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HomeMy WebLinkAboutRES CC 2000 1742 2000 0517RESOLUTION NO. 2000 -1742 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MOORPARK, CALIFORNIA, APPROVING A 457 DEFERRED COMPENSATION PLAN AND TRUST WITH THE ICMA RETIREMENT CORPORATION AND RESCINDING RESOLUTION NO. 98 -1437 WHEREAS, the City of Moorpark ( "City ") has employees rendering valuable service to the City; 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 improving 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 its deferred compensation plan be administered by the ICMA Retirement Corporation, and that the funds held under such plans be invested in the ICMA Retirement Trust, a trust established by public employers for the collective investment of funds held under their retirement deferred compensation plans; and WHEREAS, Resolution No. 98 -1437 is proposed to be rescinded, and this resolution adopted, to allow the City more flexibility to designate the staff coordinator for the ICMA 457 Deferred Compensation Plan and Trust. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. That the City of Moorpark hereby adopts the deferred compensation plan (the "Plan ") in the form of the ICMA Retirement Corporation Deferred Compensation Plan and Trust, attached hereto as Attachment 1. SECTION 2. That the City hereby executes the Declaration of Trust of the ICMA Retirement Trust, attached hereto as Attachment 2, intending this execution to be operative with respect to any retirement or deferred compensation plan subsequently established by the City, if the assets of the plan are to be invested in the ICMA Retirement Trust. Resolution No. 2000 -1742 Page 2 SECTION 3. That the assets of the Plan shall be held in trust, with the City serving as trustee, for the exclusive benefit of the Plan participants and their beneficiaries, and the assets shall not be diverted to any other purpose. The Trustee's beneficial ownership of Plan assets held in ICMA's Retirement Trust shall be held for the further exclusive benefit of the Plan participants and their beneficiaries. SECTION 4. That the Plan will not permit loans. SECTION 5. That the City hereby agrees to serve as trustee under the Plan. SECTION 6. That the City Manager is hereby authorized to designate the City staff member to act as coordinator for this program and to receive necessary reports, notices, and related documents from the ICMA Retirement Corporation or the ICMA Retirement Trust; and the City Manager or his /her designee shall cast, on behalf of the City, any required votes under the ICMA Retirement Trust, and the City Manager or his /her designee is authorized to execute all necessary agreements with ICMA Retirement Corporation incidental to the administration of the Plan. Administrative duties to carry out the plan may be assigned to the appropriate City staff member. SECTION 7. Resolution No. 98 -1437 is hereby rescinded in its entirety. SECTION 8. The City Clerk shall certify to the adoption of this resolution and shall cause a certified resolution to be filed in the book of original Resolutions. PASSED AND ADOPTED this 17th da ATTEST: S. 1+.aP..Y Deborah S. Traffenstedt, City Clerk May 2_0 0 trick Hjinter, Mayor Attachments: 1. ICMA Deferred Compensation Plan a 2. Declaration of Trust i% Resolution No. 20v0- 1742A-ffACHMEM_1-- Page 3 4 i 7 Plitt .4Joptrorr Pi,4eige Ret,rtu Document D.-.1'e rred Cam pen fa t l a it P a n Doi it or a it t o it d Tr It t t. .\'o V m brr I y 9 4 DEFERRED COMPENSATION PLAN & TRUST Article 1. Purpose The Employer hereby establishes the Employer's De- ferred Compensation Plan and Trust, hereafter referred to as the "Plan.- The Plan consists of the provisions set forth to this document. The primary purpose of this Plan is to provide retirement income and ocher deferred benefits to the Employees of che• Employer and the Employees' Beneficiaries in accordance with the provisions of Section 457 of the Internal Rev- enue Code of 1986, as amended (the "Code "). This Plan shall bean agreement solely..between , t.he, Employer and parrtctpacing.lrmplq.yee1. The Plan and Trust forming a part hereof ate established and shall be maintained for the exclusive benefit of eligible Employ- ees and their BeneficiariEs. No "'part'of the corpus or income of the Trust shall revert to the Employer or be used for or diverted to purposed other than the exclu- sive benefit of Participants and their Beneficiaries. Article 11. Definitions 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's Deferred Compensation, and further reflecting any distributions to the Pirtiti'p:int or the Participant's Beneficiary sand any fits or expenses charged against such Participant's Deferria- Compensation. 2.02 Accounting Dates Each bu sine's s day that the' New York Stock Exchange is open for trading. is provided in Section 6.06 for valuing the Trust's assets. 2.03 Administrator: The person or persons named to carry out certain nondiscretionary admidistrative func- tions under the Plan, as hereinafter described. The Employer may remove any person as Administrator upon 60 days' advance notice in writing to such person. in which case the Employer shall name another person or persons to act as Administrator. The Administritor may resign upon 60 days' advance notice in writing to the Employer, in which case the Employer shall name another person or persons to-act as Administrator. 2.04 Beneficiary: The person or persons destgn.tce.i the Participant in his Joinder Agreement %vho shall receive anv benefits payable hereunder to the event ,,f the Participant's death. In the event chat the P.irnt: Lanc names two or more Beneficiaries, each Beneticiary sh.111 be entitled to equal shares of the benefits payable ac the Participant's death, unless otherwise provided to the Participant's joinder Agreement. If no benetictary is designated to the joinder Agreement, if the Designated Beneficiary predeceases the Participant, or ti the dest,- nated Beneficiary does not survive the Participant for a pened• of fifteen (15) days, then the estate of the Par- ticipant shall be the Beneficiary. 2.05 Deferred Compensation: The amount of Nor- mal Compensation otherwise payable to the Participant which the Participant and the Employer mutualiv agree to defer Hereunder, any amount credited to a Participant's Account by reason of a transfer under section 6.09, or any ocher amount which the Employer agrees to credit to a Participant's Account. 2.06' Employees Any individual who provides services for the-Employer; whether as an of the Employer or as acs independent contractor, and who has been designated'by the Employer as eligible to partnct- pace -in the Plan. ' 2.07 Lneludible 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 c.ax purposes;'such term does not include any amount excludable frond -gross income under this Plan or any ocher plan described in Section 457(b) of the Code or any other amount excludable from gross income for federal income tax purposes. Includible Compensation shall be determined without regard to any community property laws. 2.08 joinder Agreement:-An agreement entered .nco between an Employee and the Employer. including any amendments dr modifications thereof. Such agreement shall fix. the amount of Deferred Compensation. specify a preference among she investment alternatives desig- nated by the Employer, designate the Employee's Beneficiary or Beneficiaries, and incorporate the terms. conditions, and provisions of the Plan by reference. Resolution No. 2000 -1742 Page 4 1CNl.i (ZET'° E M E N T C01kVoIt �r(U` 2.04 Normal Compensation: The amount of com- pcnsation «which %vould be payable to a Parttctpanc by :a- Emplover for a taxable vear if no joinder Agreement �crc m cffecc to defer compensation under this Plan. 2.10 Normal Retirement Age: Age 70 -t /2, unless the Participant has elected an alternate Normal Retirement Age by wricten instrument delivered to the Administrator prior to Separation from Service. A Participant's Normal Retire- ment Age determines the period during which a Participant may utilize the catch -up limitation of Section 3.02 hereun- der. Once a Participant has to any extent utilized the catch- up limitation of Section 3.02, his Normal Retirement Age may not be changed. A Participant's alternate Normal Retirement Age may not be earlier than the earliest date chat the Participant will beconie eligible co rectce and receive. unreduced recirenienc benefits under the'Employer's basic ' re ' tire- ment plan covering the Participant and may not e later than the date the Participant will attain age 70 -1/2. if a Participant continues employment after attaining age 70 -1/2. nor having'previousfy elected alternate Normal Rettrement Age, the Pirticipanc's alternate Normal Retirement Age shzll not be liter thin tiie mandatory retirement age, it 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 a basic retirement plan main- tained by the Employer, the Participant's alternate Normal Retirement Age may not be earlier than age 55 and may not be later thin age 70 -1/2:' � - 2.11 Participant: Any trnployte whd'Was joined the Plan pursuant to the requi;reaients otl,iricle IV. 2.12 Plan Year: The ciietidac year: - 2.13 Retirement: The first dace upon, wliich both of the following shall have occurred with respect to a participant Separation from Service and attainment of age 65.