ,T4 /hAl-spftNyity j p 1-3,11:114
/b/' /L/ 17I1v / AndI'WY v Ilf 'RUNIICIlennJ.161MDU
City/Attorney
RESOLUTION NO.96-05
PAGE 2 OF 2
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APPENDIX A
DEFERRED COMPENSATION PLAN
ARTICLE I.INTRODUCTION
-The Employer hereby establishes the Employer's Deferred Compensation Plan, hereafter 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 „ry.
2.01 Account: The bookkeeping account maintained for each Participant reflecting the cumulative amount of the
Participant's Deferred Compensation.including any income, gains, losses, or increases or decreases in market
value attributable to the Employer's investment of the Participant'vi Deferred: Compensation,and further
reflecting any distributions to the Participant or the Participant's Beneficiati-andrany fees or expenses charged
-against such Participant's Deferred Compensation....
2.02 Administrator: The person or persons named to carry out certain nondiscretionary administrative functions
tinder the Plan, as hereinafter described. The Employer may remove arty 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 upori:60 days' advance notice in writing to the Employer, in which
case the Employer shall name another person or persiOni to act as Administrator.
2.03 Beneficiary: The person or persons dislima,ct.byn.the Participant in his Joinder Agreement who shall
receive any benefits payable hereunder in theMient'tif -the Participant's death. In the event that the Participant
names two or more Beneficiaries, each Benefidary hall 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 Agreerni...nt,..if the Designated Beneficiary predeceases the Participant,or if the
designated Beneficiary does not survive t-h#farticipant for a period of fifteen (15)days, then the estate of the
Participant shall be the Beneficiary."
2.04 ereferred 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 Employer agrees to credit to a
Participant's AccourtL •-
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.
Includible Compensation: The amount of an Employee's compensation from the Employer for a taxable year
that is attributable to services performed for the Employer and that is includible in the Employee's gross income
for the taxable year for federal Income tax purposes; such term dues 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 frail gross income for federal income tax purposes.Includible Compensation shall be determined
without regard to any community property laws.
2.07 Joinder Agreement:A n agreement entered into between an Employee and the Employer, including any
amendments or modifications thereof. Such agreement shall fix the amount of Deferred Compensation, specify a
preference among the investment alternatives designated by the Employer, designate the Employee's Beneficiary
or Beneficiaries, and incorporate the terms, conditions, and provisions of the Plan by reference.
2.08 Normal compensation:The amount of compensation which would be payable to a Participant by the
Employer for a taxable year if no Joinder Agreement were in effect to defer compensation under this Plan.
2.09 isIerenal Retirement Age:Age 70.1/2, unless the Participant has elected an alternate Normal Retirement
Age by written instrument delivered to the Administrator prior to Suparatiu7 from Service. A Participant's Normal
Retirement Age determines the period during which a Participant may utilize the catch-up limitation of Section
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A Terrri H T MATKIICI-V A TIfIT/
.3.03 Duties of the Employer:TheH:Ernployer shall have the authority to make all discretionary decisions
affecting the rights or benefits of PartiaParits which may be required in the administration of this Plan.
3.02 Duties of Administrator:Th .:.?tetininistrator, as agent for the Employer, shall perform nondiscretionary
administrative functions in cortnectiOn;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
F.mployer in accordance with provisions of this Plan...
5.02 hereunder. Once a Participant has to any extent utilized the cutch-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 under the Employer's basic retirement
plan covering the Participant and may not be later than the date the Participant will attain age 704/2. If a
Participant continues employment after attaining age 70-1/2, not having previously elected alternate Normal
Retirement Age,the Participant's alternate Normal Retirement Age shall not be later than the mandatory
retirement age, if any, established by the Employer, or the age at which the Participant actually separates from
service if the Employer has no mandatory retirement age. If the Participant will not become eligible to receive
benefits under te 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 704/2.;...•'
210 Partic:nant Any Employee who has joined the Plan pursuant to the requirernentsof Article TV.
2.11 Mar •ear: The calendar year.
2.12 Retirement: The first date upon which both of the following shall hay occurred with respect to a participant:
Separation from Service and attainment of age 65.
