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Res 83-015
RESOLUTION NO. 83-015 A P~ESOLUTION OF THE CITY COUNCIL OF THE CITY OF POWAY, CALIFORNIA AUTHORIZING CITY EMPLOYEES TO PARTICIPATE IN A DEFERRED COMPENSATION PLAN PROVIDED BY THE ICMA-RC WHEREAS, the City of Poway has in its employee personnel who are and will be rendering valuable services to the City; and WHEREAS, the city of Poway has considered the establishment of a deferred compensation plan for the benefit of said employees; and WHEREAS, a deferred compensation plan is made available to the City of Poway and said employees by the International City Management Association-Retire- ment Corporation; and WHEREAS, said employees often are unable to acquire retirement security under other existing and available retirement plans due to the contingencies of employ- ment mobility; and WHEREAS, the City of Poway receives benefits under said plans by being able to assure reasonable retirement security to said employees, by being more able to attract competent personnel to its service and by increasing its flexibility in personnel management through elimination of the need for continued employment for the sole purpose of allowing an employee to qualify for retirement benefits. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Poway establish said deferred compensation plan for said employees and hereby authorizes its Mayor to execute the deferred compensation plan with the International City Management Association-Retirement Corporation, attached hereto as Appendix A; and IT IS FURTHER RESOLVED that the City Manager of the City of Poway may, on behalf of the City of Poway execute all Joinder Agreements with said employees and other eligible officials and officers, which are necessary for said persons participation in the plan, an example of which is attached hereto as Appendix B, except that any Joinder Agreement for the City Manager shall be executed by the Mayor. PASSED AND ADOPTED by the City Council of the City of Poway, California, at a regular meeting thereof this 22nd day of March, 1983. Mary She~rdson, May ~rjorie K. Wahlsten, City Clerk ~ ~ APPENDIX A INTERNATIONAL CITY MANAGEMENT ASSOCIATION RETIREMENT CORPORATION DEFERRED COMPENSATION PLAN Amended as of June 28, 1974 and March 23, 1979 It is hereby agreed that this DEFERRED COMPENSATION PLAN shall be in effect on the date upon which the Employer has caused it to be executed by an official affixing his signature on behalf of the Governing Body in the space provided below. However, the DEFERRED COMPENSATION PLAN will not be legally binding upon the International City Management Association Retirement Corporation until a Notice of Plan Acceptance has been supplied by it. Legal Name of the Employer Attest for the Employer: Signature of Authorized Official For the Employer: By Signature of Authorized Official Date of Signature Print Name and Title SEE INSTRUCTIONS FOR IMPLEMENTATION PRIOR TO COMPLETING THIS SECTION Complete the followmg prior to madmg th~s Agreement to the Rehrement Corporahon. Full Name (City of. County of. etcJ Title ot Othc,al to whom correspondence and repp{ts are to be mailed: (not namel Address: 0nclude z*pcode) Employers Federal Tax Idenhhcahon Number: HOW often will you make contributions? What ~S the date ot your first confrlbullon9 Total Number ol Employees: Number ol employees el~g,ble lo participate: P,RELIMINARY STATEMENT ESTABLISHMENT OF THE PLAN AMENDMENTS The International City Management Association Retirement Corpora- lion, hereinafter the Retirement Corporation or ICMA-RC, is a nonprofit Delaware Corporation. It has been classified as a tax-exempt organization ur,~i~ r the provisions of Section 501 (c)(3) of the Internal Revenue Code. As an aid in the improvement of state and municipal administration in general, he Retirement Corporation is organized for the purpose of receiving and investing deferred compensation funds of state and local governments and their related and controlled public interest organizations which are tax-exempt under Section 501 of the Internal Revenue Code, hereinafter referred to as"Employers"; to act as trustee and/or agent for the collection and reinvestment of the income therefrom; and to act as agent for such Employers and at their explicit direction for the distribution of the funds and assets of their accounts to their participating Employees (including independent contractors) in accordance with options provided in this International City Management Association Retirement Corporation Deferred Compensation Plan, hereinafter referred to as the "Plan," or the "ICMA-RC Plan." The ICMA-RC Plan is set out below in two parts: I. The Deferred Compensation Employment Agreement; and II. The Master Trust Agree- ment. As set out below, the Employer adopts this Plan as its Agreement with the participating Employees and ICMA-RC, and the Employees shall participate in the Plan through the execution of a Joinder Agreement, which by its terms incorporates all of the provisions of the Plan. A copy of the Plan shall be supplied to each Employee for his study and under- standing prior to his execution of the Joinder Agreement. The Employers, through their participation in the Plan, express their desire to have the benefit of the continued loyalty, service and counsel of their Employees and to assist them in providing for the contingencies of old age dependency, disability, and death. This Plan may be amended from time to time for purposes of assuring its conformance to the requirements of any applicable law or rule or regula- tion pursuant thereto, and to preserve the tax-exempt status of the Plan and the Retirement Corporation. No amendment may either directly or indirectly operate to derive any participating Employer of its beneficial interest in the Trust as it is then constituted. The Retirement Corporation will notify the participating Employers of any amendment to this Plan no later than sixty days prior to its effective date. Any such amendment will become effective after the expiration of that period of time, except as to those Employers as may file an objection. No amendment proposed by participating Employers shall be effective unless agreed to by the ICMA Retirement Corporation over the signature of an Officer. PART I DEFERRED COMPENSATION EMPLOYMENT AGREEMENT 1. Deferred Compensat~on--lnibal Decision--Future Changes--Limits 1.1 For the purpose of this Plan the follow~ng dehn~hons apply: a. "Total compensation' is the total of compensation fo be paid by the Employer for the se~qces ol the Employee, regardless of the terms used for its components, as. for example, "base pay, "in addihon to base pay." "employer's contr[buhons.