- 2.14 Separation From Servfeil: Severance of the Participant's empfoyment with the Etliployer which constitutes a "separation from service.'" within the.. meaning of Section 402(d)(4)(A)(iii) of the Code. In general, a Participant shall be deemed to have severed his employment with the Employer for purposes of this Plan when, in accordance with the established practices of the Employer, the employment relationship.is considered co have actually terminated. In the case of i \-ho is an independent contractor of the E71plo�c7 Separation from Service shall be dectiied to h,,%c u,. curred %, hen the Participant's contract under %% hi, i Services are performed has caaiptetely expired .in�i terminated, there is no foreseeable possibilicv that the Employer will renew the contract or enter into a nr« contract for the Participant's services, .and •s noc paced that the Parttctpanc will become an Eniblo,.c: the Employer. 2.15 Trust: The 7.ust created under Article VI 3t :tic Plan which shall consist of all compensation Jctcrred under the Plan, plus any income and gains chercon. lc,; any losses, expenses and distributions to Pamc pants : -.,i Beneficiaries. Article II1. kdministration 3.01 Duties of the Employer: The Employer shall have the authority to make all discretionary decisions affecting the rights orbeaefits of Participants which may be required in the administration of this Plan. 'he Employer's decisions shall be afforded the niaxiniuin deference permitted by applicable lase, 3.02 Duties of Administrator: The Administrator. as agent for the Employer, shall perform nondiscrccionar,- administrative functions in connection with the Plan, including the maintenance of Participants' Accounts. the provision of periodic reports of the status of each Account, and the disbursement of benefits on 'behalf of the Employer in accordance with the provisions of this Plan. Article IV. Participation in the Plan 4.01 Initial Participation: An Employee may become a Participant by entering into a joinder Agreement prior to the beginning of the calendar month in w rich ^.e Joinder Agreement is to become effective to 'Icfer compensation not yet earned. 4.02" Am* `ndmenit "6-0oindtc Wgreement:.A Partici- pant may amend an executed joinder Agreement ;o change the amotinroPcompensation not yet earned which is to be defect=ed` (including the reduction of such future deferrals tcs zero) or to change his investment preference (subje'cr-to'such reitrtctioas as may resu;c from the nature'ofterms of any investment made bv the Employer). Such.amendment shall become a fecc - , :V- Resolution No. 2000 -1742 _ Page 5 4 P(J„ .i.1,•1•.. ., 11 d,1.,�. Pi,.,.n Q,iun,!n, D i! e ire•,! C , y „. ,, ,, ,. n P! d ., O,. n ni n r d n,! re to ., ,'. r r u, h t r of the beginning of the calendar month commencing after the dare the amendment is executed. A Participant may at anv time amend his Joinder Agreemenc to change the designated Beneficiary, and such amendment shall beconie effective immediately. Article V. Limitations on Deferrals 5.01 Normal Limitation: Except as provided in section 3.02, the maximum amount of Deferred Compensation for any Participant for any taxable year shall nor exceed the lesser of 57,300.00, as adjusted for the cost -of- living in accordance with Code section 437(e)(15) for taxable years beginning after December 31, 1996 (the "dollar limita- tion"), or 33 -1 /3 percent of the Participant's Includible Compensation for the taxable year. This limitation will ordinarily be equivalent co the lesser of the dollar limitation in effect for the taxable year or 25 percent of the Parncipanc's Normal Compensation. 5.02 Catch -Up Limitation: For each of the last three (3) taxable years of a Participant ending before his attainment of Normal Retirement Age. the maximum amount of Deferred Compensation shall be the lesser of: (1) $13.000 or (2) the sum of (i) the Normal Limitation for the taxable year, and (ii) the Normal Limitation for each prior taxable year of the Participant commencing after 1978 less the amount of the Participant's Deferred Compensation for such prior taxable years. A prior taxable year shall be taken into account under the preceding sentence only if (i) the Participant was eli- gible to participate in the Plan for such year (or in any other eligible deferred compensation plan established under Section 457 of the Code which is properly taken into account pursuant to regulations under section 457), and (ii) compensation (if any) deferred under the Plan (or such other plan) was subject to the deferral limita- tions set forth in Section 5.01 5.03 Other Plans: The amount excludable from a Participant's gross income under this Plan or any ocher eligible deferred compensation plan under section 457 of the Code shall not exceed $7,500.00 (or such greater amount allowed under Sections 5.01 or 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 organiza- tion described in section 501(c)(18) of the Code. Article Vol. Trust and Investment of Accounts 6.01 Investment of Deferred Compensation: A Trust is hereby created to hold all the assets of the Plan for the exclusive benefit of Participants and Beneficia- ries, except chat expenses and taxes may be paid from the Trust as provided in Section 6.03. The trustee shall be the Employer or such other person which agrees to act in that capacity hereunder. 6.02 Investment Powers: The trustee or the Plan Administrator. acting as agent for the trustee, shall have the powers listed in this Section with respect co invest- ment of Trust assets, except to the extent that the investment of Trust assets is directed by Participants. pursuant to Section 6.05. (a) To invest and reinvest the Trust without distinction between principal and income in any form of tangible or intangible property, real, per- sonal, or mixed, and wherever situated, including. but not by way of limitation, common or preferre stocks, shares of regulated investment companies ai.- other mutual funds, bonds, loans, notes, debentures. mortgages, certificates of deposit, interest. or par- ticipation, equipment trust certificates, commercial paper including but not limited to participation in pooled commercial paper accounts, contracts with insurance companies including but not limited to insurance, individual or group annuity, deposit administration, and guaranteed interest contracts, deposits at reasonable rates of interest at banking institutions including but not limited to savings accounts and certificates of deposit, and other forms of securities or investments of any kind, class, or character whatsoever and representing interests in any form of enterprise, wherever it may be located. organized or operated within or without the United States of America, whether such investments are income producing or not, without being limited in any respect by statute or court rule or decision of any jurisdiction now or hereafter in force purporting to limit or otherwise affect such investments. Assets of the Trust may be invested in securities or new ventures that involve a higher degree of risk than investments chat have demonstrated their invescm performance over an extended period of time. Resolution No. 2000 -1742 Page 6 IC.NIA KETIKENIENT COKPOPLAT(ON (b) To invest and reinvest all or any part of the assets of the Trust in anv common, collective or commingled trust fund chat is maintained bs• a bank or ocher institution and that is available to Em- ployee plans described under sections 437 or 401 of the Code, or any successor provisions thereto, and during the period of time that an investment through any such medium shall exist, co the extent of participation of the Plan, the declaration of trust of such common, collective, or commingled crust fund shall constitute a part of this Plan. (c) To invest and reinvest all or any part of the assets of the Trust in any group annuity, deposit administration or guaranteed interest contract issued by an insurance company or other financial institu- tion on a commingled or collective basis with the assets of any other 457 plan or trust qualified under section 40l(a) of the Code or any other plan de- scribed in section 401(a)(24) of the Code, and such contract may be held or issued in the name of the Plan Administrator, or such custodian as the