HomeMy WebLinkAboutRES NO 155-92RESOLUTION NO.155-92
A RESOLUTION ADOPTING
ICMA RETIREMENT CORPORATION
DEFERRED COMPENSATION PLAN
WHEREAS, 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 previously implemented Deferred
Compensation Plans with Great Western Bank and Glendale Federal
Savings and Loan Association; and
WHEREAS, the City has determined 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 one of its Deferred
Compensation Plans 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 by the Council of the City of
Bakersfield as follows:
1. The City hereby adopts or has previously adopted a
Deferred Compensation Plan (the "Plan") in the form of the ICMA
Retirement Corporation Deferred Compensation Plan, referred to as
Appendix A;
2. The City hereby executes the Declaration of Trust of
the ICMA Retirement Trust, referred to as Appendix B; and
3. The Assistant Finance Director shall be the
coordinator of this program; cast, on behalf of the City, 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.
.......... o0o ..........
ORIGINAL
I HEREBY CERTIFY that the foregoing Resolution was passed
and adopted by the Council of the City of Bakersfield at a regular
meeting thereof held on August 5, 1992, by the following vote:
AYES; COUNCILM~MSERS: Ep.WARD$, DeMOND, SM TN, BRUNNI PETERSON, McOERMOrr, SALVAG610
NOE~,; COUNCILMEM~ERS: ~IOV~.
ABSENT COUNCILMEMBERS:
ABSTAIN: COUNCILM£MBERS' '['40~1°,,'
CITY CLERK and Ex Officio Cl~rk of the
Council of the City of Bakersfield
APPROVED Au~us.t__ 5, 1992
CLARENCE E. MEDDER~ '
Mayor of the City of Bakersfield
APPROVED as to form:
LAWR~C~ M. LUNARDINI v - -
City Attorney of the City of Bakersfield
GJK/krc
D:DEFERRED
07/29/92
ORIGINAL
Deferred
Compensation
Plan
CITY OF
BAKERSFIELD
(EMPLOYER)
10/89
DEFERRED COMPENSATION PLAN
CITY OF
ARTICLE I. INTRODUCTION
The Employer hereby establishes the Employer's Deferred
Compensation Plan, hereinafter referred to as the "Plan."
The Plan consists of the provisions set fodh 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 ama nded (the "Cod e').
This Plan shall be an agreement solely between the
Employer and participating Employees,
ARTICLE II. DEFINITIONS
Section 2.01 Account: The bookkeeping account
maintained for each Participant reflecting the cu-
mulative amount of the Participant's Deferred Com-
pensation, including any income, gains, losses, or
increases or decreases in market value attributable
to the Employer's investment of the Participant's
Deferred Compensation, and further reflecting any
distributions to the Participant or the Participant's
Beneficiary and any fees or expenses char!~ed
against such Participant's Deferred Compensation.
Section 2.02 Administrator: The person or pemons
named to carry out certain nondiscrstionary ad-
ministrative functions under the Ptan, as hereinafter
described. The Employer may remove any person
as Administrator upon 60 days' advance notice in
writing to such parson, in which case the Employer
shall name another parson or parsons to act as
Administrator. The Administrator may resign upon
60 days' advance notice in writing to the Employer,
in which case the Employer shall name another
parson or parsons to act as Administrator.
Section 2.03 Beneficiary: The parson or persons desig-
nated by the Participant in his Joinder Agreement
who shall receive any benefits payable hereunder in
the event of the Participant's death. In the event that
the Participant names two or more Beneficiaries,
each Beneficiary shall be entitled to equal shares of
the benefits payable at the Participant's death, un-
less otherwise provided in the Participant's Joinder
Agreement. If no beneficiary is designated in the
Joinder Agreement, 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 be the Beneficiary.
Section 2.04 Deferred Compensation: The amount of
Normal Compensation otherwise payable to the
Participant which the Participant and the Employer
mutually agree to defer hereunder, any amount
credited to a Participant's Account by reason of a
transfer under section 6,03, or any other amount
which the Employer agrees to credit to a Participant's
Account.
Section 2.05 Employee: Any individual who provides
services for the Employer, whether as an employee
of the Employer or as an independent contractor,
and who has been designated by the Employer as
eligible to participate in the Plan.
Section 2.06 Inctudlble Compensation: The amount of
an E mployea's compansat ion from the Employer for
a taxable year that is attributable to services per-
formed for the Employer and that is includible in the
Employee's gross income for the taxable year for
federa( income tax purposes; such term does not
include any amount excludable from gross income
under this Plan or any .other plan described in
Section 457(b) of the Code or any other amount
excludable from gross income for federal incom · tax
purposes. Includible Compensation shall bo dater-
mined without regard to any community property
laws.
Section 2.07 Jolnder Agreement: An agreement en-
tered into between an Employee and the Employer,
including any amendments or modifications t hereof.