2.13 Separation form Service: Severance of the Participant's employrnent iiftli;tite Employer which constitutes
a "separation form service" with the meaning of Section 402(e)(4.XA)(lli) of the Cede. In general a Participant shall
be deemed to have severed his employment with the Employer for piirposes of this Plan when, in accordance with
the established practices of the Employer, the employment relitionship is considered to have actually terminated.
In the case of A Participant who is an independent contractor •Ofihe Employer, Separation form Service shall be
deemed to have occurred when the Participant's.contract unclei;4hich services are performed has completely
expired and terminated, there is no foreseeable possibility that the Employer will renew the contract or enter into 3
new contract for the Participant's services,andisnotantitipated that the Participant will become an Employee of
the Employer.:N
ARTICLE IV.PARTICIPATION IN THE PLAN
4.01 Initial PartIclpationrAn Employee may become a Participant by entering into a Joinder Agreement prior to
the beginning of the calendar month in which the Joinder Agreement is to become effective to defer
compensation not yet earned.
4.02 Amendment of Joinder Agreement: A Participant may amend an executed Joinder Agreement to change:, -
the amount of compensation not yet earned which is to be deferred (including the reduction of such future
deferrals to zero) or to change his investment preference (subject to such restrictions as may result from the
nature of terms•of any Investment made by the Employer). Suds amendment shall become effective as of the
beginning of the calendar month commencing after the date the amendment is executed. A Participant may at
any time amend his Joinder Asreement to change the designated Beneficiary,and such amendment shall
berome effective immediately.
71CLE V.LIMITATIONS O N DEFERRALS
5.,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 33-1/3 percent of the Participant's
Includible Compensation for the taxable year. This limitation will ordinarily be equivalent to the lesser of 57,500.00
or 25 percent of the Participant's Normal Compensation.
5.02 Catch -Up Limitation:For each of the last three (3)taxable years of a Participant ending before his
attainment of Normal Retirement Age, the maximum amount of Deferred Compensation shall be the lesser of:
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(1) S15,000 or (2) the sum of (1) the Nonnai Limitation for the taxable year, and (it) 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 (it) compensation (if any)deferred under the Plan (or such
other plan) was subject to the deferral limitations set forth in Section 5.01
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 57,500.00:.(or such greater amount
allowed under Section 5.02 of the Plan), less any amount excluded from gross incomeiinder section 403 (b), 402
(a)(8), or 402 (h)(1)(B) of the Code,or any amount with respect to which a deductitirtks,allowable by reason of a
contribution to an organization described in section 501(c)(1R) of the Code.•.'.47
ARTICLE VI. INVESTMENTS AND ACCOUNT VALUES
6.01 Investment of Deferred Compensation: All investments of Participant's Deferred Compensation made
by the Employer, including all property and rights purchased with such-amounts:1nd all income attributable
thereto, shall be the sole property of the Employer and shall not be held iriirtistAir Participants or as collateral
security for the fulfillment of the Employer's obligations undertht_Plan. Such property shall be subject to the
claims of general creditors of the Employer, and no Participant' or:Beneficiary shall have any vested interest or
secured or preferred position with respect to such property or have'any claim against the Employer except as a
general creditor.
6.02 Crediting of Accounts: The Participant's Acci4iint shall refleet the amount and value of the investments or
other property obtained by the Employer throughttie..lnvestment of the Participant's Deferred Compensation. It
is anticipated that the Employer's investments,syititqespect to a Participant will conform to the investment
preference specified in the Participant's Jointier nent,•but nothing herein shall be construed to require the
Employer to make any particular investment orapartiiipant's Deferred Compensation. Each Participant shall
receive periodic reports, not less frequently than annually, showing the then current value of his Account
6.03 Transfers: (a) incoming Trans ers: Airansfer may be accepted from an eligible deferred compensation plan
maintained by another employer ariatciedifiel-to a Participant 'S Account under the Plan if (i) the Participant has
separated from service with that employer andbecome an Employee of the Employer, and (ii) the other
employer's plan provides that such transfer will be made. The Employer may require such documentation from
the predecessor. plan as 4: 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: 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. Arty such transferred
amount shall be treated as-is'ileferral subject to the limitations of Article V, except.that, for purposes of applying
the limitations of Sections 5-01 .and 5.02, art amount deferred during any taxable year under the plan from which
the transfer is accepted shall be treated as if it has been deferred under this Plan during such taxable year and
Compensation paid by the transferor employer shall be heated as 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 changed to a Participant's Account under this Plan, 11 (1) 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 Inch 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.