Plan Administrator may appoint, as agent and nominee for the Employer. During the period that an invest- ment through any such contract shall exist, co the extent of participation of the Plan, the terms and conditions of such contract shall constitute a part of the Plan. (d) To purchase part interests in real property or in mortgages on real property, wherever such real property may be situated, and to delegate to a property manager or the holder or holders of a majority interest in such real property or mortgage on real property the management and operation of any part interest in such real property or mortgages. (e) To hold cash awaiting investment and to keep such portion of the Trust in cash or cash balances, withour liability for interest, in such amounts as may from time to rime be deemed to be reasonable and necessary to meet obligations under the Plan or otherwise to be in the best interests of the Plan. (f) To retain, manage, operate, administer, divide, subdivide, partition, mortgage, pledge, improve, alter, demolish, remodel, repair, and develop in any manner any property, or any part of or partial interest in any property, real or personal, held in the Trust, to lease such property for any period of time, and to grant options to sell, exchange, lease, or otherwise dispose of any such properr.. ",t;iUi,t regard to restrictions applicable to fidueiarce�, or others and without the approval of anv Court (g) To sell for cash or credit, redeem, exchange for other property, convey, transfer, or other%% ise dispose of any property held in the Trust in any manner and at any time, by private contract or ac public auction or otherwise. and no other person shall be bound to see to the application of the purchase money or to inquire into the validity. expediency, or propriety of any such sale or ocher disposition. (h) To enter into contracts for or to make coniniit- mencs either alone or in company with others to purchase or sell at any future date any property acquired for the Trust. (i) To vote or to refrain from voting any stocks, bonds, or other securities held in the Trust, to exercise any other right appurtenant to any securi- ties or ocher property held in the Trust, to give general or special proxies or powers of attorney with or without power of substitution with respect to such securities and other property, to exercise any conversion privileges, subscription rights, or ocher options or privileges with respect to such securities and other property and make any payments inciden- tal thereto, and generally to exercise, personally or by general or limited power of attorney, any of the powers of an owner with respect to stocks, bonds, securities, or other property held in the Trust at - any time. 0) To oppose or to consent to and participate in any organization. reorganization, consolidation, merger, combination. readjustment of finances, or similar arrangement with respect to any corporation. company, or association, any of the securities of which are held in the Trust, to do any act with reference thereto. including the exercise of options. the making of agreements or subscriptions and the payment of expenses, assessments, or subscriptions that may be deemed necessary or advisable in connection therewith, and to accept, hold, and retain any securities or other property chat may be so acquired. Resolution No. 20 0.10 _1P42n 4Japtson P.irkage Rrtaia Oorumrnt Page 7 DcI:rrr.1 Co "ptniorian Plan Dorunwtnt and rrwtt Nvrr11 hrr ) 99'S (k) To deposit any property held in the Trust with ,inv protective, reorganization, or similar commit - c. and to delegate discretionary power thereto and o pa% .Ind agree to pay part of its expenses and compensation and any assessments levied with respect to any such property so deposited. (1) To hold. to authorize the holding of, and to register any investment to the Trust in the name of the Plan, the Employer, or any nominee or agent of any of the foregoing, including the Plan Administra- tor, or in bearer form, to deposit or arrange for the deposit of securities in a qualified central, depository even though, when so deposited, such securities may be merged and held in bulk in the name of the nominee of such depository with other securities deposited therein by any other person, and co organize corporations or trusts under the laws of any jurisdiction for the purpose of acquiring or holding title to any property for the Trust, all with or. without the addition of words or ocher action to indicate that property is held in a fiduciary or representative capacity but the books and records of the Plan shall at all times show that all such invest- ments are part of the Trust. (m) Upon such terms as may be deemed advisable by the Employer or the Plan Administrator: as the case may be, for the protection of the 'interests of the Plan or for the preservation' of the vilde o(an investment, co exercise and enforce by suitfor -legal or equitable remedies or by other aciion, or to waive any right or claim on behalf of the Plan or any default in any obligation owing to the'Plin, to renew, extend the time for payment of, agree" to a reduction in the rate of interest bn: or agree to any ocher modification or change in the terms of any obligation owing to the Plan, to settle, compromise, adjust, or submit to arbitration any,cliirts or right in favor of or against the Platt, to exercise and' enforce any and all rights of foreclosure, bid for property in foreclosure, and take a deed in lieu of- foreclosure with or without paying consideration therefor, to commence or defend suits or.othet legal prdceedings whenever any interest of the Plan requires"it, and. co represent the Plan in all suits or legai'.proceedings in any court of law or'equity or before - anybody or tribunal. (n) To employ suitable consultants.* depositaries, agents, and legal counsel on behi1f`ot`che`Plan. (o) To make, execute, acknowledge, and deliver any and all deeds, leases, mortgages, convevances. contracts, waivers, relcises. or other instruments in writing necessary or proper for the accomplishment of any of the foregoing powers. (p) To open and maintain any bank account or accounts in the name of the Plan, the Emplover, or any; nominee or agent of the foregoing, including the Plan Administrator, in any bank or banks. (q) To do any and all other acts that may be deemed. necessary. to carry out any of the powers set forth herein._ 6.03 Taxes a�nd:.$xpeases:, -All taxes of any and all kinds whatsoever that may be levied or assessed under existing or future laws upon, or in respect to the Trust, or the income thereof, and all commissions or acquisi- cions or dispositions of securities and similar expenses of investment and reinvestment of the Trust, shall be paid from the Trust. Such reasonable compensation of the Plan Administrator, as may be agreed upon from rime V time by the Employer and the Plan Administrator, and reimbursement for'reiionable expenses incurred by the Plan Administrator in -_ erformance of its duties hereun- der (including but not limited to fees for legal, account- ing, investment and custodial services) shall also be paid from the T'ruit. 6.04 Payment of Benefits: The payment of benefits from the Trust in accordance with the terms of the Plan may be rnide 6yifilYl n'Aaminiscritor, or by any - custodian or other person so authorized by the Em- ployer to make such disbursement. The Plan Adminis- cracor, custodian or other person shall not be liable with respect to any distribution of Trust_ assets made at the direction of'the Employer. 6.05 Investment Funds: In accordance with uniform and non disc rtmtnatory rules 'e'stablished by the Employer and the Plan Administrator, the Participant may direct his /her Accounts to be invested in one (1) or more investment fundi available under the Plan, provided, however, tl ii the-Oarticipint's investment directions shall not violate any_ investment restrictions established by the Employer. Neither the Employer, the Adminis- trator, nor­iriy oSer'person shall be liable for any losses incurred by, virtue of.,fo.11owing such directions or with any reasonable administrative delay in imolemenrinq such directions.' .............................................._............ ............................... Resolution No. 2000 -1742 Page 8 1C.M.k•!R-E-TIRE1AENT CORPURATWIN 6.06 Valuation of Accounts: As of each Accounting Dare, the Plan assets held in each investment fund orered shall be valued at fair market value and the investment income and gains or losses for each fund shall be determined. Such investment income and gains or losses shall be allocated proportionately among all Account balances on a fund -by -fund basis. The alloca- rion shall be in the proportion chat each such Account balance as of the immediately preceding Accounting Dace bears to the total of all such Account balances as of char Accounting Dace. For purposes of this Article, all Account balances include the Account balances of all Participants and Beneficiaries. 