Such agreement shall fix the amount of Deferred
Compansatlon. specify a preference among the
investment alternatives designated by the Employer,
designate the Employsa's Beneficiary or Beneficia-
ries, and incorporate the terms, conditions, and
provisions of the Plan by reference.
Section 2.08 Normal Compensation: The amount of
compensation which would be payable to a Partici-
pant by the Employer for a taxable year if no Joinder
Agreement were in effect to defer compensation
under this Plan.
Section 2.0g Normal Retirement Age: Age 70-1/2, un-
less the Participant has elected an alternate Normal
Retirement Age by written instrument delivered to
the Administrator prior to Separation from Service.
A Participant's Normal Retirement Age determines
the period during which a Participant may utilize the
catch-up limitation of Section 5.02 hereunder. Once
a Participant has to any extent utilized the catch-up
limitation of Section 5.02, his Normal Retirement
age may not be changed.
A Participant's alternate Normal Retirement Age
may not be earlier than the earliest date that the
Participant will become eligible to retire and receive
unreduced retirement benefits 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. If a Participant continues employ-
ment after attaining age 70-1/2, not having previ-
ously elected an 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 ser-
vice if the Employer has no mandatory retirement
age. if the Participant will not become eligible to
receive benefits under a basic retirement plan
maintained by the Employer, the Participant's alter-
nate Normal Retirement Age may not be earlier than
age 55 and may not be later than age 70-1/2.
Section 2.10 Participant: Any Employeewho hasjoined
the Plan pursuant to the requirements of Article IV.
Section 2.11 Plan Year: The calendar year.
Section 2.12 Retirement: The first date upon which both
of the following shall have occurred with respect to
a participant: Separation from Service and attain-
ment of age 65.
Section 2.13 Separation from Service: Severance of
the Participant's employment with the Employer
which constitutes a "separation from service' within
the meaning of Section 402(e)(4)(A)(iii) of the Code.
In general, a Participant shall be deemed to have
severed his employment with the Employer for pur-
poses of this Plan when, in accordance with the
established practises of the Employer, the employ-
ment relationship is considered to have actually
terminated. In the case of a Participant who is an
independent contractor of the Employer, Separation
from Service shall be deemed to have occurred
when the Participant's contract under which ser-
vices are performed has completely expired and
terminated, there is no foreseeable possibility that
the Employer witl renew the contract or enter into a
new contract for the Participant's services, and it is
not anticipated that the Participant will become an
Employee of the Employer.
ARTICLE III. ADMINISTRATION
Section 3.01 Duties of Employer: The Employer shall
have t he authority to make all discretionary decisions
affecting the rights or benefits of Participants which
may be required in the administration of this Plan.
Section 3.02 Dutlce of Administrator: The Adminis-
trator, as agent for the Employer, shall perform
nondiscretionary administrative functions in con-
nection with the Plan, including the maintenance of
Participants' Accounts, the provision of periodic
reports of the status of each Account, and the
disbursement of benefits on behalf of the Employer
in accordance with the provisions of this Plan.
ARTICLE IV. PARTICIPATION IN THE PLAN
Section 4.01 Initial Participation: An Empicyea may
become a Participant by entering into a Joinder
Agreement prior to the beginning of the calendar
month in which the Joinder Agreement is to become
effective to defer compensation not yet earned.
Section 4.02 Amendment of Jolnder 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 nat ure or terms of
any investment made by the Employer). Such
amendment shall become effective as of the begin-
ning of the calendar month commencing after the
date the amendment is executed. A Participant may
at any time amend his Joindar Agrsement to change
the designated Beneficiary, and such amendment
shall become effective immediately.
ARTICLE V. LIMITATIONS ON DEFERRALS
Section 5.01 Normal Limitation: Except as provided in
section 5.02, the maximum amount of Deferred
Compensation for any Participant for any taxable
year shall not exceed the lesser of $7,500.00 or 33-
1/3 percent of the Participant's Includible Compen-
sation for the taxable year. This limitation will ordi-
narily be equivalent to the lesser of $7,500.00 or 25
pement of the Participant's Normal compensation.
Section 5.02 Catch-Up Limitation: For each of the last
three (3) taxable years of a Participant ending be-
fore .his attainment of Normal Retirement Age, the
max:mum amount of Deferred compensation shall
be the lesser of: (1) $15,000 or (2) the sum of (i) the
Normal Limitation for the taxable year and (ii) the
Norma L mitation 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 (o,' 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 plan) was subject to the deferral
limitations set forth in Section 5.01.
Section 5.03 Other Plans: Th~ amount excludable from
a Participant's gross income under this Plan ~r any
other eligible deferred compensation plan under
section 457 of the Code shall not exceed $7,500.00
(or such greater amount allowed under Section 5.02
of the Plan), less any amount excluded from gross
income under section 403(b), 402(a)(8), or 402
(h)(1)(B) of the Code, or any amount with respect to
which a deduction is allowable by reason of a
contribution to an organization described in section
501 (c)(18) of the Code.