6.04 Employer Liability: In no event shall the Employer's liability to pay benefits to a Participant under Article
VI exceed the value of the amounts credited to the Participant's Account; the Employer shall not be liable for
losses arising from depredation or shrinkage in the value of any investments acquired under this Plan.
ARTICLE VII. BENEFITS
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7.01 Retirement Benefits And Election on Separation horn Service: Except as otherwise provided in this Article VI
the distribution of a Participant's Account shall commence as of April 1 of the calendar year after the Plan Year c
the Participant's Retirement, and the distribution of such Retirement benefits shall be made in accordance wit
one of the payment options described in Section 7.02. Notwithstanding the foregoing, the Participant ma
irrevocably elect within 60 days following Separation form Service to have the distribution of benefits corrunenc
on a fixed determinable date other than that described In the preceding sentence which is at least 60 days afte
the date such election is delivered in writing to the Employer and forwarded to the Administrator, hut not late
than April 1 of the year following the year of the Participant's Retirement or attainment of age 70-1/2, whichever i
later.
7.02 Payment Options: As provided In'Secdons 7.01, 7.04 and 7.05, a Participant or Desteff—ciary may elect to hay.
value of the Participant's Account distributed in accordance with one of the following:payment options, providP •••
that such option is consistent with the limitations set forth in Section 7.03..
(a) Equal monthly, quarterly, semi-annual or annual payments in an amounfchaseirby the Participan,
continuing until his Account is exhausted;••••
(b) One lump -sum payment;
(c) Approximately equal monthly, quarterly, semi-annual or annual payments,calculated to continue fo•a period certain chosen by the Participant.•
(d)Annual Payments equal to the minimum distributions required under Section 401(a)(9) of the Cod,
over the life expectancy of the Participant or over. theilife expectancies of the Participant and hi:
Beneficiary.F.,•44„
••••••••••(e) Payments equal to payments made by: -the issuer of retirement annuity policy acquired by tin
Employer.'1;•=1;..,
(f)Any other payment option eleitte4tlaY.:t4;;Partic-ipant and agreed to by the Employer ant
Administrator, provided that such optiOrintuse;provide for substantially nonincreasing payments for an:
period after the latest benefit commencenients date under Section 7.01.
A Participant's or Beneficiary/I:election of a payment option must be made at least 30 days before tin
payment of benefits is to cornmence'l1i Participant or Beneficiary fails to make a timely election of a paymen
option, benefits shall be paid monthltiuiderOPtion (c) above for a period of five years.
7.03 Limitation on Options: No payment option may be selected by a Participant or Beneficiary under Section:
7.02, 7.04, or 7.05 unless it erStisfies the requirements of Sections 401(a)(9) and 457(d)(2) of the Code, including tha
payments commencing before -the death of the Participant shall satisfy the incidental death benefits requiremete
under section 457(d)(2)(B)(1)(1):-.Unless otherwise elected by the Participant, all determinations under Section
401(a)(9) shall be made without recalculation of life expectancies.•
7.04 Post -Retirement Death Benefits: (a) Should the Participant die after he has begun to receive benefit
under 1 payment 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 payment option that is available under Section 7.02 wit).--•
60 days of the Participant's death. Any different payment option elected by a Beneficiary under this section nit
provide for payments at a rate that is at least as rapid under the payment option that was applicable to the
Participant. In.no event shall the Employer or Administrator be liable to the Beneficiary for the amount of any
payment made in the name of the Participant before the Administrator receives proof of death of the Participant.