6.07 Participant Loan Accounts: Participant Loan Accounts shall be invested in accordance with Section 8.03 of the Plan. Such Accounts shall not share in any investment iruome and "gains or losses ofihe investment funds described in Sections 6.05 and 606: ' " 6.08 Crediting of Accounts: The Participant:s'Account shall retlect the amount and value of th'e ihvestrn nti of ocher property obtained by the EmployeiF:F sroitigh die investment of the Participant's Deferred -Cotripensacibn pursuant to Sections 6.05 and 6.06. It is'aeticipated chat the Employer's investments with respect td'a Parrticioihc will conform to the investment preference specified in the Participant's Joinder Agreement. but nothing Iteiein'sha[l` _be construed to require the Employerto rftai fIdy particu- lar investment ota Participant `s Deferred, Compensation; Each Participant shall receive periodic reports, not less frequently cSart annually, showing rte then ci riche" value of his /her Account; 6.09 Transfers: (a) Incoming. Transfers: A transfer may, be ac- cepted from an eligible deferred corzs0 tl ation plan maintained by another employer snif_crtdiied to a Participant's Account under the'Plin. it`�Ytjtha' Participant has separated from service vi,ftw that employer and become an Employee of iht7l =tri plover, and (ii) the other employer'sPtpi!airid`e's chat such transfer will be made. i'lie'I~tiiiloyi-ft ray require such documentation from. ihe''jredfcessdr. plan as it deems necessary to effectuate ch�'trid3fer, to confirm chat such plan is an eligl8t`'tf %'�t�d�r compensation plan within the.ruearnts-gs ton 457 of the Code, and to assure diariri�isfets=a`ie. provided for under such plan. The Employer may . refuse to accept a transfer in the form of.assets other. chau cash, unless the Empiover and the Adni,;, , :% for agree to hold such other assets under me p!,1:: Any such transferred amount shall be created as a deferral subject to the limitations of Article V. except that, for purposes of applying the ;,nitration, of Sections 5.01 and 5.02, an amount deferred during any taxable year under the plan from •'. hich the transfer is accepted shall be creaccd as t ,c nis been deferred under this Plan during such ta�abie year and compensation paid by the cransfcror ployer shall be treated as tf tt had been raid b, cue Employer. (b) Outgoing Transfers: An amount may be transferred to an eligible deferred compensation plan maintained by another employer. and charged to a Participant's Account under this Plan, if (1) the Parr icieinc fiias's jparaced from service with the Empldyei and become an employee of the ocher employei, (ii) cRe other employer's plan provides that - such fransfe_r will be accepted, and (iii) the P3riicipani and the employers have signed such agreements as are.necessary to issure chat the EtnploV er's liability to pay benefits co the Pamci- pant his beery dAt:harged'ind assumed by the ocher employer. The l:rriployec may require such docu- meiicatio•n from the other plan as it deems necessary to effectuate the'tiiissfet, to contrm char such plan is an eligible deferred compensation plan %%ithtn the meaning of seitioti 457of the Code, and to assure that cranifersnaie`prov'ided for under such pian Such transfers shall'be made "only under such circum- scan'c'ef is ire perthitted under section 457 of the Code. and''the eigulitio "its thereunder. b.10- Employet LIabifityf In* event shall the Employer's liability:to pay benefits to a Participant under this Plan exceed`the �aliic of the 'amounts cred- iced co the Particio'ki'vi s Accouai;.neither the Employer nor the Administiatoc.sltall be liable for losses arising from -depreciation- ar''sttri.nka�t in the value of any investments ae i ire•d•[iiidei this Phan. Resolution No. 20007- 74r; J11 . {d,,pr I o it Pi,ki�e Rei.j, o 0o it tie it r Page 9 0".1 r r C d Ca-PC4i.JIIitis e1•tn Darn - rnr .in.1 Trn•r \,-r; ,, hrr lvu� Article VI1. Benefits 7.01 Retirement Benefits and Election on Separa- tion from Service: Except as otherwise provided in this Article VII, the distribution of a Participant's Account shall commence as of April 1 of the calendar year after the Plan Year of the Participant's Retirement, and the distribution of such Retirement benefits shall be made- in accordance with one of the payrment options described in Section 7.02. Notwithstanding the forego- trig, but subject to the following paragraph 'of this Section 7.01, the Participant may irrevocably elect within 60 days following Separation from Service to have the distribution of benefits commence on a fixed determinable dare other than that described in the preceding sentence which is at least 61 days after Separa- tion from Service, but nor taxer than April 1 of the year following the year of the Participin6 I�eiirement or attainment of age 70 -1/2, whichever is later. Norwich- . standing the foregoing provisions of-this Secngn 7 :01. no election to defer the commencement of benefits after a separation from service shall operate to defer the distribu- tion of any amount in the Participant's Loin Account in the event of a default of the Participant's [oan. Effective on or after January 'l, 1997, tfih; Participant may elect to defer the commencement of distribution of benefits to a fixed determinable date later than the date described above, but not later than April' I of the year following the year of the Pa'rticipant's retiremert or attainment of age 70 -1/2, whichever is liter. provided (a) such election is made after the 61st day following Separation from Service *and before commencement of distributions and (b) the Participan,cjK*M make_'only one (1) such election. Notwithstanding tfii~ foregoing. the Administrator, in orde* to enswe tide gt<derly admints— - tration of this, provision,. may establish a dbadline -after which such election to cue (er ihe'commencement of distribution of benefits S'haU-noc be allowed. 7.02 Payment Options: As provideed in Secrions 7.O l , 7.04 and 7.05, a Participant or Beneficiary. may elect to have value of the Particip'ant's Accoun aisirib'tleed in accordance with one of the following payment options. provided that such option is consistent with the limita- Lions set forth in Section 7.63. (a) Equal monthly, quarterly, semi - annual or annual payments in an amount chosen by the Participant, continuing until his /her Account's eichauiuedi' (b) One lump -sum payment; (c) Approximately "equal monthly, quarterly. ,crtit- annual or annual payments, calculated to continue Car a period certain chosen by the Participant. (d) Annual Payments equal to the minimum discri- butions required under Section 401(a)(9) of the Code over the life expectancy of the Participant or over the life "exp=ectancies of the Participant and his Beneficiary. (e) Payments equal to payments made by the issuer of a retirement annuity policy acquired by the Employer. (f) A split distribution under which payments under options (a). (fa'), (c) or (e) commence or are made at the same time, as elected by the Participant under Section 7.01, provided that all payments commence (or are made) by the latest benefit commencement date under Section 7.01 land that once a payment is made subsequent payments will b_ a made in subscan- tt A nonincreasing amounts. (g) AnK piyin2.rti op-tion elected by the Participant and agreed to by the Employer and Administrator, provided ' that such option must provide for substan- ttally nonincreasing payments for any period after the benefit co mmehcement'date under Section 7.01. A Participant's or Beneficiary's selection of a payment option made after December 31, 1995, under Subsec- tions (a), (c), oc (g}':above rnayinclude the selection of an automatic "annual cost -of- living increase. Such increase will be based bn the rise in the Consumer Price Index for All Urban Consumers (CPI =U) from the third quarter of the last year in which a cost -of- living in- crease was provided to the third quarter of the current year. Any increase will be made in periodic payment checks beginning. the following January. The first cost - of- living` increase will..be based on the rise in the CPI -U from.ihe'third'quarterof 1995 to*the' third quarter of 1996, and will be applied to amounts paid beginning January 1997. ' A Participant's or Beneficiary's election of a payment option must be made at least 30 days before the pay - ment of benefits 'is to commence. If a Participant or Beneticiary fails to make a timely election of a payment option, benefits shall be paid monthly under option (c) Resolution No Page 10 2000 -1742 ICMA RETIREMENT CURPOPLATtUN above for a period of five years or such shorter period of time necessary to ensure that the amount of any install- ment is not less than $1.200 per year. without the inclusion of a cost -of- living increase. 