ARTICLE VI. INVESTMENTS AND ACCOUHT VALUES
Section 6.01 InvsMment of Deferred Compsnastlon:
All investments of Participant's Deferred compan-
satlon made by the Employer, including all property
and rights .pumhased with such amounts and all
income attnbutable thereto, shall be the anie prop-
arty of the Employer and shall not be held in trust for
Participants or as collateral sscurity for t he fulfillment
of the Employer's obli~]ations under the Plan. Such
property shall be subject to the claims of general
creditors of the Employer, and no Participant or
Beneficiary shall have any vested interest or secured
or preferred position with respect to such property or
have any claim against the Employer except as a
general creditor,
Section 6.02 Crediting of Accounts: The Participant's
Account shall reflect the amount and value of the
investments or other property obtained by the Em-
ployer through the investment of the Participant's
Deferred Compensation. It is anticipated that the
Employer's investments with respect to a Partici-
pant wiil conform to the investment preference
specified in the Participant's Joinder Agreement,
but nothing herein shall be construed to require the
Employer to make any particular investment of a
Participant's Deferred Compensation. Each Partici-
pant shall receive periodic reports, not less frequently
than annually, showing the then-current value of his
Account.
Section 6.03 Transfers: (a) incoming Transfers: A
transfer may be accepted from an eligible deferred
compensation plan maintained by another employer
and credited to a Participant's Account under the
Plan it (i) the Participant has separated from service
with that employer and become an Employee of the
Employer, and (ii) the other employer's plan pro-
vides that such transfer will be mede. The Employer
may require such documentation from the prede-
cessor plan as it deems necessary to effectuate the
transfer, to confirm that such plan is an eligible
deferred compensation plan within the meaning of
Section 457 of the Code, and to assure 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. Any such transferred amount shall not be
treated as a deferral subject to the limitations of
Article V, except that, for purposes of applying the
limitations of Sections 5.01 and 5.02, an amount
deferred during any taxable year under the plan
from which the transfer is accepted shall be treated
as if it has been deferred under this Plan during such
taxable year and compensation paid by the transferor
employer shall be treated as if it had been paid by the
Employer.
(b) Outgoing Transfers: An amount may be trans-
ferred to an eligible deferred compensation plan
maintained by another employer, and charged to ~
Partioipant's Account under this Plan, if (i) the Par-
ticipant has separated from service with the Em-
player and become an employee of the other em-
player, (ii) the other employer's plan provides that
such transfer will be accepted, and (iii) the Partici-
pant and the employers have signed such agree-
ments as are 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 effec-
tuate the transfer, to conlirm that such plan is an
eligible deferred compensation plan within the
meaning of section 457 of the Code, and to assure
that transfers ara provided for under such plan.
Such transfers shall be made only under such
circumstances as are permitted under section 457
of the Code and the regulations thereunder.
Section 6.04 Employer Liability; In no event shall the
Employer's liability to pay benefits to a Participant
under Article VI exceed the value of the amounts
credited to the Participant's Account; the Employer
shall not be liable for losses arising from deprecia-
tion or shrinkage in the value of any investments
acquired under this Plan.
ARTICLE VII. BENEFITS
Section 7.01 Retirement Benefits and Election on
Separation from Servlca: Exca~ as otherwise
~rovided in this Article VII, the distribution of a
articipant's Account shall commence as of April 1
of the calendar year after the Plan Year of the
Participant's Retirement, and the distribution of such
Retirement benefits shall be made in accordance
with one of the payment options described in Sec-
tion 7.02. Notwithstanding the foregoing, the Partici-
pant may irrevocably elect within 60 days following
Separation. from Service to have the distribution of
benefits commence on a fixed or determinable date
other than that described in the preceding sentence
which is at least 60days after the date such election
is delivered in writing to the Employer and forwarded
to the Administrator, but not later than April 1 of the
year following the year of the Participant's Retire-
ment or attainment of age 70-1/2, whichever is later.
Section 7.02 Payment Options: As provided in Sections
7.01, 7.04, and 7.05, a Participant or Beneficiary
may elect to have the value of the Participant's
Account distributed in accordance with one of the
following payment options, provided that such op-
tion is consistent with the limitations set forth in
Section 7.03:
(a) Equal monthly,quarterly, semi-annual or annual
payments in an amount chosen by the Pmtioipant,
continuing until his Account is exhausted;
(b) One lump-sum payment;
(c) Approximately equal monthly, quarterly, semi-
annual or annual payments, calculated to
continue for a period certain chosen by the
Participant.
(d) Annual Payments equal to the minimum
distributions required under Section 401 (a)(9) of
the Code over the life expectancy of the
Participant or over the life expectancies of the
Participant and his Beneficiary.
(e) Paymants equalto paynfents made bythe issuar
of a retirement annuity policy acquired by the
Employer.