(b) If the designated Beneficiary does not continue to live for the remaining period of payments under the
payment option, then the commuted value o!any remaining payments under the payment option shall be paid in
a lump sum to the estate of the Beneficiary. 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.
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 commencint
within the 30 -clay period commencing on the 91st day after the Participant's death, unless the Beneficiary elects a
different fixed or determinable benefit commencement 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 (U) if the Beneficiary is the Participant's spouse, December 31 of the year in which the
Participant would have attained age 70-1/2
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(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 $3500. A
Beneficiary shall be treated as if 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 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 sum. 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 emergencfikeitrs,.a.rarliciPartt may
apply to the Employer to receive that part of the value of his Account that is teasonab1y'4needeci to satisfy the
emergency need.11 such an appLication is approved by the Employer, the Participant shall be paid only such
amount as the Employer deems necessary to meet the emergency need, but payment shall not be made to the
extent that the financial hardship may be relieved through cessation of deferral under.the 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 illneg;,aeddent, or disability of the Participant or of a
dependent (as defined in section 152(a) of the Code)of the PariiCipant, loss of the Participant's property due to
casualty, or other similar and extraordinary unforeseeable circurriatances arising as a result of events beyond the
control of the Participant.The need to send A Participtint's child to college or to purchase a new home shall not be
considered unforeseeable emergencies. The -determination as to whether such an unforeseeable emergency
exists shall be based on the merits of each indiVkitira.ease:Z:.',i.
7.07 Transitional Rule for Pre -1989 Benefit Elektionsi In the event that, prior to January 1 1989, a Participant
or Beneficiary has co mmenced receiving benefits under a payment option or has irrevocably elected a payment
option or benefit commeneementL....ciate,then that payment option or election shall remain in effect
notwithstanding any other provision of the Plan.
ARTICLE VIII,NON -ASSIGNABILITY
8.01 I n 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 anckrights are expressly declared to be non -assignable and non -transferable.
•'-8.02 Domestic Relations Orders: (a)Allowance of Transfers:To the extent required under final judgement,
decree,or order (including-approval of a property settlement agreement) made pursuant to a state domestic
relations jaw, 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
shall 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 stud' 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 adihorize any amount to be distributed under the Plan at a time or in a form that is not permitted
under Section 457 of the Code. Arty Payment made to a person other than the Participant pursuant to this Section
shall be reduced by required income 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 gess income of the Participant for
withholding 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 spouse, or child
pursuant to paragraph (a)of the Section.No such transfer shall be effectuated unless the Employer or
Administrator 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 in which (i)
the Employer ar Administrator has been served with legal process or otherwise joined in 3 proceeding relating to
such transfer, (ii) the Participant has been notified of the pendency of such proceeding in the manner prescribed
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by the law of the jurisdiction in which the proceeding is pending for service of process in such action or by mail
from the Employer or Administrator to the Participant's last known mailing address, and MO the Participant fails to
obtain an order of the court in the proceeding relieving the Employer or Administrator from the obligation to
comply with the judgment, decee,or order.
(c) Participation in Legal Proceedings: The Employer and Administrator shall not be obligated to defend
agairtst or set aside any judgment, decree,or order described In paragraph (a) any legal order relating to the
garnishment of a Participant's 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 Employer or Administrator to 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 Participant. In the course of any proceed'ing relating to divorce,
separation, or child support, the Employer and Administrator shall be authorized to.cliseloae information relating.
to the Participant's Account to the Participant's spouse,former spouse,oreehild .(including the legal
representatives of the spouse, former spouse, or child), or to a court.• '''‘"
ign,0?"
ARTICLE IX.RELATIONSHIP T O OTHER PLANS AND EMPLOYMENT AGREEMENTS
This plan serves in addition to any other retirement, pension, or benefit plan or system presently in existence
or hereinafter established for the benefit of the Employer's employees, antil.partiCipation hereunder shall not
affect benefits receivable under any such plan or system. Nothing containekin this Plan shall be deemed to
constitute an employment contract or agreement between .anyYparticipant and the Employer or to give any
Participant the right to be retained in the employ of the Employe;r. Nor 6 1-ta II anything herein be construed to
modify the terms of any employment contract or agreement behyeen a Participant and the Employer.