- etc; b "DeferredcomDensatlon ~sthat amount Or percentage Of the total compensahon of the Employee wmch the Employer currantly defers from One payment to the Employee. and. ,nsteaq. depos.ts same into a Deferred Compensabon Account with the'Retirement Corporation under the terms ct th,s Plan Deterred compensabon may mclude amounts ~rom or percentages of Poth '.base Day and "employer's contnbunons" or it may mclude amounts from or percentages Pt only one of mese components c "Current comDensahon' ~s thai portion of the Employee s Iotal compensahon which ~S not deterred Compensation as deferred compensahon ts dehned here~n: and d Base Day iS the slated salary pt the Employee f.2 Compensation may be deferred for any calendar month only if a Joinder Agreement for such deferral has been entered into before the begmning of such month The determmation of the m~hal amount Or percentage and of any future change in amount or percentage of deferred compensation must be made before the beginning of the calendar month for which the compensahon payable. Such future changes m~y be made more frequently than once per calendar year only at the express direction of the Employer, 1.3 The amount of total compensation may be adjusted from time to time w~thout altering the terms of this Plan However, the per- centage or amount of deferred compensation may be adjusted only in accordance with 1.2 above. Any such adjustment of the per- centage or amount of deferred 6ompansation shall be com- municated to the Employer's agent, the Retirement Corporation. and the deposits in the adlusted percentages or amounts, if changed from the prior existing percentages or amounts, shall thereafter be made by the Employer into its Retirement Corpora- tion Account, 1.4 Compensation deferred under the Plan for any Employee's taxable year begmning after December 31, 1978. shall not exceed the lesser of (1) $7,500, or (2) 33-1/3 percent of the difference between an Employee's total compensation and his deferred compensahon, except as prowded in 1 5 below. 1.5 For one or more of the Employee's last three t~xable years ending before he attams normal rehrement age under the Plan. the ceding set forth in Paragraph 1 4 above shall be the lesser of -- a. $15,000. or b. the sum of -- (1) the Plan ceiling estabhshed for purposes of Paragraph 1 4 for the taxable year (determined w~thout regard to th~s Paragraphh plus (2) so much of the Plan ceding established for purposes of Paragraph 1 4 for taxable years before the taxable year as has not theretofore been used under Paragraph 1 4 or this Paragraph The amounl of compensation deferred under this Paragraph shall not exceed an Employee's total compensation The words"normal rebrement age," as used ~r) this Paragraph, sha~l mean the "designated age," as defined in Paragraph 6 below 2. Deferred Compensation Account Under th~s Plan, deferred compen- sation shall be credited and pa~d ~nto the Trust estabhshed and maintained wilh the International C~ty Management Association Re- tirement Corporation as Trustee The Retirement Corporation Is nonprofit corporabon formed for the specific purpose of investing and otherwise admmtstermg the funds of sa~d Trust The Trust may be revoked at any hie by the Employer. and upon revocahon of smd Trust, all of the assets thereof shall return to and revert to the Employer The Employer shall keep accurate books and records with respect to the Employee's total compensation or other earned income and w~lh respect to amounts pa~d Itc smd Trust 3 ¢)wnersh~p of Funds Neither fha Employee nor any benehc~ary thereof shall have any ~nlerest whatsoever ~n the funds pa~d into the Deferred ComDensahon Account. ~n the property or nght5 purchased w~lh Such funds, or in the ~ncome attributable to such funds, property, or rights. which shall al all times remain as assets of the Employer. subject to its absolutedomlnlon Control andrlght oJw~lhdrawalunhlsuChtlmeas[he funds or assets ol the Account are distributed tO the Employee in accordance w~th the provisions of this Plan The Obilgabon DJ the Employer to pay deferred compensabon ~s conlracluai only. the Employee having no preferred Or special interes[ Or Claim by way of lrust. annuity, or olherwise in and to the speclhc funds ~lnO assets held in Deferred Compensation Account The conlracfual Obllqahon of Ihe Emoloyer to p~iy the funds anti assets tn ItS Deterred Compens~bon ACCOunl to the Employee or his beneficiary On the ap~hcable dlSlrlbuhon date shall be a continuing obligation upon the Employer, and shall not be relieved by any agreement between the Employer and any other party, except as prowded in Secbon 2 of Paragraph 13 of this Plan, and shall not be affected in any manner by amendment or revocation of the Trust referred to in Paragraph 2 herein or by reversion of the Trust Funds to the Employer The provisions of this Paragraph shall supersede and control any other pr0vis~on of this Plan which could be interpreted to be in conflict therewith, 4, Administration of Funds. The funds deposited in the Deferred Compensation Account shall be invested and reinvested by the Retire- ment Corporation. as provided for in the Trust Fund described in Part II of this P~an. m any manner which in its sole discretion it deems desirable, without regard at any time to any legal limitation governing the investment of Such funds The Account shall also reflect the gain or loss resulting from the investment and reinvestment thereof. This Trust Fund may be commingled with others established by the Trustee with other Employers under this Plan 5. Designation of Investments. Each participating Employer, being advised of the preferences of, and for the benefit of each of its participahng Employees. shall designate the percentage of the deferred compensation involved which shall be invested in the respective types of investment funds (accounts) of the Retirement Corporation, such as the Equity (Variable) Fund or the Fixed-Income Fund. unless the laws of the applicable state or local government require otherwise, in which case those laws shall govern Future elections to change the percentage to be invested in each type of Fund may only be made prior to and for the next succeeding annual period of service for which the compensation ~s payable by fihng written notice thereof with the Retirement Corporation, Such notice wdl not be effective untiJ received by the Retirement Corporation. 