(f) Any other payment option elected by the
Participant and agreed to by the Employer and
Administrator, provided that such option must
provide for substantially nonincreasing payments
for any period after the latest benefit
commencement date under Section 7.01.
A Participant's or Beneficiary's election of a
payment option must be mede at least 30 days
before the paymant of benefits is to commence.
If a Participant or Beneficiary fails to make a
timely election of a payment albion, benefits
shall be paid monthly under option (c) above for
a period of five years.
Section 7.03 Llmltstion on Optiona: No payment op~icn
may be selected by a Participant or Beneficiary
under Sections 7.02, 7.04, ar 7.05 unless it satisfies
the requirements of Sections 401(a)(9) and 457(d)(2)
of the Code, including that ..payments commencing
before the death of the Partic~)ant shall satisfy the
incidental death benefits requirement under Section
457(d)(2)(B)(i)(I). Unless otherwise elected by the
Participant, all determinations under Section
401 (a)(9) shall be made without recalculation of life
expectancies.
Sect Ion 704 Peat-retirement Death Beneflta: (a) Should
the Participant die after he has begun to receive
benefits under a payment ap{lan, the remaining
payments, if any, under the payment option shall be
payable to the Participant's Beneficiary commenc-
ing 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 as under the payment option that was
applicable to the Participant. In no event shall the
Employaror Administrator be liable tothe Benefioiary
for the amount of any payment made in the name of
the Participant before the Administrator receives
proof of death of the Participant.
(b) If the designated Beneficiary does not continue
to live for the remaining period of payments under
the payment option, then the commuted value of any
remaining payments under the payment option shall
be paid in a lump sum to the estate of the Benefi-
ciary, in the event that the Participant's estate is the
Beneficiary, the commuted value of any remaining
payments under the payment option shall be paid to
the estate in a lump sum.
Section 7.05 Pre-retlre~nt Death Beneflta: (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-clay period
commencing on the 91 st day after the Participant's
death, unless the Beneficiary irrevocably 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 necas-
sary to assure that the amount of any annual install-
ment is not less than $3,500. 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 fifteen
(15) years if the Beneficiary is not the Participant's
spouse.
(c) In the event that the Beneficiary dies before the
payment of death benefits has commenced or been
completed, the remaining value of the Participant's
Account shall be paid to the sstate of the Beneficia~
in a lump sum. inthe event that the Participant s
estate is the Beneficiary, payment shall be made to
the estate in a lump sum.
Section 7.06 Unforeseeable Emergencies: (a) In the
event an unforeseeable emergency occurs, a Par-
ticipant may apply to the Employer to receive that
part of the value of his Account that is reasonably
needed to satisfy the emergency need. If such an
application is approved by the Employer, the Partici-
pant shall be paid only such amount as the E mploya r
deems necessary to meet the emergency need, but
payment shall not be made to the extent that the
financial hardship may be relieved through cessa-
tion of deferral under the Plan, insurance or other
reimbursement, or liquidation of other assets to the
extent such liquidation would not itself cause severe
financial hardship.
(b) An unforeseeable emergency shall be deemed
to involve only circumstances of severe financial
hardship to the Participant resulting from a sudden
unexpected illness, accident, or disability of the
Participant or of a dependent (as defined in Section
152(a) of the Code) of the Participant, loss of the
Participant's proparty due to casualty, or other simi-
lar and extraordinary unforeseeable circumstances
arisinl~ as a result of events beyond the control of the
Participant. The need to send a Participant's child to
college or to purchase a new home shall not be
considered unforeseeable emergencies. The deter-
mination as to whether such an unforeseeable
emergency exists shall be based on the merits of
each individual case.
Section 7.07 Transitional Rule for Pre-lg8g Benefit
Electiona: In the event that, prior to January 1 1989,
a Participant or Beneficiary has commenced re-
ceiving benefits under a payment option or has
irrevocably elected a payment option or benefit
commencement date, then that payment option or
election shall remain in effect notwithstanding any
other provision of this Plan.
ARTICLE VIIL NON-ASSIGNABIUTY
Section 8.01 In General: Except as provided in Section
8.02, no Participant or Beneficiary shall have any
right to commute, sell, assign, pledge, transfer or
otherwise convey or encumber the nght to receive
any payments hereunder,.which payments and rights
are expressly declared to be non-essignable and
non-transferable.
Section 8.02 Dome,,tio Reletlona Ordere: (a) Allow-
ance of Transfers: To the extent required under a
final judgment, decree, or order (including approval
of a properly settlement agreement) mede pursuant
to a state domestic relations law, any portion of a
Participant's Account may be paid or set aside for
payment to a spouse, former spouse, or child of the
Participant. inhere 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 es the Participant; any amount so set
aside for a spouse, former spouse, or child shall be
paid out in a lump sum at the earliest date that
benefits may be paid to the Participant, unless the
order directs a different time or form of payment.