ARTICLE X.AMENDMENT O R TERMINATIOWOF PLANO'
•The Employer may at ant time amend this Plan Foirided that it trartsmits such amendment in writing to the
Administrator at least 30 days prior to the effeetiVe.Oate Of the amendment. The concent of the Administrator shall
not be required in order for such amendmeniici ..b-edirm"1 effective, but the Administrator shall be under no
obligation to continue acting a s Administrator heriandeiff it disapproves of such amendment. The Employer may
‘v!n.at any time terminate this Plan.• ,
The Administrator may at ariyAmei.,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 amendment,in which case such amendment shall not become effective. In the event of such
disapproval, the Administrator shall be wider no obligation to continue acting as Administrator hereunder. if this
Plan document constitutes .an•”-iendment 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 elicit .through December 31, 1988.
Except as may be required to maintain the status of the Plan as an eligible deferred compensation plan under
section 457 of the Code or to comply with other applicable laws, no amendment or termination of the Plan shall
divest arty Participant of any rights with respect to compensation deferred 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 meet the requirements of art "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 XII.GENDER AND NUMBER
The masculine pronoun, whenever used herein, shall include the feminine pronoun, and the singular shall
include the plural, except where the context requires otherwise.
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APPENDIX B
DECLARATION OF ICMA RETIREMENT TRUST
ARTICLE 1.NAME DEFINITIONS
1.1 Name: The Name of the Trust, as amended and restated hereby, is the 1CMA Retirement Trust.
1.2 Definitions: Wherever they are used herein,the following terms shall have the following respective
meanings:
(a)By -Laws..The By -Laws referred to in Section 4.1 hereof, as amended from time to time.
(b)Deferred Compensation Plan.A deferred compensation plan establiihed and maintained by a
Public Employer for the purpose of providing retirement income and 'othe4eferreti 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.
;A+(d)Employer Trust..A trust created pursuant to an agreement bei-tiyeen•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 by the Retirement Trust with insurance
companies that provides for a guaranteed rate of retuiniiiinvestments made pursuant to such contract.
ICMA. The International City Management Association.
(g)ICMJURC Trustees.Those Trustees elieted.by the Public Employers who, in accordance with the
provisions of Section 3.1(a) hereofoiriaiss_iiniitibers, or former members, of the Board of Directors of
ICtviA or RC.
(h)Investment Adviser.The Investment Adviser that enters into a contract with the Retirement Trust
to provide advice with resper4,to investment of the Trust Property.
(I)Portfolios.The Portfolios 4d:investment established by the Investment Adviser to the Retirement
Trust, under the supervisittliottliFtrustees, for the purpose of providing investments for the Trust
Property.
(I)Public Employee Trustees.Those Trustees elected by the Public Employers who, in accordance
with the prc!vis!on of Section 3.1(a) hereof, are full-time employees of Public Employers.
(k) Public Employer Trustees. Public Employers W ho 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.
On/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.
(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
Trustees in connection with Deferred Compensation Plans and on behalf of the Public Employers in
connection with Deferred Compensation Plan.s and on behalf of the Public Employer Trustees of the
exclusive benefit of Employees pursuant to Qualified Plans.The Trust Property shall include any income
resulting form the investment to the amounts so held.
(q) Trustees.The Public Employee Trustees and ICMA/RC Trustees elected by the Public Employers to
serve as members of the Board of Trustees of the Retirement Trust.
ARTICLE 11.CREATION AND PURPOSE OF THE TRUST; OWNERSHIP OF TRUST
PROPERTY
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2.1 Creation:The Retirement Trust is created and established by the execution of this Declaration hy the
Trustees and the Public Employers.
2.2 Purpose:The purpose of t!•Retirement Trust is to provide for the commingled investment of funds held by
the Public Employers in connec with their Deferred Compensation and Qualified Plans.The Trust Property
shall be invested in the Portfolic:. i aranteed investment Contracts, and In other investments 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.