6. Payment of Deferred Compensation. The words "designated age," as used in th~s Paragraph and ~n Paragraph 10 of this Plan. shall mean the designated age which appears ~n the Jomder Agreement executed by the parhcipatmg Employee These words, as used in this Paragraph, m Paragraph 10. and ~n the Jo~nder Agreement, shall also include the following, without reDetmon therein: "or later, in the sole discretion of the Employer. al the end of h~s employment agreement, d Employee continues ~n the employ of the Employer after he attains the designated age." Except as prowded m Paragraph 9 (unforeseeable emergency), no payment~ of deferred compensation shall be made prior tO an Employee*s separahon from serwce w~fh the Employer At such nme as the Employee reaches the designated age. becomes permanently disabled, or dies, whichever Occurs first, he. or his benehclar¥ or beneficiaries, nominee or estate is/are entitled to receive payment from the Deferred Compensa- tion Account outstanding on the date on which one of the foregoing occurs Payments occasioned by the Employee hawng reached the designated age, becoming permanently d~sabled, or by h~s death shall be made ~n accordance with the provisions Of Paragraph 7 hereof as follows: a Payments in monthly, quarterly semi-annual, or annual payments over the Darted of hie expectancy Of the Employee ~n accordance w~th the tollowan(J procedure: Ucon reaching the designated ,age. or becoming cermanently disabled from permanent full-brae employment, whichever first OCCURS. the Employee s hfe expectancy shall be determined Dy reference to Standard U S Mortality Tables. the amounts of assets and accumulations ~n the Deferred ComPensation Account pt the Employee 5nail COmDlelely deptefe fne said Accounl al the attains the designated age, amounts equal to the benefits received by the Emplc,er. under retirement annuity policies, ahall be paid to the Er~ployee, at such time as he attains the designated age; or, in the case of death, payment to his beneficiary or beneficiaries, nominee or estate pursuant to the procedures provided in said policies and Paragraphs 7 and 8 of this Plan; or C. Payments in monthly, quarterly, ~em~-annual, or annual install- ments over a period of not exceeding ten (10) years, said payments to include a reasonable return on the funds, assets and accumulations in the Deferred Compensation Account, tess the amount of expected monthly, quarterly, semi-annual, or annual distribution, over the said ten (10) year period; or d. One lump-sum payment. 7. Selection of Method of Payment. The method of payment shall be selected by the Employer, acting through the Retirement Corporation, as its duly authorized agent, due consideration being given to health, financial circumstances and family obligations of the Employee. in this regard, the Employee may be consulted; however, he shall have no voice in the decision reached. 8. Payments m the Event of Death. a. During the Period of Distribution. In the event of the Employee's death during the period of distribution, the Employee's beneficiary shall be entitled to receive payments ~n accordance with the payment method being employed at the time of the Employee's death. With the consent of the Employer, acting through the Retirement Corporation as its duly authorized agent, said beneficiary may elect to receive a lump sum ~n lieu of installment payments. b. Prior to Distribution In the event of the death of the Employee pr~or to the distnPubon, the funds and assets of the Deferred Compensa- tion Account shall be paLd ~n accordance w~th one of the methods described in Subparagraphs a. P, c. or d of Paragraph 6 hereof. The selecbon of said method shall be made by the Employer acting through the Retirement Corporation as its duly authorized agent. 9. Payments in the Event of Unforeseeable Emergency. In the event that a participating Employee is faced with an unforeseeable emergency (de- termined in the manner prescribed by Federal regulation), the Employer may direct the Retirement Corporation as agent to make disbursements from the Deferred Compensation Account of amounts reasonably neces- sary to satisfy the emergency needs of the Employee. 10. Payment Dates. Payments shall commence on the first day of the month, following the attainment of the designated age, or later, on the first day of the month after the end of his employment agreement, if Employee continues in the employ of the Employer after he attains the designated age, or likewise following permanent d~sability, or death; and. in the case o! installment payments, shall be made continuously thereafter on the first day of each succeeding month, or, in the event quarterly, semi-annual, or annual payment installment periods are applied, then continuously thereafter on the first day of each succeeding month which begins the time period (quarterly. etc,) involved untd such nme as the Deferred Compensa- Pon Account ~s depleted in ~ts enhrety. 1 1 0[soursmg Agent. The Rehrement Corlx)ration shall act as agent of the Employer for purposes of disbursing payments. The ultimate obligation for making such payments, however, shall remain wtth the Emp!oyer. 12. Accumulahon Dunng the D~str~buhon Period Dunng the period of d~str~bubon, the Employee or his beneficiary or beneficiaries, nominee or estate, as the case may be. shall continue to be credtted w~th all the interest, accumulations, anq increments on the und~stnbuted funds and assets ,n the Deterred Compensation Account. Untl~ SUCh Account ~s depleted ,n ,ts enhrefy 13. Secbon 1 Termmahon of Employment UPon termmahon of the Employee s serwces, for any reason other than death, the funds, assets. and accumulations ~n the Delerred Compensation Account shall not be translerred to an account w~lh a new employer of the Employee, and. ~nstead. they shall remain ~n the original Account as assets of fha old Employer until such time as they are distributed ~n accordance with the I~'ovisions of this Plan, except as provided in Section 2 of this