Nothing in this Section shall be construed to autho-
rize any amount to be distributed under the Plan at
a time or in a form that is not permitted under Section
457 of the Code. An)' payment made to aparson
other than the Participant pursuant to this Section
shall be reduced by required income tax withhold-
ing; the fact that payment is made to a parson other
than the Participant may not prevent such payment
from being includible in the gross 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
this Section. No such transfer shall be effectuated
unless the Employer or Administrator has been
provided with satisfactory evidence that the Em-
ployer and the Administrator are released from any
further claim by the Participant with respect to such
amounts. The Participant shall be deemed to have
released the Employer and the Administrator from
any claim with respect to such amounts, in any case
in which (i) the Employer or Administrator has been
served with legal process or othenvise joined in a
proceeding relating to such transfer, (ii) the Partici-
pant has been notified of the pendency of such
proceeding in the manner prescribed by the law of
the urisdiction in which the proceeding is pending
for sen/ice of process n such act on orby mail from
the Employer or Administrator to the Participant's
last known mailing address, and (iii) 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, decree, or
order.
(c) Participation in Legal Proceedings: The Em-
ployer and Administrator shall not be obligated to
defend against or set aside any judgment, decree,
or order described in paragraph (a) or any legal
order relating to the garnishment of a Participant's
benefits, unless the full expanse of such legal action
is borne by the Participant. In the event that the
Participant's action (or inaction) nonetheless causes
the Employeror Administrator to incur such expanse,
the amount of the expanse may be charged against
the Participant's Account and thereby reduce the
Employer's obligation to pay benefits to the Partici-
pant. In the course of any proceeding relating to
divorce, separation, or child support, the Employer
and Administrator shall be authorized to disclose
information relating to the Participant's Accoun~ to
the Participant's spouse, former spouse, or child
(ir~luding the legal representatives of the spouse,
former spouse, or child), or to a court.
ARTICLE IX. RELATIONSHIP TO OTHER PLANS AND
EMPLOYMENT AGREEMENTS
This plan serves in addition to any other retirement,
~enSion, or benefit plan or system presently in existence or
reinafter 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 Employer or to give any Participant the right to be
retained in the employ of the Employer. Nor shall anything
herein be construed to modify the terms of any employment
contract or agreement between a Participant and the Em-
ployer.
ARTICLE X. AMENDMENT OR TERMINATION OF PLAN
The Employer may at any time amend this Plan provided
that it transmits such amendment in writing to the Administra-
tor at least 30 days prior to the effective date of the amend-
ment. The consent of the Administrator shall not be required
in order for such amendment to become effective, but the
Administrator shall be under no obligation to continue acting
as Administrator hereunder if it disapproves of such amend-
ment. The Employer may at any time terminate this Plan.
The Administrator may at any time propose an amend-
ment to the Plan by an instrument in writing transmitted to the
Employer at least 30 days before the effective date of the
amendment, Such amendment shall become effective un-
less, within such 30-day parlod, the Employer notifies the
Administrator in writing that it disapproves such amendment,
in which case such amendment shall not become effective.
In the event of such disapproval, the Administrator shall be
under no obligation to continue acting as Administrator
hereunder. If this Plan document constitutes an amendment
and restatement of the Plan as p~evlously adopted by the
Employer, the amendments contained herein shall become
effective on January 1, 1989, and the terms of the preceding
Plan document shall remain in effect through December 31,
1988.
Except as may be required to maintain the status of the
Plan as an eligible deferred compensation plan under Section
457 of the Code or to comply with other applicable laws, no
amendment or termination of the Plan shall divest any
Participant of any rights with respect to compansatlon de-
ferred before the date of the amendment or termination.
ARTICLE Xl. APPUCABLE 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 an "eligible deferred
compensation plan" under Section 457 of the Code, as
amended. The provisions of this Plan shall be interpreted
wherever possible in conformity with the requirementsof that
section.
ARTICLE XlI. 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.
Declaration of
Trust of
ICMA
Retirement
Corporation
DECLARATION OF TRUST
OF ICMA RETIREMENT CORPORATION
ARTICLE I. NAME DEFINITIONS
Section 1.1 Name: The Name of the Trust, as amended and
restated hereby, is the ICMA Retirement Trust.
Section 1.2 Definltione: Wherever they are used herein,
the following terms shall have the following respective
meanings:
(a) Bylaws. The bylaws referred to in Section 4.1
hereof, as amended from time to time.
(b) Deferred Compensation Plan. A deferred
compensation plan established and maintained by
a Public Employer for the purpose of providing
retirement income and other deferred benefits to
ifs employees in accordance with the provision of
section 457 of the Internal Revenue Code of 1954,
as amended.
(c) Employees. Those employees who participate in
Qualified Plans.