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 portion of the Trust Property allOable to the Deferred
Compensation Plans. The portion of the Trust Property allocable to the Qualified Plans btiallbe held for the Public .
Employer Trustees for the exclusive benefit of the Employees.•:•:"
ARTICLE III TRUSTEES • ...•
3.1 Number and Qualification of Trustees. (a)The Board of Trustees shall consist of ten Trustees.Seven of
the Trustees shall be full-time employees of a Public Employer (the Public...Employee Trustees) who are authorized
by such Public Employer to serve as Trustee. The remaining three Trustees Shall consist of one person who, at the
time of election to the Board of Trustees, is a member or former member a the .Briard of Directors of ICMA (the
ICMA Trustee); one person who, at the time of election, is a member or formermember of the Board of Directors
of RC (the RC Trustee); and the President of the ICMA Retirement Trust, who will serve as an ex -officio non -voting
Trustee.
(b)Other than the Trust President who serves as a non -voting ex -officio Trustee, no person may serve as a
Trustee for more than two terms in any lifteen-yearyeriod.
3.2 Election and Term.(a) Except for the Trustees apixiinted to fill vacancies pursuant to Section 33 hereof. the
Trustees shall be elected by a vote of a msjarity.ef..,the,Public Employers in accordance with the procedures set
forth in the By -Laws. (b)Trustees shall be vleCteiVfOr three year terms in accordance with the order and
procedures set forth in the By -Laws.
3.3 Nominations:The Nominaiing,Corrunittee for the Public Employee Trustees shall consist of the Chairrnan of
the Board of Trustees, the President'anhe.Trust, and two Public Employee Trustees selected In accordance with
the procedures set forth in the By -Laws. The Miminaring Committee shall choose candidates for Public Employee
Trustees also in accordance with the proeedures set forth in the By -Laws.
3.4 Resignation and:Reinova I. (a)Any Trustee may resign as Trustee (without need for prior or subsequent
accounting) by an in.strurrierseiss.writing signed by the Trustee and delivered to the President or Secretary of the
Trust, or to the Chairman of the Board of Trustees.Such resignation shall be effective upon such delivery, or at a
later date according to the .terms of the instrument.Any Trustee, except for the ex -officio Trustee, may be
removed for cause by a vote of 4 majority of the Public Employers. (b)Each Public Employee Trustee shall resign
his or her position as Trustee within sixty days of the date on which he or she ceases to be a full-time employee of a
Public Employer.•
3.5 Vacancies:The term of office of a Trustee shall terminate and a vacancy shall occur in the even of the death,..
resignation, removal, adjudicated incompetence or other incapacity to perform the duties of the office of a'•
Trustee.in the case of a vacancy, the remaining Trustees shall appoint such person as they in their discretion
shall see fit (subject to the limitations set forth in this Section), to serve for the unexpired pordon of the term of the
Trustee who has resigned or otherwise ceased to be a Trustee.The appointment shall be made by a written
instrument signed by a majority of the Trustees.The person appointed must be the same type of Trustee (i.e.
Public Employee Trustee or ICMA/RC Trustee) as the person who has ceased to be a Trustee.An appointment of
a Trustee may be made in anticipation of a vacancy to occur at a later date by reason of retirement or resignation,
provided that such appointment shall not become effective prior to such retirement or resignation.Whenever a
vacancy in the number of Trustees shall occur, until such vacancy is filled as provided in this Section 3.5, the
Trustees in office, regardless of their number, shall have all the powers granted to the Trustees and shall
discharge all the duties imposed upon the Trustees by this Declaration.A written instrument certifying the
existence of such vacancy signed by a majority of the Trustees shall be conclusive evidence of the existence of
such vacancy.
3.6 Trustees Serve in Representative Capacity:By executing this Declaration,each Public Employer agrees
that the Public Employee Trustees elected by the Public Employers are authorized to act as agents and
representatives of the Public Employers collectively.
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,.