7.03 Limitation on Options: No payment option may be selected by a Participant under subsections 7.02(a) or (c) unless the amount of any installment is not less than $1.200 per year. No payment option: maybe selected by a Participant or Beneficiary under Sections 7.02. 7.04. or 7.05 unless it satisfies the requirements of Sections 401(a)(9) and 457(d)(2) of the Code, including that payments commencing before the death -.of t-hs Participant shall satisfy the incidental death benefits requirement under section 457(d)(2)(B)(i)(1). A cost -of- living increase included as part of a payment option selected under Section 7.02 shall not be considered to fail to satisfy the requirement under section 457(d)(2)( b) that any distribution made over a period of more than l year can only be made in substaciaally nonincreasing amounts. Unless otherwise elected by the Participant (or spouse. in the case of distributions described in _ Section'7.05'6'elowj�by the iiirie distributio at ns e equired to begin, life expectancies shall-be recalctlated annually. Such election shall be irrevocAle :as to the Participant (or spouse) and shall apply'to °ill - subsequent Years. The life expectancy of a nonspouse Beneficiary may not be recalculated. 7.04 Post- retirement Death- BeqtFi_ts: (a) Should the Participant die afie'r i� 'sAe his begun to receive benefits. under i piymenc opiort, the remaining paymenm if any. undtt'she payment option shall be payable to the Parxietpant's Benefi= Clary within the 30 -day penod'comrrserdcing with the 61st d'sy after the Pitticipant`i'dea'th,*unless ike Beneficiary elects payment finder a different pay- ment option that is avaliable under Section 7.02 within 60 days of the Participant's death. Any different payment option elected by 3 Beneficiary under this section must provide for payi'nents it a rate that is at least as rapid under thi 'paytsent: ' option that was applicable to the Participant- In no event shall the Employer or Admirtis.traw be liable to the Beneficiary for the amount of any payment made in the'naine of the Partic ipanebefore the Administrator receives proof of death of the Participant. .... ............................... (b) It the designated Beneficiary does not continue to live for the remaining period of payments un,ier the payment option, then the commuted value ur, 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 anv remaining payments under the payment option shill be paid cache estate in a lump sum. 7.05 Pre- retirement Death Benefits: (a) Should the Participant die before he has begun to receive the benefits provided by Section 7.01 . the value of the Participant's Account shall be payable to the Beneficiary commencing within the 30 -dav period commencing on che.91st day after the Participant's death, unless the Beneficiary elects a different fixed oi' determinable benefit commence- ment date within 90 days of the Participant's death. Such benefit commencement date shall be not lacer than the later of (1) December 31 of the year fol- lowing,the yeti a- e. P'articipant's death, or (ii) if the Beneficiary_' -is the Participant's spouse, Decem- ber 31 of the year in which th'ei Participant would have "itiained age 70 -1/2. (b) Unless a Ben ='different payment option prior to the benefit commencement dace. deach'beaeftts und'et this Section shall be paid in approxim tely equal induif installments over five year's, or over such shorter period as may be neces- sary co assure this the amount of any annual install- ment rs'noi less than $3,500. A.Beneficiary shall be created4s if he /she were a Participant for purposes of deterrilining the payment options' available under Section 7.02, provided,- however, that the payment option chosen by tht^Benefieiiry must provide for payments to the Beneficiary over a period no longer than the life'erpectancy of the Beneficiary, and provided that's'ueh' period cmiyr not exceed (1 3) years if the Behedc- uiy'is.not the P'articipant's spouse. (c) In the.event.that the Beneficiary dies before the piymerlrof death benefics'h�s commenced or been completed; the retraining value of the Parciciaanc's Account iha11 be`pifd to the estate of the Beneti- Clary'lit i lump sutra. In'tRb- event That the ParricipariCs estate is the t3enefieiary, payment ;hall be made to the' ezta *'p in a lxinip­ sum. Resolution No. 2000 -1742 Page 11 4 5 , P1 4 Jopf r,,u Pa, Itjge Retain Do n ne,, r Deferred Co nptn•ari, rr plan Doiunrenr and rrn;r. .\'oveotber 1 Q9h 7.06 Unforeseeable Emergencies: (a) In the event an unforeseeable emergency occurs. a Participant may apply to the Employer to receive chat part of the value of his her Account that is reasonably needed to satisfy the emergency need. If such an application is approved by the Employer. the 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 ocher 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 property due to casualty, or other similar and extraordinary unforeseeable circum- stances arising as a result of events beyond the control of the Participant. The need to send a Participant's child to college or to purchase a new home shall not be considered unforeseeable emer- gencies. The determination as to whether such an unforeseeable emergency exists shall be based on the merits of each individual case. 7.07 Transitional Rule for Pre -1989 Benefit Elec- tions: In the event that, prior to January 1, 1989, a Participant or Beneficiary has commenced receiving benefits under a payment option or has irrevocably elected a payment option or benefit commencement date, then that payment option or election shall remain in effect norwith- scanding any other provision of the Plan.. . 7.08 De Minimis Accounts: Notwithstanding the Foregoing provisions of this Article, if the value of a Participant's Account does not exceed $3,500 and (a) no amount has been deferred under the Plan with respect to the Participant during the 2 -year period ending on the date of the distribution and (b) there has been no prior distribution under the Plan to the Participant pursuant to this Section 7.08, the Participant may elect to receive or the Employer may distribute the Participant's entire Account without the consent of the Participant. Such distribution shall be made in a lump sum. Article VIII. Loans to Participants 8.01 Availability of Loans to Participants: (a) Effective January 1, 1997, the Employer may elect to make loans available to Participants in chcs Plan. if the Employer has elected to make loans available to Participants, a Participant may apply for a loan from the Plan subject to the limitations and other provisions of this Article. (b) The Employer shall establish written guidelines governing the granting of loans. provided that such guidelines are approved by the Plan Administrator and are not inconsistent with the provisions of this Article, and that loans are made available to all Participants on a reasonably equivalent basis. 8.02 Terms and Conditions of Loans to Participants: Any loan by the Plan to a Participant under Section 8.01 of the Plan shall sarisfy the following requirements: (a) Availability. Loans shall be made available to all Participants on a reasonably equivalent basis. (b) Interest Rate. Loans must be adequately secured and bear a reasonable interest race. (c) Loan Limit. No Participant loan shall exceed the present value of the Participant's Account. (d) Foreclosure. In the event of default on any installment payment, the outstanding balance of the loan shall be a deemed distribution. In such event. an actual distribution of a plan loan offset amount will not occur until a distributable event occurs in the Plan. (e) Reduction of Account. Notwithstanding any ocher provision of this Plan, the portion of the Participant's Account balance used as a security interest held by the Plan by reason of a loan ouc- standing to the Participant shall be taken into account for purposes of determining the amount of the Account balance payable at the time of death or distribution, but only if the reduction is used as repayment of the loan. Resolution No. 2000 -1742 Page 12 IC,\i.t itETI1kE*MEvr C 0 K P 0 K .4, T 1 0 N (f) Amount of Loan. At the time the loan is made. the principal amount of the loan plus the outstanding balance (principal plus accrued interest) due on anv other outstanding loans to the Participant from the Plan and from all ocher plans of the Employer that are qualified employer plans under section 72(p)(4) of the Code shall not exceed the least of: (1) $50,000. reduced by the excess (if any) of (a) The highest outstanding balance of loans from the Plan during the one (1) year period ending on the day before the dace on which the loan is made, over (b) The outstanding