(d) Employer Trust. A trust created pursuant to
an agreement between RC and a Public Employer
for the purpose of investing and administering the
funds set aside by such Employer in connection
with ifs Deferred Compensatmn 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
return on investments made pursuant to such
contract.
(f) ICMA. The International City Management
Association.
(g) ICMA/RC Trustees. Those Trustees elected by
the PublicEmployerswho in accordance with the
provisions of Section 3,1(a) hereof, are aso
members, or former members, of the Board of
Directors of ICMA or RC.
(h) Investment Adviser. The Investment Adviser that
enters into a contract with the Retirement Trust to
pTrovide advice with respect to investment of the
rust Property.
(I) Port folios. The Portfolios of invest ment established
by the Investment Adviser to the Retirement Trust,
under the supervision of the Trustees, for the
~urpose of providing investments for the Trust
Property.
(J) Public Employee Trustees. Those Trustees
elected by the Public Employers who, in accordance
with the provision of Section 3.1 (a) hereof, are fulf-
time employees of Public Employers.
(k) Public Employer Trustees. Public Employers who
serve as trustees of the Qualified Plans.
(I) Publio Employer. A unit of state or local
tghovernment, or any agency or instrumentality
ereof, that has adopted a Deferred Compensation
Plan or a Qualified Plan and has executed this
Declaration of Trust.
(m) Qualified Plan. A plan sponsored by a Public
Employer for the purpose of providing retirement
income to its employees which satisfies the
qualification requirements of Section 401 of the
Internal Revenue Code, as amended.
(n) RC. The International City Management
Association Retirement Corporation.
(o) Retirement Trust. The Trust created by the
Declaration of Trust.
(p) Trust Property. The amounts held in the
Retirement Trust on behalf of the Public
Employers in connection with Deferred
Compensation Plans and on behalf of the Public
Employer Trustees for the exclusive benefit of
Employees pursuant to Qualified Plans. TheTrust
Property shall include any income resulting from
the investment to the amounts so held.
(q) Trustees. The Public Employee Trustees and
ICMA/RC Trustees eledted by the Public Employe rs
to serve as members of the Board of Trustees of
the Retirement Trust.
ARTICLE I1. CREATION AND PURPOSE OF THE TRUST;
OWNERSHIP OF TRUST PROPERTY
Section 2.1 Creation: The Retirement Trust is created and
established by the execution of this Declaration of
Trust by the Trustees and the Public Employers.
Section 2.2 Purpose: The purpose of the Retirement Trust
is to provide for the commingled investment of funds
held by the Public Employers in connection with their
Deferred Compensation and Qualified Plans. The
Trust Property shall be invested in the Po~ollos, in
Guaranteed Investment Contracts, and in other in-
vestments recommended by the Investment Adviser
under the supervision of the Board of Trustees. No
part of the Trust Property will be invested in securities
~ssued by Public Employers.
Section 2.3 Ownership of Trust Proj~erty: The Trustees
shall have legal title to the Trust Property. The Public
Employers shall be the beneficial owners of the por-
tion of the Trust Property allocable to the Deferred
Compensation Plans. The po~llon of the Trust Prep-
arty allocable to the Qualified Plans shall be held for
the Public Employer Trustees forthe exclusive benefit
of the Employees.
ARTICLE III. TRUSTEES
Section 3.1 Number and Qualification of Trustees:
(a)The Board of Trustees shall consist of nine Trust-
ees. Five of the Trustees shall be full-time employees
of a Public Employer (the Public Employee Trustees)
who are authorized by such Public Employer to serve
as Trustee. The remaining four Trustees shall consist
of two persons who, at the time of election to the Board
of Trustees, are members of the Board of Directors of
ICMA and two persons who, at the time of election, are
members of the Board of Directors of RC (the ICMA/
RC Trustees. One of the Trustees who is a director ef
iCMA, and one of the Trustees who is a director of RC,
shall, at the time of election, be full-time employees of
a Public Employer.
(b) No pe. rson may serve as a Trustee for more than
one term m any ten-year period.
Section 3.2 Election and Term: (a) Except for the Trust-
ees appointed to fill vacancies pursuant to Section 3.5
hereof, the Trustees shall be elected by a vote of a
majority of the Public Employers in accordance with
the procedures set forth in the By-Laws. (b) At the first
election of Trustees, three Trustees shall be elected
for a term of three years, three Trustees shall be
elected for a term of two years and three Trustees
shall be elected for a term of one year. At each
subsequent election, three Trustees shall be elected
for a term of three years and until his or her successor
is elected and qualified.
Section 3.3 Nominations: The Trustees who are full-time
employees of Public Employers shall serve as the
Nominating Committee for the Public Employee
Trustees. The Nominating Committee shall choose
candidates for Pubiic Employee Trustees in accor-
dance 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 in writing
signed by the Trustee and 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 may be rs-
moved for cause, by a vote of a majority of the Public
Employers. (b) Each Public Employee Trustee shall
resignhis or her position as Trustee within sixty days
of the date on which he or she ceases to be a full-time
employee of a Public Employer.