ARTICLE IV.POWERS OF TRUSTEES
4.1 General Powers:The Trustees shall have the power to conduct the business of the Trust and to carry on its
operations.Such power shall include, but shall not be limited to, the power to:
•(a) receive the Trust Property from the Public Employers, Public Employer Trustees or other Trustee of any
Employer Trust;
(b) enter into a wntract with an investment Adviser providing, among other things, for the establishment and
operation of the Portfolios, selection of the Guaranteed Investment Contracts in which the Trust Property may be
invested, selection of the other investments for the Trust Property and the payment of reasonable fees to the
Investment Adviser and to any sub -investment adviser retained by the Investment Adviser;
. s(c) review annually the performance of the investment Adviser and approve anniaallysthe contract with such
Investment Adviser;
(d) invest and reinvest the Trust Property in the Portfolios,the Guaranteed Interest Con ds and in any other
investment recommended by the Investment Adviser, but not including securities issued by Public Employers,
provided that if a Public Employer has directed that its monies be -toyested in specified Portfolios or in a
Guaranteed Investment Contract, the Trustees of the Retirement Trust shill invest'such monies in accordance
with such directions;t,17
(e) keep such portion of the Trust Property in cash or cash balances as the Trustees, from time to time, may
deem to be in the best interest of the Retirement Trust created hereby without liability for interest thereon;
(f) accept and retain for such time as they may deem advitrible any securities or other property received or
acquired by them as Trustees hereunder, whether.,or not such iii-eUrities or other property would normally be
purchased as investment hereunder;
•";s•,.(g)cause any securities or other property ..tieldeSpArtof :the Trust Property to be registered in the name of the
Retirement Trust or in the name of a nomineeNi4thto;‘haa any investment in bearer from, but the books and
records of the Trustees shall at all times show tfisaijOich'investrnents are a part of the Trust Property;
(h)make,execute, acknowledge,and deliver any and all documents of transfer and conveyance and any and
all other instruments that may be ii*eriSary or appropriate to carry out the powers herein granted;
s:4t(i) vote upon any stock, bonds, oepiterSecurities;give general or special proxies or pots ers of attorney with or
without power of substitutionxxercise,itty conversion privileges, subscription rights, or other options, and make
any payments incidentalAhereto; oppose. or consent to, or otherwise participate in, corporate reorganizations or to
other changes effecting-Corporate securities, and delegate discretionary powers and pay any assessments or
charges in connectiOn,therewith;and generally exercise any of the powers of an owner with respect to stocks,
bonds securities or otherproperty held as part of the Trust Property;
(j)enter into contracts 'or arrangements for goods or services required in connection with the operation of the
Retirement Trust, including, but not limited to, contracts with custodians and contracts for the provision of
administrative services;
(k) borrow or raise money for the purposes of the Retirement Trust in such amount, and upon such terms
and conditions, as the Trustees shall deem advisable, provided that the aggregate amount of such borrowings
shill not exceed 30% of the value of the Trust Property. No person lending money to the Trustees shall be bound
to see the application of the money lent or to inquire into its validity, expediency or propriety or any such
borrowing;
(1)incur reasonable expenses as required for the operation of the Retirement Trust and deduct such
expenses from of the Trust Property.
(m)pay expenses properly allocable to the Trust Property incurred in connection with the Deferred
Compensation Plans.Qualified Plans, or the Employer Trusts and deduct such expenses front the portion of the
Trust Property to whom such expenses are properly allocable;
(n)pay out of the Trust Property all real and personalproperty taxes, income taxes and other taxes of any and
all kinds which, in the opinion of the Trustees, are properly levied, or assessed under existing or future laws upon,
or in respect of, the Trust Property and allocate any such taxes to the appropriate accounts;
(o)adopt, amend and repeal the By -Laws, provided that such By -Laws are at all times consistent with the
terms of this Declaration of Trust;
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CO employ persons tc)make available interest in the Retirement Trust to employers eligible to maintain
Deferred Compensation Plan under Section 457 or a Qualified Plan under Section 401 of the Internal Revenue
Code, as amended;
•(qlissue the Annual Report of the Retirement Trust, and the disclosure documents and other literature used
by the Retirement Trust;
make loans, including the purchase of debt obligations, provided that all such loans shall bear interest at
the current market rate.