Paragraph. ~ection 2. Transfer of Employment with Consideration Between Employers--Tripartite Agreement, In the event the Employee accepts employment with a new employer participating in the ICMA-RC Deferred Compensation Plan, then, if the past Employer finds that it has no present 0¢ future need of the funds, assets, and accumulations in the said Account for the payment of its general creditors or for any other purpose what- soever, in consideration of its desire to avoid the continumg expense of maintaining records, and receiving, examining, verifying and filing annual reports of the Retirement Corporation, and in consideration of avoiding the possible future expenses of litigation of Employee's continuing cdr> tractual rights to payment of deferred compensation on his retirement as herein provided in the event of any possible future revocation and withdrawal by the past Employer of the funds, assets, and accumulations in the said Account, the past Employer may, at its discretion, authorize the Retirement Corporation, as its agent, to propose to the new Employer that the funds, assets, and accumulations of the said Account be transferred to the ownership, control, and right of withdrawal of the new Emoloyer, and to do so in the event the new Employer. in consideration of the increased ~alue of the Employee's services by reason of the experience gained while in past employment, agrees to accept same, and the respective Employers and the Employee sign an appropriate form of Agreement in which the new Employer also agrees to assume the continuing contractual liability to pay deferred compensation so transferred upon retirement of the Employee and the Employee releases the past Employer from said continuing obligation to do same. Section 3. Payment of Deferred Compensahon after Termmation of Employment. Jn the event a participating Employee separates from service with the Employer pnor to the designated age which appears in the Joinder Agreement, the Employer may chrect the Retirement Corporation, as agent, to distribute the funds and assets of the Deferred Compensation Account to the Employee in one lump-sum payment. 14. Losses. The Employer shall not be responsible for any loss due to investment or failure pt mvestment of funds and assets in said Deferred Compensation Account nor shall the Employer be required to replace any loss whatsoever which may result from sa~d investments. 15. Nonassignability of Deferred Compensation The Employee during his lifetime shall not be entitled to commute, encumber, sell Or otherwise dispose of his rights to receive deferred compensation payments prowded for here~n, and the right thereto shall be nonassignable and nontrans- ferable. In the event of any attempted assignment or transfer thereof, the Employer shall have no further liabihty under this Agreement. 16. Participation in Other Employee Benefit Plans. Nothing herein con- tained shall m any manner modify, ~mpa~r. or affect the exisbng or future rights or interest of the Employee la) to receive any employee benefits to which he would otherwise be enhtled, or lb) as a partic~pant m any future pension plan, ~t being understood that the rights and reforests of the Employee to any employee benefits or as a partlopant or benehclary m or under any or all such plans respechvely shall conhnue ~n full force and effect un~mpmred, and the Employee snail have the nght at any hmo hereafter to become a benehclary under or pursuant to any and all such plans 17 Dehnmons The meamng of any term or terms, phrase, clause or Rebrement Corporahon, snail be denned as these are defined m ARTICLE I1. Sechon 2 of the By-Laws. Mascuhne pronouns, whenever used harem. include the fem~mne pronouns, and the smgular ~ncludes the plural unless the cOntexl requires anoIner meaning 18 Vahd~ty of Agreement Th~s Agreemenl shall noI be vahd or en- Iorceable ul~iess s~gned by an oH~cer of EmOloyer. aulhor[zed by lhe governing body pi the Employer. as for example, the City CouncIL and unless this Agreemenl ~S ~mplemented by ~he execution pi the Jo~ncler Agreement PART II. MASTER TRUST AGREEMENT AGREEMENT made t~y and between the aforenamed Employer and the International City Management Association Rehrement Corporation (heremaffer the "Trustee" or "Retirement Corporahon'), a nonprofit corporation organized and ex,sting under the laws of the State pt Delaware, for the purpose of investing and otherwise administebng the funds set aside by Employers in Connection w~th Deferred Compensation Agreements with Employees WHEREAS, the Employer desires to enter into agreements with its Employees whereby its Employees agree to defer payments of specified percentages of or amounts from their total compensation as "deferred comoensation" is defined in said agreements until the occurrence of certain events; WHEREAS. in order that there will be sufficient funds avadable to discharge the foregomg contractual obligations, the Employer desires to set aside periodically amounts equal to the amount of compensation deferred; WHEREAS, the funds set aside, together with any and all investments thereto, are to be exclusively within the dominion, control, and ownership of the Employer, and subject to the Employer's absolute right of with- drawal, the Employee hawng no interest whalsoever thereto; NOW, THEREFORE. th~s Agreement witnesseth that la) the Employer will pay monies to the Trustee to be placed ~n Deferred Compensation Accounts for the Employer: (b), the Trustee covenants that it will hold said sums, and any other funds which i1 may rede*va hereunder, in trust for the uses and purposes and upon the terms and conditions hereinafter staled; and (c) the parties hereto agree as follows: ARTICLE I. General Duties of the Parties. Section 1 1. General Duty of the Employer. The Employer shall make regular periodic payments equal to the amounts of its Employees' compensahon which are deferred ~n accordance with the terms and conditions of Deferred Compensation Employment Agreementswith such Employees. or with any subsequent modification thereof. Sechon t 2 General Dunes of the Trustee. The Trustee shall hold all funds received by ~t hereunder, which, together with the tacoma therefrom. shall conshtute the Trust Funds. It shall administer the Trust Funds, collect the m~ome thereof, and make payments therefrom, all as heremafter prowded The Trustee shall