Section 3.S Vacancies: The term of office of a Trustee
shall terminate and a vacancy shall occur in the event
of the death, resignation, removal, adjudicated incom-
petence or other incapacity to pedorm the duties of the
office of a Trustee. In the case of a vacancy, the
rema/ning 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
portion of the term of the Trustee who has resigned or
otherwise ceased to be a Trustee. The appointment
shall be made by a written instrument si~ned by a
majority ofthe 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 conclu-
sive evidence of the existence of such vacaacy.
Section 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 collec-
tively.
ARTICLE IV. POWERS OF TRUSTEES
Section 4.1 General Powers: The Trustees shall have the
power to conduct the business of the Trust and to carry
on its operations. Such power shall include, but shall
not be limited to, the power to:
(a) receive the Trust Property from the Public
Employers, Public Employer Trustees or other
Trustee of any Employer Trust;
(b) enter into a contract with an Investment Adviser
providing, among other things, for the
establishment and operation of the Portfolios,
selection of the Guaranteed Investment Contracts
in which the Trust Property may be invested.
selection of 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;
(c) review annually t he pedormance of tbe Investment
Adviser and approve annually the contract with
such Investment Adviser;
(d) invest and reinvest the Trust Property in the
Portfolios, the Guaranteed Interest Contracts 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
invested in specified Portfolios or in a Guaranteed
Investment Contract, the Trustees of the
Retirement Trust shall invest such monies in
accordance with such directions;
(s) keep such portion of the Trust Propar[y 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;
(l) accept and retain for such time as they may aeem
advisable any securities or other property received
or acquired by them as Trustees hereunder,
whether or not such securities or other property
would normally be purchased as investment
hereunder;
(g) cause any securities or other proberty held as part
of the Trust Property to be registered in the name
of the Retirement Trust or in the name of a nominee,
and to hold any investments in bearer from, but the
books and records of the Trustees shall at all tim es
show that all such investments are a part of the
Trust Property;
(h) make, execute acknowledge and deliverany and
alldocuments of transfer and conveyance and any
and all other instruments t hat may be necessary or
appropriate to carry out the powers herein g ranted;
(I) vote upon any stock, bonds or other securities
give general or speoialproxies or powers of attorney
with or without power of substitution;exercise any
conversion privileges, subscription rights, or other
options, and make any payments incidental thereto;
oppose, or consent to, or otherwise participate in
corporate reorganizations or to other changes
affecting corporate securities, and delegate
discretionary powers and pay anyassassments or
charges in connection therewith and generally
exercise any of the powers of an owner with
respect to stocks, bonds, securities or other
property held as part of the Trust Property;
(j) enter into contracts or arrangements for goods or
services required in connection with 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 shall not exceed 30% of the
value of the Trust Property. No person lending
money to the Trustees shal~ be bound to see the
application of the money lent or to inquire into its
validity, expediency or propriety or any such
borrowing;
(I) incur reasonable expenses as required for the
operation of the Retirement Trust and deduct such
expanses from of the Trust Property;
(m) J~ay expenses properly allocable to the Trust
I-'roperty incurred in connection with the Deferred
Compensation Plans, Qualified Plans, or the
Employer Trusts and deduct such expenses from
the portion of the Trust Property to whom such
expanses are properly al~3cable;
(n) pay out of the Trust Property all real and personal
property taxes, income taxes and other taxes of
any and all kinds which, in the opinion of the
Trustees, are properly levied or assessed under
ex sting or future laws upon, or in respect of. the
Trust Property and allocate any such taxes to the
appropriate accounts;
(o) adop{, amend and repeal the bylaws, provided
that such bylaws are at all times consistent with
the terms of this Declaration of Trust;
(p) employ persons to make available interests in the
Retirement Trust to employers eligible to maintain
a Deferred Compensat~onPlan under Section 457
or a Qualified Plan under Section 401 of the
Internal Revenue Code, as amended;
(q) issue the Annual Report of the Retirement Trust,
and the disclosure documents and other literature
used by the Retirement Trust;
(r) make loans, including the purchase of debt
obligations, provided that all such loans shall bear
interest at the current market rate;
(s) contract for, and delegate any poweregranted
hereunder to, such off,cars, agents, employees,
auditors and attorneys astha Trustees may select,
provided that the Trustees may ~ delegate the
powers sst forth in paragraphs (b), (c) and (o) of
this Section 4.1 end may not delegate any powers
if such delegation would violate their fiduciary
duties;
(t) provide for the indemnification of the Officers and
Trustees of the Retirement Trust and purchase
fiduciary insurance;
(u) maintain books and records, including separate
accounts for each Public Employer, Public
Employer Trustee or Employer Trust and such
add'~qonalssparate 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 p[ocaedings, and
exercise all such rights and pr~vilagas, although
not specifically mention herein, as the Trustees
ma~deem necessary or appropriate to administer
theTrust Property and to carry out the purposes of
the Retirement Trust.