Cs) 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 nut delegate any powers if such delegations would violate
their fiduciary duties;.• P •
(I)provide for the indemnif:cation of the Officers and Trustees of the Retirement•Teust and purchase
Fiduciary insurance;
Cu) 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 proceedings, and exercie 'all such rights and privileges, although no
specifically mention herein, as the Trustees ma y deem necessary or appropriate to administer the Trust Property
and to carry out the purposes of the Retirement Trust.•
4.2 Distribution of Trust property: Distributions of the Trust property shall be made to, or on behalf of, the
Public Employer or Public Employer Trustee, in aciOrdance with the terms of the Deferred Compensation Plans,
Qualified Plans or Employer Trusts.The Trusteeiiif the .Retirement Trust shall be full protected in making
payments in accordance with the directions Of tli Pttblid EhiPloyers, Public Employer Trustees or other Trustee of
the Employer Trusts without ascertaining whether_ siielepayments are in compliance with the provision of the
Deferred Compensation or Qualified Plans,or theigteernents creating the Employer Trusts.
4.3 Execution of Instruments:::Thl.tTrustees may unanimously designate any one or more of the Trustees to
execute any instrument or doeumentr:Ohbehalf of all, including but not limited to the signing or endorsement of
any check and the signing of any rifiplICatiOrti, 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.Otherwise, such actions
and responsibili ties are delegated to the officers of the Trust, or there designees.
ARTICLE V. DUTY'OFCARE AND LIABILITY OF TRUSTEES
5.1 Duty of Care:In exercising the powers hereinbefore granted to the Trustees, the Trustees shall perform all
acts within their authority -fin -the exclusive purpose of providing benefits for the Public Employers in connection
with Deferred Compensation Plans and Public Employer Trustees pursuant to Qualified Plans, and shall perform
such acts with the care , skill prudence and diligence in the circumstances then prevailing that a prudent person
acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like
character and with like aims.
5.2 Liability: The Trustees shall not be liable for any mistake of judgment or other action taken in good faith, and
for any actionjaken 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 Investment Adviser or any sub -investment adviser, accountants, appraisers or other
experts or consultant selected with reasonable care by the Trustees, officers or employees of the Retirement Trust.
The Trustees shall also not be liable for any loss sustained by the Trust Property by reason of any investment made
in good faith and in accordance with the standard of care set forth lit Section 5.1
5.3 Bond: No Trustee shall be obligated to give any bond or other security for the performance of any of his or her
duties hereunder.
ARTICLE VI. ANNUAL REPORT TO SHAREHOLDERS
The Trustees shall annually submit to the Public Employers and Public Employer Trustees a written report of
the transactions of the Retirement Trust, including financial statements which shall be certified by independent
public accountants chosen by the Trustees.
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ARTICLE VII DURATION OR AMENDMENT OF RETIREMENT TRUST
7.1 Withdrawal: A Public Employer or Public Employer Trustee may, at any time, withdraw from this Retirement
Trust by delivering to the Board of Trustees a written statement of withdrawal.In such statement, the Public
Employer or Public Employer Trustee shall acknowledge that the Trust Property allocable to the Public Employer
is derived from compensation deferred by employees of such Public Employer pursuant 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..
7.2 Duration;The Retirement Trust shall continue until terminated by the vote of. a..majority of the Public
Employers, each casting one vote.Upon termination, all of the Trust Property shall:bgpatd out to the Public
Employers. Public Employer Trustees or the Trustees of the Employer Trusts, as approOriate.4'.1
7.3 Amendment: The Retirement Trust may he amended by the vote of a majority of file public Employers, each
casting one vote.„.
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 Employers if: (i) a majority of the Trustedso directmr; (ii) a petition requesting a
vote signed by not less that 25% of the Public Employers, is submitted to theIlustee&',
ARTICLE VIII MISCELLANEOUS
8.1 Governing Law; Except as otherwise required by state, of local law, this Declaration of Trust and the
Retirement Trust hereby created shall be construed and regulatedfiy the laws of the District of Columbia.
8.2 Counterparts: This Declaration may be executed by thelUblic 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.
1"
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