balance of loans from the Plan on the date on which such loan is made; or (2) One -half of the value of the Participant's interest in all of his /her Accounts under this Plan. (g) Application for Loan. The Participant must give the Employer adequate written notice, as determined by the Employer, of the amount and desired time for receiving a loan. No more than one (1) loan may be made by the Plan to a Partici- pant in any calendar year. No loan shall be ap- proved if an existing loan from the Plan to the Participant is in default to any extent. (h) Length of Loan. Any loan issued shall require the Participant to repay the loan in substantially equal installments of principal and interest, at least monthly, over a period that does not exceed five (5) years from the date of the loan; provided, however, that if the proceeds of the loan are. applied by the Participant to acquire any dwelling unit that is to be used within a reasonable time (determined at the time the loan is made) after the loan is made as the principal residence of the Participant, the five (5) year limit shall not apply. in this event, the period of repayment shall not exceed a reasonable period determined by the Employer. Principal installments and interest payments otherwise due may be sus- pended for up to one (1) year during an authorized leave of absence, if the promissory note so provides, but not beyond the original term permitted under this Subsection (h), with a revised payment schedule ' within such term) instituted at the end of .u:n period of suspension. (i) Prepayment. The Participant shall be permic:cd to repay the loan in whoie or in part at anv time prior to maturity, without penalty 0) Promissory Note. The loan shall be evidenced by a promissory note executed by the Participant and delivered to the Emplover. and shall bear interest at a reasonable race determined by the Employer. (k) Security. The loan shall be secured by an assignment of the Participant's right, title and interest in and to his /her Account. (l) Assignment or Pledge. For the purposes of paragraphs (f) and (g), assignment or pledge of anv portion of the Participant's interest in the Plan and a loan, pledge, or assignment with respect to any insurance contract purchased under the Plan, will be treated as a loan. (m) Other Terms and Conditions. The Employer shall fix such other terms and conditions of the loan as it deems necessary to comply with legal require- ments, to maintain the qualification of the Plan and Trust under section 457 of the Code, or to prevent the treatment of the loan for tax purposes as a distribution to the Participant. The Employer, in its discretion for any reason, may fix other terms and conditions of the loan, not inconsistent with the provisions of this Article and section 72(p) of the Code. 8.03 Participant Loan Accounts: (a) Upon approval of a loan to a Participant by the Employer, an amount not in excess of the loan shall be transferred from the Participant's ocher invest- ment fund(s), described in Section 6.05 of the Plan. to the Participant's Loan Account as of the Account- ing Date immediately preceding the agreed upon date on which the loan is to be made. (b) The assets of a Participant's Loan Account may be invested and reinvested only in promissory notes received by the Plan from the Participant as consid- eration for a loan permitted by Section 8.01 of the Plan or in cash. Uninvested cash balances in 2 Resolution No. 2000 -1742 Page 13 j? P I J N A J J I/ t r d it P , it J'( f R e i J r t D J, it a r Dl IeFICJ C,rsit p,•rt,.1ttort PI.tn Do, to sit eitr a 4d Trtt, t \'rr, utl•, Participant's Loan Account shall not bear interest. Neither the Employer, the Administrator, nor any .cher person shall be liable for any loss, or by reason of ariv breach, chat results from the Participant's exercise of such control. (c) Repayment of principal and payment of interest shall be made by payroll deduction or, where repayment cannot be made by payroll deduction, by check, and shall be Invested in one (1) or more other investment funds, in accordance with Section 6.03 of the Plan, as of the next Accounting Date after payment thereof to the Trust. The amount so invested shall be deducted from the Participant's Loan Account. (d) The Employer shall have the authority to estabiish other reasonable rules, not inconsistent with the provisions of the Plan, governing the establishment and maintenance of Participant Loan Accounts. Article IX. Non - assignability 9.01 In General: Except as provided in Article VIII and Section 9.02, no Participant or Beneficiary shall have any right to commute, sell, assign, pledge, transfer or otherwise convey or encumber the right to receive any payments hereunder, .which payments and rights are expressly declared to be non- assignable and non - transferable. 9.02 Domestic Relations Orders: (a) Allowance of Transfers: To the extent re- quired under final judgement. decree, or order (including approval of a property settlement agree- ment) made pursuant to a state domestic relations law, any portion of a Participant's Account may be paid or set aside for payment to a spouse, former spouse, or child of the Participant. Where necessary to carry out the terms of such an order, a separate Account shall be established with respect to the spouse, former spouse, or child who shall be en- titled to make investment selections with respect thereto in the same manner as the Participant; any amount so set aside for a spouse, former spouse, or child shall be paid out in a lump sum at the earliest date that benefits may be paid to the Participant, unless the order directs a different time or form of payment clothing in this Section shall be construed co auchonze any amount to be distributed under the Plan at a time or in a form that is not permitted under Section 45; of the Code. Any Payment made co a person other than the Participant pursuant cc this Section shall be reduced by required income tax withholding; the fact that payment is made to a person other than the Participant may nor 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 the 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 otherwise joined in a proceeding relating to such transfer, (ii) the Partict- pant has been notified of the pendency of such proceeding in the manner prescribed by the law of the jurisdiction in which the proceeding is pending for service of process in such action or by 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 proceed- ing relieving the Employer or Administrator from the obligation to comply with the judgment, decree, or order. (c) Participation in Legal Proceedings: The Employer and Administrator shall not be obligated co defend against or set aside any judgement, decree, or order described in paragraph (a) any legal order relating to the garnishment of a Participant's ben- efits, unless the full expense of such legal action is borne by the Participant. In the event that the Participant's action (or inaction) nonetheless cause. the Employer or Administrator to incur such ex- pense, 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 Resolution No. 2000 -1742 Page 14 (C.MA RETIkENIENT COPLPORATION Participant. fn the course of any proceeding relating to divorce, separation, or child support, the Em- ployer and Administrator shall be authorized to disclose information relating to the Participant's Account to the Participant's spouse. former spouse, or child (including the legal representatives of the spouse, former spouse, or child), or to a court. Article X. Relationship to other Plans and Employment Agreements This Plan serves in addition to any other retirement, pension, or benefit plan or system presently in existence or hereinafter established for the benefit of the Employer's employees, and participation hereunder shall not affect benefits receivable under any such plan or system. Nothing contained in this Plan shall be deemed to constitute an employment contract or agreement between any Participant and the Employer or to give any Participant the right to be retained in the employ of the Employer. Nor shall anything herein be construed to modify the terms of any employment contract or agreement between a Participant and the Employer. Article XI. Amendment or Termination of Plan The Employer may at any time amend this Plan pro- vided that it transmits such amendment in writing to the Administrator at least 30 days prior to the effective due of the amendment. The consent of the Administrator shall not be required in order for such amendment to become effective, but the Administrator shall be under no obligation to continue acting as Administrator hereunder if it disapproves of such amendment. The Employer may at any time terminate this Plan. The Administrator may at any time propose an amend- ment to the Plan by an instrument in writing transmit- ted 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 Em- ployer 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. Except as mas• :)e required to maintain the ,tauis Plar, as an eliz ble deferred compensation plan un.icr ieccien 157 o! -he Code or to comply with other applicable law,. no amendment or termination of the Plan shail divest any Participant of any rights %with respect to compensation deferred before the date of t e amendment or termination. Article X11. Applicable Law This Plan and Trust shall be construed under the lawc of the state where the Employer is located and is estab- lished with the intent that it meet the requirements of an "eligible deferred compensation plan" under Section 457 of the Code, as amended. The provisions of this Plan and Trust shall be interpreted .wherever possible in conformity with the requirements of chat section. Article X111. 