also hold all Trust Funds which are transferred to it as successor Trustee by tile Employer from existing deferred compensahon arrangements with ~ts Employees which meet the same Internal Revenue Code requirements which govern the ICMA-RC Deferred Compensahon Plan Such Trust Funds shall be sublect to all of the terms and provisions of this Agreement ARTICLE I1. Powers and Duties of the Trustee in Investment, Administration, and Disbursement of the Trust Funds. Secbon 2 1 Investment Powers and Oul~es of the Trustee. The Trustee shall have the power in ~ts discrehon to invest and reinvest the prmclpal and mcome of the Trusl Funds and keep the Trust Funds invested without d~stlnctlon between principal and income, in Such securJhes or ~n other broperty, real or personal, wherever Situated. as the Trustee shall deem adv,sable, mcludmg but not hmJled lo. $lOCkS. common or preferred, bonds retirement annudy and Insurance pOhCleS. mortgages, and olher ewqences of mdebtedness or ownersmp, and ~n common trust funds of approved hnanclal or Investmenl InStitutions, with SUCh InStitutions acting as Trustee of such common Irusl funds. Or separate and ddferent types Of funds laccounls) ~nCluCl~ng eou~ty. Jlxed- ;ncome and those wmcn lulfdl redulremenls of Sidle and local govern- mental laws. estabhshed wJlh Such approved financial or ~nvestment ~nslltuhons For these purposes, these Trust Funds may becommlngled wdh olhers established by Ihe Truslee under this Iorm of agreement Wllh other Employers In making such ~nvestmenls. the Truslee shall noI be SubleCl at any hmo tO any leg,il hm~latlon governing the Investmenl ot SUCh funds Investmenl powers and mveslment discretion vested in the Trustee by this Section may be delegated by the Trustee to any banK, insurance or trust company, or any investment advisor, manager or agent selected by it. Section 2.2. Administrative Powers of the Trustee. The Trustee shatl have the power in its discretion: (a) To purchase, or subscribe for, any securities or other property and tO retain the same in trust, (b) To sell, exchange, convey frans er or otherwise dispose of any securities or other property held by it. by private contract, or at public auction. No person dealing with the Trustee shall be bound to see the application of the purchase money or to inquire into the validity, expediency, or propriety of any such sale or other disposition. (C) TO vote upon any stocks, bonds, or other securities; to give general or special proxies or powers of attorney with or without power of substitution; to exercise any conversion privileges, subscription rights, or other options, and to make any payments incidental thereto; to oppose, or to consent to, or otherwise participate in. corporate reorganizations or other changes af- fecting corporate securities, and to delegate discretionary powers. end to pay any assessments or charges m connection therewith; and generally to exercise any of the powers of an owner with respect to stocks, bonds, securities or other property held as part of the Trust Funds. (d) To cause any securities or other property held as part of the Trust Funds to be registered in its own name, and to hold any investments in bearer form, but the books and records of the Trustee shall at alt times show t hat all such investments are a part of the Trust Funds. (e) To borrow or rinse money for the purpose of the Trust in such amount, and upon such terms and conditions, as the Trustee shall deem advisable; and, for any sum so borrowed, to issue its promissory note as Trustee. and to secure the repayment thereof by pledging all, or any part, of the Trust Funds. NO person lending money to the Trustee shall be bound to see the application of the money lent or to inquire into its validity, expediency or propriety of any such borrowing. (f) TO keep such portion of the Trust Funds in cash or cash balances as the Trustee, from time to time, may deem to be in the best interest of the Trust created hereby, without liability for interest thereon. (g) To accept and retain for such time asit may deem advisable any securities or other property received cr acquired by it as Trustee hereunder, whether or not such securities or other property would normally be purchased as ~nvestments hereunder. ih) TO make. execute, acknowledge, and deliver any and all documents of transfer and conveyance and any and alt other instruments that may be necessary or appropriate to carry out the powers here~n granted (0 To settle, compromise, or suPm~t to arbitration any clmms. debts, or damages due or owing to or from the Trusl Funds; to commence or defend su~ts or legal or administrative proceedings; and to represent the Trust Funds m alt su~ts ~.nd legal and admlmstratlve proceedings (i) To do all such acts, take all such proceedings, and exercise all such rights and pnw~eges, a~thougn not specd~cally mentioned herein, as the Trustee may deem necessary to admlmster the Trust Funds and to carry out the purposes pt th~s Trust. Sechon 2 3 D~stnbuhons from the Trust Funds, The Employer hereby appoints the Trustee as ~ts agent for purposes Ot se[echng the method by purposes of makmq such d~slrlbuhons In m,s regard the terms and cond~hons set forth ~n the A<~reements to be executed between me are to gu,de and control the Trustee's power. Section 2.4. Valuati(~n of Trust Funds. At least once a year as of Valuation Dates designated by the Trustee, the Trustee shall determine the value of the Trust Funds. Assets of the Trust Funds shall be valued et their market values at the close of business on the Valuation Date. or, in the absence of readily ascertainable market values as the Trustee shall determine, in accordance with methods consistently followed and uni- formly applied. ARTICLE III. For Protection of Tnastae. Section 3.1. Evidence of Action by Employer. The Trustee may rely upon any certificate, notice or direction purporting to have been signed on behalf of the Employer which the Trustee believes to have been signed by a duly designated official of the Employer. No communication shall be binding upon any of the Trust Funds or Trustee until they are received by the Trustee Section 3.2. Advice of Counsel. The Trustee may consult with any legal counsel with respect to the construction of this Agreement, its duties hereunder, or any act. which it proposes to take or omit, and shall not be liable