Section 4.2 Distribution of Trust Property: Distributions
of the Trust property shall be made to, or on behalf of,
the Public Employer or Public Employer Trustee, in
accordance with the terms of the Deferred Compen-
sation Plans, Qualified Plans or Employer Trusts. The
Trustees of the Retirem ant Trust shall be fully protected
in making payments in accordance with the directions
of the Public Em,oloyers, Public Employer Trustees or
other Trustee of the Employer Trusts without ascer-
taining whether such payments are in complienca with
the provision of the Deferred Compensation or Quali-
fied Plans, or the agreements creating the Employer
Trusts.
Section 4.3 Execution of Inetrumente: The Trustees may
unanimously designate any one or more of the Trust-
ees to execute any instrument or document on behalf
of alf, including but not limited to the signing or en-
dorsement of any check and the signing of any appli-
cations, insurance and other contracts, and the action
of such deeignatad Trustee or Trustees shall have the
same fores and effect as if taken by all the Trustees.
ARTICLE V. DUTY OF CARE AND LIABILITY OF
TRUSTEES
Section 5.1 Duty of Cars: In exercising the powers
hereinbefore granted to the Trustees, the Trustees
shall perform all acts within their authority for the
exclusive purpose of providing benefits for the Public
Employers in connection with Deferred Compensa-
tion Plans and Public Employer Trustees pursuant to
Qualified Plans, and shall perform such acts with the
care skill prudence and diligence in the circum-
stancesthen prevai ng that a prudent person acting in
a like capacity and familiar with such matters would
use in the conduct of an enterprise of a like character
and with like aims.
Section 5.2 Liability: The Trustees shall not be liable for
any mistake of judgment or other action taken in goo~
faith, and for any action taken or omitted in reliance in
good faith upon the books of account or other records
of the Retirement Trust, upon the opinion of counsel,
or upon reports made to the Retirement Trust by any
of its officers, employees or agents or by the Invest-
ment Adviser or any sub-investment adwssr, accoun-
tants, appraisers or other experts or consultant
Isctad Wi~h reasonable cars by the Trustees, officers
or employees of the Retirement Trust. The Trustees
shall also not be liable for soy loss sustained by the
Trust Property by reason of any investment made in
good faith endin accordance with the standard of care
set forth in Section 5.1.
Section 5.3 Bond: No Trustee shall be obligated to give
any bond or other security, for the pedormanca of any
of his or her duties hereu;tder.
ARTICLE VI. ANNUAL REPORT TO SHAREHOLDERS
The Trustees shall annually submit to the Public Employers
and Public Employer Trustees a written report of the transac-
tions of the Retirement Trust, including financial statements
which shall be certified by independent public accountants
chosen by the Trustees.
ARTICLE VII. DURATION OR AMENDMENT OF
RETIREMENT TRUST
Section 7.1 Wlthdreweh A Public Employer or Public
Employer Trustee may, at any ti me, withdraw from this
Retirement Trust by delivering to the Board of Trust-
ees a written statement of withdrawaL In such state-
ment, the Public Employer or P ubllo Employer Trustee
~halLa .ckn.. o_wledge that the Trust Properly allocable to
the rut~io t:mp~oyer ~s derived from compensation
deferred by employees of such Public Employer pur-
suant to its Deferred Compe~saticm 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
~y the Trustees of the Retirement Trust or by the
Trustee of the Employer Trust.
Section 7.2 Duration: The Retirement Trust shallcontinue
until terminated by the vote of a majority of the Public
Employers, each casting one vote, Upon termination
all of the Trust Properly shall be paid out to the Public
Empibyers, Public Employer Trustees ortho Trustees
of the Employer Trusts, as appropriate.
Section 7.3 Amendment: The Retirement Trust may be
amended by the vote of a majority of the public
Employers, each casting one vote.
Section 7.4 Procadurs: A resolution to terminata or amend
the Retirement Trust or to remove a Trustee shall be
submitted to a vote of the Public Employ. ers if: (i) a
majority of the Trustees so direct, or; (ii) a petitmn
requesting a vote signed by not less that 25 percent of
the Public Employers, is submitted to the Trustees.
ARTICLE VIII. MISCELLANEOUS
seotlon 8.1 Governing Law: Except as otherwise re-
quired by state or local law, this Declaration of Trust
and the Retirement Trust hereby created shall be
construed and regulated by the laws of the District of
Columbia.
section 8.2 Counterparts: This Declaration may be ex-
ecuted by the Public Employers and Trustees m two or
more counterparts each of which shall be deemed an
original but all of which together shall constitute one
and the same instrument.
ICMA RETIREMENT CORPORATION, CORPORATE HEADQUARTERS, ?77 NORTH CAPITOL STREET, NE, WASHINGTON, DC 20002.4240