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. Resolution No. 2000 -1742 Page 15 ATTACHMENT 2, 4 - P do .� do ptto it P,t: kapt Rrtrrn D.,:a wept i D e c I J r a r r ,- n T r a it of r i t e ! C .1£ .4 R e r t r e m t n i T r u t t. f d n n i r r 1 9 9; DECLARATION OF TRUST OF ICMA RETIREMENT TRUST Article I. Name and Definitions Section 1.1 Name: The Name of the Trust created hereby Is the IC�MA Renrement Trust. Section 1.2 Definitions: Wherever they are used herein, the following terms shall have the following respective meanings: (a) By -laws. The By -laws referred to in Section 4.1 hereof, as amended 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 ocher deferred benefits to its employees in accordance with the provision of section 467 of the Internal Revenue Code of 1986, as amended. (c) Employees. Those employees who participate in Qualified Plans. (d) Employer Trust. A crust created pursuant to an agreement between RC and a Public Employer, or an agreement between RC and a Public Employer for administrative services that is not a trust, in either cue 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) Investment Contract. A non- negoriable contract entered into by the Retirement Trust with a financial institution that provides for a fixed rate of return on Investment. (f) ICMA. The International Cicy/County Management Association. (g) ICMA /RC Trustees. Those Trustees elected by the Public Employers who, in accordance with the provisions of Section 3.1 (a) hereof, are also members of the Board of Directors of ICMA or RC (or in the cue of RC, former members of the RC Board). (h) Investment Adviser. The Investment Adviser that enters Into a contract with the Retirement Trust to provide advice with respect to investment of the Trust Property. (i) Portfolios. The separate commingled accounts of investment established by the Investment Adviser to the Renrement Trust, under the supervision of the Trustees, for the purpose of providing investments for the Trust Property. 0) Public Employee Trustees. Those Trustees elected by the Public Employers who, in accordance with the provision of Section 3.1(a) hereof, are full -time employees of Public Employers. (k) Public Employer Trustees. Public Enployers k, ho r .: -is trustees of the Qual16ed Plans. (l) Public Employer. A unit of state or local government. u- any agency or instrumentality thereof, chat 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 renrement 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 Associaudn Renrement Corporation. (o) Retirement Trust. The Trust created by this 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. The Trust Property shall include any Income resulting from 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 H. Creation and Purpose of the Trust; Ownership of Trust Property Section 2.1 Creation: The Retirement Trust was created by the execution of this Declaration of Trust by the initial Trustees and Public Employers and is established with respect to each participating Public Employer by adoption of this Declaration of Trust. Section 2.2 Purpose: The purpose of the Retirement Trust is to provide for the commingled investment of funds held by the Public Employers in connection with their Deferred Compensation and Qualified Plans. The Trust Property shall be invested in the Portfolios, in 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. Section 2.3 Ownership of Trust Property: The Trustees shall have legal tide to the Trust Property. The Public Em- ployers shall be the beneficial owners of the portion of the Trust Property allocable to the Deferred Compensation Plans The portion of the Trust Property allocable to the Qualified Plans shall be held for the Public Employer Trustees for the exclusive benefit of the Employees. Resolution No. 2000 -1742 Page 16 ICMA RETIREMENT CORPOR \T(UV Article 111. Trustees Section 3.1 Number and Qualification of Trustees: 'a)The Board of Trustees shall consist of nine Trustees. 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, ac the time of election, are members or former members of the Board of Directors of RC (the [CMA /P C Trustees). One of the Trustees who is a director of ICMA, and one -: the Trustees who is a director of RC, shall, at the time of e.:cnon, be full - time employees of Public Employers. (b) No person may serve as a Trustee for more than nvo terms in any ten -year penod. Section 3.2 Election and Term: (a) Except for the Trust- ees appointed co fill vacancies pursuant to Section 3.5 hereof. the Trustees shall be elected by a vote of a majority of the voting Public Employers in accordance with the procedures set torch 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, each to serve for a term of three years and until his or her successor is elected and qualified. Section 3.3 Nonninations: The Trustees who are full -time employees of Public Employers shall serve as the Norrunating Committee for the Public Employee Trustees. The Nominating Committee shall choose candidates for Public Employee Trustee in accordance with the procedures sec 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 resignanon shall be effective upon such delivery, or at'a later date according to the terms of the instrument. Any of the Trustees may be removed for cause, by a vote of a majority of the Public Employers. (b) Each Public Employee Trustee shall resign his or her position as Trustee within sixty days of the date on which he or she ceases to be a full-nme employee of a Public Employer. Section 3.5 Vacancies: The tern of office of a Trvscee shall terminate and a vacancy shall occur in the event his or her death, resignation, removal, adjudicated incompetence or ocher incapacity to perform the dudes 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 sec forth in this Section), to serve for the unexpired portion of the term of the Trustee who has re,ioie or othenyise ceased to be a Trustee. The appointment shaU b made by a written instrument signed by a majoncy of the Trustees. The person appointed must be the same type of Trustee (i.e.. Public Employee Trustee or ICMA /R C Trustet as the person who has ceased to be a Trustee. An appoincnier of a Trustee may be made in anticipation of a vacancy to occu at a later dace by reason of retirement or resignation, provided that such appointment shall not become et%ctive prior to such retirement or resignation. Whenever a vacancy shall occur, until such vacancy is tilled 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 dutie imposed upon the Trustees by this Declaration. A written instrument certifying the existence of a vacancy signed by a malonry of the Trustees shall be conclusive evidence of the _ existence of such vacancy. 