for any action taken or omitted in good faith pursuant to such advice. Section 3 3. Miscellaneous. The Trustee shall use ordinary care and reasonable diligence, but shall not be liable for any mistake of judgment or other action taken in good faith. The Trustee shell not be liable for any loss sustained by the Trust Funds by reason of any investment made in good faith and in accordance with the provisions of this Agreement. The Trustee's duties and obligations shall be limited to those expressly imposed upon it by this Agreement. notwithstanding any reference of the Plan. ARTICLE IV, Taxes, Expenses and Compensation of Trustee. Section 4.1. Taxes. TheTrusteeshalldeductfromandchargeagainst the Trust Funds any taxes on the Trust Funds or the income Ihereof or which the Trustee ~s required to pay with respect to the interest of any person thereto. Section 4.2. Expenses. The Trustee shall deduct from and charge agmnst the Trust Funds all reasonable expenses ~ncurred by the Trustee in the administrat=on of the Trust Funds. including counsel, agency and other necessary fees. ARTICLE V. Settlement of Accounts. The Trustee shall keep ac- curate and detailed accounts of all investments, receipts, disbursements, and other transactions hereunder. Within ninety (90) days after the close of each fiscal year. the Trustee shall render in duphcate to the Employer an account of its acts and transactions as Trustee hereunder. It any part pt the Trust Fund shall be mvestect mrougn me medium of any common, collective or commingled Trust Funds. the last annual report of such Trust Funds shall be submitted with and incorporated in the account. tt within ninety (90) days after the mailing of the account or any amended account the Employer has not tiled w~th the Trustee notice of any objection to any act or transachon of the Trustee, the account or amended account shall become an account stated If any oblection has been filed, and d the Employer ~s sahsfied that ~t should be w~thdrawn or ~f the account is adiusted to the Employer's satisfaction, the Employer shall in wntmg hied w~th the Trustee s~gmty approval of the account and ~t shall become an account stated. When an account becomes an account stated, such account sha~l be finally settled, and the Trustee shall be completely d~scharged and released, as d such account had been settled and allowed by a judgment or decree of a court pt competent lunSq~Ct~On ~n an achon or proceeding m which the Trustee and the Employer were parhes The Trustee shall have the nght lo apply at any brae to a court of ARTICLE VI. Resignation and Removal of Trustee. time by filing with th" Employer its written resignation. Such resignation shall take effect sixty (60) days from the date of such tiling and upon appointment of a successor pursuant to Section 6.3.. whichever shall first occur. Section 6.2. Removal of Trustee. The Employer may remove the Trustee at any time by delivering to the Trustee a written notice of its remova~ and an apppointment of a successor pursuant to Section 6.3. Suc~ removal shall not take effect prior to sixty (60) days from such delivery unless the Trustee agrees to an earlier effective date. Section 6.3. Appointment of Successor Trustee. The apointment of a successor to the Trustee shall take effect upon the delivery to the Trustee of (a) an instrument in writing executed by the Employer appointing such successor, and exonerating such successor from liability for the acts and omissions of its predecessor, and (b) an acceptance in writing, executed by such successor. All of the provisions set forth herein with respect to the Trustee shall relate to each successor with the same force and effect as if such successor had been originally named as Trustee hereunder. If a successor is not appointed within sixty (60) days after the Trustee gives notice of its resignation pursuant to Section 6.1., the Trastee may apply to any court of competent jurisdiction for appointment of a successor. Section 6.4. Transfer of Funds to Successor. Upon the resignation or remover of the Trustee and appointment of a successor, and after the final account of the Trustee has been properly settled, the Trustee shall transfer and deliver any of the Trust Funds involved to such successor. ARTICLE VII. Duration and Revocation of Trust Agreement. Section 7.1. Duration and Revocation. This Trust shall continue for such time as may be necessary to accomplish the purpose for which it was created but may be terminated or revoked at any time by the Employer as; retates to any and/or all related participating Employees. Written notice of such termination or revocation shall be given to the Trustee by the Employer. Upon termination or revocation of this Trust, all of the assets thereof shall return to and revert to the Employer. Termination of this Trust shall not, however, relieve the Employe[ of the Employer's continuing obligation to pay deferred compensation upon the applicable distribution date to any and/or each Employee with whom the Employer has entered into s Deferred Compensation Employment Agreement. Section 7.2. Amendment. The Employer sha~l have the right to amend this Agreement in whole and in part but only with the Trustee's written consent. Any such amendment shall become effective upon (a) delivery to the Trustee of awritten instrument of amendment, and(b) the endorsement by the Trustee on such instrument of its consent thereto. ARTICLE VIII. Miscellaneous. Section 8.1. Laws of the State of Delaware to Govern. This Agreement and the Trust hereby created shall be construed and regulated by the laws of the State of Delaware, Section 6.2. Successor Employers. The term "Employer" shall include any person who succeeds the Employer and who adopts the Deferred Compensation Plan of the Retirement Corporation and becomes a party to this Agreement with the consent of the Trustee. Section 8.3. Withdrawals. The Employer may, at any time, and from time to time, withdraw a portion or all of the Trust Funds created by this Agreement and related Deferred Compensation Employment Agreements. Section 8.4. Definitions. Defimtions in the By-Laws of terms, phrases, etc., used hereto apply to the same herein. The masculine includes the feminine and the singular includes the plural unless the context requires another meaning. AMENDMENTS TO THE ICMA RETIF. EMENT CORPORATION DEFERRED