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 or the Public Employers collectively. Article IV. Powers of Trustees Section 4.1 General Powers: The Trustees shall have the power to conduct the business of the Trust and to carry on r operations. Such power shall include, but shall not be limice co, the power to: (a) receive the Trust Property from the Public Employers, Public Employer Trustees or the trustee or acirrunistrac under 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 Investment Contracts in which the Trust Property may be invested. selection of the ocher 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 the performance of the Investment Adviser and approve annually the contract with such Investment Adviser: (d) invest and reinvest the Trust Property in the Portfolios. the Investment Contracts and in any other investment recommended by the Investment Adviser, but not including secunties issued by Public Employers, provided that if a Public Employer has directed chat its monies be invested in one or more specified Portfolios or in an Investment Conn-act. the Trustees of the Resolution 4o. 2000 -1742 — Page 17 a i - Pl.,,r i J yr „ Pi. k j � e R rrr,�i D , , ,,.. n (J c, lara r: an o 1 rrn: r o ! r)ri 7C.1(.i Ri f rrmenr Retirement Trust shall invest such monies in accordance With such directions; (e • -p such portion of the Trust Property in cash or cash ,)alances as the Trustees, from time to time, may deem co be in the best interest of the Retirement Trust created hereby without liability for interest thereon; (f) accept and retain for such time as they may deem advisable any securities or other property received or acquired by them u Trusc - -s hereunder, whether or not such securities or other pre, =erty would normally be purchased as investment hereunder, (g) cause any securities or ocher property held as part of the Trust Property co be registered in the name of the Retirement Trust or in the name of a nominee, and co hold any investments in bearer form, but the books and records of the Trustees shall at all times show that all such investments are a part of the Trust Property: (h) make, execute, acknowledge, and deliver any and all documents of transfer and.conveyance and any and all ocher instruments that may be necessary or appropriate to carry out the powers herein granted; (il vote upon any stock, bonds, or other securities; give general or special proxies or powers of attorney with or without power of substitution; exercise any conversion privileges, subscription rights, or other options, and make any payments incidental thereto; oppose, or consent to, or otherwise participate in, corporate reorganizations or to other changes affecting corporate securities, and delegate discretionary powers and pay any assessments or charges in connection therewith; and generally exercise any of the powers of an owner with respect to stocks, bonds, securities or other property held as pan of the Trust Property; G) enter into contracts or arrangemenus 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 chat the aggregate amount of such borrowings shall 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 Propern- incurred in connection with the Deferred Compensation Plans, Qualified Plans, or the Employer Trusts and deduct such expenses from that portion of the Trust Property to which such expenses are properly allocable; (n) pay out of the Trust Property all real and personal property taxes, income taxes and ocher taxes of any and all kinds which, in the opinion of the Trustees, are properly levied, or assessed under existing or future lases upon, or in respect of, the Trust Property and allocate any such taxes to the appropnate accounts; (o) adopt. amend and repeal the By- laws, provided chat such By -laws 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 Compensation Plan under Section 457 or a Qualified Plan under Section 401 of the Internal Revenue Code, as amended; (q) issue the Annual Report of the Retirement Trust, and the disclosure documents and other literature used by the Retirement Trust; (r) in addition to conducting the investment program authorized in Section 4.1(d), make loans, including the purchase of debt obligations, provided that all such loans shall bear interest at the current market rate; (s) contract for, and delegate any powers granted hereunde to, such officers, agents, employees, auditors and attorneys as the Trustees may select, provided chat the Trustees may not delegate the powers set forth in - paragraphs (b), (c) and (o) of this Section 4.1 and may not delegate any powers if such delegation would violate their fiduciary duties; (t) provide for the indemnification of the Officers and Trustees of the Retirement Trust and purchase fiduciary insurance; (u) maintain books and records, including separate accounts for each Public Employer, Public Employer Trustee or Employer Trust and such additional separate accounts as are required under, and consistent with, the Deferred Compensation or Qualified Plan of each Public Employer, and (v) do all such acts, take all such proceedings, and exercise all such rights and privileges, although not specifically mentioned herein, as the Trustees may deem necessary or appropriate to administer the Trust Property and to carry out the purposes of the Retirement Trust. Resolution No. 2000 -1742 Page 18 ICMA RETIREMENT CORPORATION Section 4.2 Distribution of Trust Property: Distributions of the Trust propem• shall be made co, or on behalf of.h_ Public Employer or Public Employer Trustee. in accordance with the terms of the Deferred Compensation Plans, Quah6ed Plans or Employer Trusts. The Trustees of the R eciremenc Trust shall be fully protected in making payments in accor- dance svuh the directions of the Public Employers, Public Employer Trustees or trustees or administrators of any Em- ployer Trust without ascertaining whether such payments are in compliance with the provisions of the applicable Deferred Compensation or Qualified Plan or Employer Trust. Section 4.3 Execution of Instruments: The Trustees may unanimously designate any one or more of the Trustees to execute any instrument or document on behalf of all, including but nor limited to the signing or endorsement of any check and the signing of any applications, insurance and other contracts, and the action of such designated Trustee or Trust- ees shall have the same force and effect as if taken by all the Trustees. Article V. Duty of Care and Liability of Trustees Section 5.1 Duty of Care: In exercising the powers herein- before granted to the Trustees. the Trustees shall perform all acts within their authority for the exclusive purpose of provid- ing 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 farruliar 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 noc be liable for any rrustake of judgment or other action taken in good faith, and for any action taken or omitted in reliance in good faith upon the books of account or other records of the Retirement Trust. upon the opinion of counsel. or upon reports made to the Retirement Trust by any of its officers, employees or agents or by the Investment Adviser or any sub - investment adviser, accountant, appraiser or other expect or consultant selected with reasonable care by the Trustees, officers or employees of the Renrement Trust. The Trustees shall also not be liable for any loss sustained by the Trust Property by reason of any investment made in good faith and in accordance with the standard of care set forth in Section S.1. Section 5.3 Bond: No Trustee shall be obligated to give any ,ond or ocher 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 Eniplo\ rrs ;nd Public Employer Trustees a written report of the trans.ic- :ions of the Retirement Trust, including tinancial statements � hich shall be certified by independent public accounrancs chosen by the Trustees. Article VI1. Duration or Amendment of Retirement Trust Section 7.1 Withdrawal: A Public Employer or Public Employer Trustee may, ac any time, withdraw troni this Retirement Trust by delivering to the Board of Trustees i ,.%ntten 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 trom 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 tinancial institution to which such property shall be transferred by the Trustees of the Renrement Trust or by the trustee or adrtuntstrator under an Employer Trust. Section 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 be paid out to the Public Employers. Public Employer Trustees or the trustees or administrators 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 casang one vote. Section 7.4 Procedure: A resolution to terminate or amend the Renrement Trust or to remove a Trustee shall be submit - red to a vote of the Public Employers if (i) a majoncy of the Trustees so direct, or, (ii) a petition requesting a vote signed by not less chat 25 percent of the Public Employers, is subrrutted to the Trustees. Articl* Vlll. Miscellaneous Section 8.1 Governing Law: Except as otherwise required by state or local law, this Declaration of Trust and the Retire- ment Trust hereby created shall be construed and regulated by the laws of the District of Columbia. Section 8.2 Counterparts: This Declaration may be executed by the Public Employers and Trustees in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Resolution No. 2000 -1742 Page 19 STATE OF CALIFORNIA ) COUNTY OF VENTURA ) CITY OF MOORPARK ) ss. I, Deborah S. Traffenstedt, City Clerk of the City of Moorpark, California, do hereby certify under penalty of perjury that the foregoing Resolution No. 2000 -1742 was adopted by the City Council of the City of Moorpark at a meeting held on the 17th day of May 2000, and that the same was adopted by the following vote: AYES: Councilmembers Harper, Rodgers, Wozniak and Mayor Hunter NOES: None ABSENT: Councilmember Evans ABSTAIN: None WITNESS my hand and the official seal of said City this 1St day of June 2000. Deborah S. Traffenstedt, City Clerk (seal)