COMPENSATION'PLAN June 1, 1981 1. The preliminary statement shall be amended to add the f~llowing: The Retirement Corporation will assume responsi- bility for a continuing program of compliance with Section 457 of the U.S. Internal Revenue Codel regulations of the Internal Revenue Service and federal tax law and may amend the Plan at any time for the purpose of maintaining such compliance. Amendments for this purpose may become effective immediately upon notice to participating Employers. However, the Retirement Corporation shall not be responsible for a~y rulings, administrative judg- ments, or other conclusions of the Internal Revenue Service, or other federal agencies, which are a result of requests, petitions, or other inquiries by the Em- ployer or an Employee without the participation of the Retirement Corporation. payable. Past accumulations in the various Funds may be transferred from one Fund to another in accordance with published admirzistrative pro- cedures of the Corporation. Elections to transfer from one Fund to another Fund must be made before the beginning of the calendar month in which the trans- fer is to be made. Such transfers will be made on the last day of the month. The amount to be trans- ferred will be the market va*ue or cash-in value of the account on said day. 3. Part II, Article VIII shall be amended to the add the following: 8.5 Audit. The Trustee will cause an annual audit of the Trust Funds to be conducted by independent certified public accountants and shall provide copies of said audit to each participant in the plan. 2. Part I, paragraph 5 shall be amended as follows: Designation of Investment Funds. Each participating Employer, being advised of the preferences of, and for the benefit of each of its participating Employees, shall designate the percentage of the deferred com- pensation involved which shall be invested in the respective types of investment funds of the Retire- merit Corporation, such as the Balanced Fund or the Bond Fund, unless the laws of the applicable state or local government require otherwise, in which case those laws shall govern. Future elections to change the percentage allocations to be invested in each type of Fund must be made before the beginning of the calendar month for which the compensation is 8.6 Confidentiality of Records: All employee records of the Plan shall be treated as confidentia! by the Trustee. Disclosure of information shall be limited to a properly designated official of the Employer, the participating Employee, or any representative of the State in which the Employer is located or of any agency of the U.S. Government who has a lawful right to inspection of all or a portion of the reco'rds. In the event the Employer appoints a consultant or other representative, for any reason, to inspect or review the records, such disclosure shall be through the Employer. The Trustee shall have no responsi- bility for any disclosures by such consultant or other representative. (~ APPENDIX B I MA ..RETIREMENT CORPORATION Area Code 202 1101 293-27t6 Connecticut Toll Free 800 Avenue 424-9249 Northwest Washington DC 20036 EMPLOYEE ENROLLMENT FORM You are requesting parbc~pation, which wifl be approved when both you and your Your enrollment m the ICMA Retirement Corporation IRC) deferred compensabon plan requires proper completion gl the attached Joinder Agreement The agreement is prepared ~n memorandum form. in the same calendar month in which it is completed. All deferred compensation agreements are for the future. employer Sign the agreement. No part of the agreement can become eflecti~aranteed interest Fund. On the other hand, you could request that GENERAL iNSTRUCTIONS 1. Three (3) cop~es of the agreement are necessary. The three agreements, attached, do not reqmre carbon paper but be sure to use a balFpomt pen or a typewriter. 2. In the uPPer laIr*hand c°rner °t the agreement check the b°x which describes the type ot agreement: a. Check the box for NEW AGREEMENT if you have not previously padictpated in the RC plan through your present employer b. Check the box for AMENDMENT OF PREVIOUS AGREEMENT ~f you are now Darhc~pat~ng m the RC plan. but desire to make a change (See 'lnstrucbons for Amendment' below ) . C. it you wish ,o change the beneficiary gl your account without changing your amount deferred or fund allocation, check the box for CHANGE OF BENEFICIARY only. Also. to assure pro- per ~dent~ficatlon, complete the section titled 'Essential Em- ployee Intormatton. :3. Provide all information requested on the agreement AMOUNT OF DEFERRED coMPENSATION El~,ective January 1, 1979. re¢lerat law plaCe~l a limitation on.the total amount a persOn may deier from federal income taxatlo~l- The limit is 25% o! total compensation or 57,500, whichever ts less. bi you participate in other tax sheltered plans the total amount deferred under all plans may not exceed tl~is amount. See -'General Provisions," paragraph 4, on the revers~ side of the agreement. 1. tn the boxes titled "Percentage Method' and "Dollar Method." defer ~nder the ~otumn labeled Emetoyee's Contnbubon. II your employer has agreed to corttnbute to your deterred compensat~cn pian enter that percentage of your salary or dollar amount under ..... · s Contr~bubon The ',~-'"g'""AGE METHOD ~:, recommenoeu "Y~ re:teases The DOLLAR METH©O hxes a specific cortmbut~on ALLOCA'r~ON TO iNVESTMENT FUNDS a certain percentage be invested in each of the four Funds. The only requirement ~s that any division between Funds be made tn whole percentages; ie.. 50%. 20%, 83%, etc. (Not 50.5%, 20.6%, or Some lunsd~ct*°ns are hmtted by stare or local laws as to the types of ~nvestmen',s whiCh may be made w~tl~ deterred compensation funds. You should check w~th your employer to see ~f you have any such restncttons. See"Selecting Investment Funds' on the following page for a descnp- tton of RCs ~nvestment Funds. NOTE: Any subsequent amendments to this agreement will not permit transfernng previOUSly invested money lrom one Fund to another. (However. changes ~n the allocation of ~nvestments can be made lot luture ~nvestmenls.) ESSENTIAL EMPLOYEE iNFORMATION Always compiete all ~tems tn this sechon DESIGNATICN OF BEHEFICIARY : See instruct~orls on the reverse side of this page FOR SuPpLEMENTAL pROVISIONS Th~s sect:on may be used or soec~al con$~deralions relating to tho agreement. Such constderabons include a one-time lump.sum payment, transfers from other plans, etc. The Rehrement Corporahon Should be consulted ~n the completing of ~nese agreements. SIGNATURES Sion and (]ate the a@reemeet, making sure the impression shows th~'ougn on all three cop~es. Submit the three cop~e$ of the Jomder Agreement to your employer for s~gnature Your employer w~tt return orte CODy iD you. retain one cody, and mall the lhtrd COpy Io the Retlremont Corporahon. iNSTRUCTIONS FOR AME~'tOMENTS 1 The agreement may be amended by comptehng only Ihnso secbons m which you desire to make a cnanqe complete ;ne Essenh,tl Employee inlormat~on section on ,.:'graders.) Follow the mstruchons lot lhe completion gl ments apply to the tuture. Your employer may have a policy on new 3 shed by subm,lhnq an amended agree ~me.m. Tho Primary Beneficiary tClass I) receives the benefits to be pa,d when the participant c es. if no Primary Beneficiary (Ciasa I) is livinq the benefits gc to the Contingent Beneliciarv (C'.ass Il) If a Class includes more than on9 ourson, tr;o :)roceeos ara divided OQUalW among me desi§nat~on shown ~n exampte 1 below w~ll best carry out his w,shes. You i~ave the right to change your beneficiary at any time unless you have named a beneficiary "irrevocably." It is wise to review your and send you the form that will most closely fit your needs. ene/iciary £esigr, a ions Usual family situation -wife Primary Beneficiary and children Contingent Beneflcianes Jna,"nes ofguar(~/ans snouldnot bestated): Date of Birth Relationsmo Primary Benefic~aryhes) IClass I): Mo Day Yr. re you Contingent Beneficiary~es~ (Class III. if any: '~ Thu term 'My Children" prov~oes eouai treatment among your children-- =resent and future-- born of an,~ and all mar,laces, one :nv children e¢]311v ;iQOD:OQ at 3[1v :,me. The aevan~a~e of using tins designa:~on r3t~er [r~an naming each Child specifically that a future cm~d will automa~ca,iv be included m any sharinq m me uenefits w~tn ot~er livin9 ~h~ldren. if this designation ~ppropnate for leu. oescrlce (ne destgnat~on You w~sh fully m ;ne acD~[oat~on--e.g., the chddren born of my mamage Ma~ha A. Doe. 2. One person a primary beneficiary: 04' ."., ¢ 2. Two equal primary beneficiaries: Primary Benefic~arvfies) (Class I1: 4. One Drimary beneficiary and two contingent beneficiaries: Primary Bene*iciaryhesl IClass I1: SELECTING iNVESTMENT FUNDS Neither the Retirement Corporation nor your emplo/er offer you ~nvestment adwce Tho following ~s a guneral description of each FtJfld and what you m~ght expect according to convenbonal ~nvestmeot wisdom. A cornplete statement of the mvestmenl pohcy and obleclives lot each Fund are conta,ned ~n the Annual Report of the Rel~remont Corporation All investment policy statements are sub!eot to periodic rews~on, based on tr, e investment climate and the Board of Directors strategy tot accomplishing ~ts object~ves. Also. the past pertorrn&nce of the Fund ~s recorded ~n Ibc Rebroment Corporation s Annual Report THE BALANCED FUND 1 The BALANCED FUND m designed to altow you~ part~c~pat on ~n the overall economy of the Untied States Its elnpr~as~s ~s on common stocks bul that empnas~s is balanced against currenl market conditions to protect your account against severe iosses In this Fund you should expect s~gnlhcant fluctuations ~n earnings on a year-to-year bas~s In any single year a loss may be experienced The strategy ~s lor the long-term Over two-to-three market cycles. you should come out ahead of the otner Funds. THEBONDFUND 2 The BOND FUND ~s designed to take advantage of the significant earnings whmh can be made by investing m h~gh quality corporate bonds. Offering less risk than the Balanced Fund. you should expect steady gains over one or two market cycles Year-to-year fluctuations ~o earmngs w~ll also occur ~n lh~s Fund but any less ct pnnc~paf ~s carefully guarded against. THE GOVERNMENT SECURITIES FUND 3 The GOVERNMENT SECURITIES FUND ~s ~nvested only ~n securities of, and those guaranteed by. Ihe US Government. When compared Io the Balanced and the Bond Funds. it offers even less rtsk of pnnc~pal. Over the long-term ~ts returns are [~kely to be slightly lower. Year-lo-year fluctuations ~n earnings are to be expected. Th~ Government Securities Fund allows par~c~pahon by empioyees who work for governments that restrict Ihe amounts that can be invested ~n commercial securer;es THE GUARANTEED INTEREST FUND 4. The GUARANTEED INTEREST FUND ~s fha most recent addmon to the RC ~nveslmenl options I; offers guaranteed interest for those who choose not to accommodate themselves to fluctuations ~e annual earmngs. Th~s Fund ~ncludes guaranteed investment contracts and guaranlees a specd~c rate of return The current guaranteed annual rate m quoted ~n the brochures and other hferature Of the Rettremem Corporation. The annual management fee charged on th~s Fund does not reduce the guaranlee, fh~s ~nterest rate w~li cr~ange periodically However. year-lo-year fluctual~ons are m~n~m~zed Over Ihe long-term, pad~opanls should . not necessarily expect a h~gher return Ihan the other Funds wdl produce In summarizing each Fund. we have pointed out that all investments have 8 degree of risk Convenl~onal w~sdom assumes thai the greater the r~sk. the greater the poss~bdJty for a h~gher long-term relurn On the other hand. all ct RCs Funds are lot rel~remenl planning and represent conservallVe ~nveslmenl polices wher'~ compared to Ihe comp.lele range el poss~bd~bos [] MS. Full Name C~'~e' ~ Print Name of Employer '~ [] Mrs. [] Miss First Middle Last ~UNT OF DEFERRED COMPENSATION .~E: Effective January 1, 1979, federal law prohibits any person from lng more than 25% of total compensation or $7,500, whichever is Total compensation is your salary, including any amounts deferred. payday shown below, I desire to be paid, in the form of compensation, as follows: [] 1Od Of Oes~lnating (Employee's (Employ~-*$ Contribution) Contribution) Total Use Only One) reduced by added to by oltar Method $ $ , on which plan is to begin Mo. Day Yr. ~ is $ per pay period. f (2 weeks, month, 15 days, etc.): ALLOCATION TO INVESTMENT FUNDS I request that the total amounts of deferred compensation be applied to the available investment funds in the following percentages (See ICMA-RC An- nual Report for discussion of funds): - Balanced Fund I understand that where state or local law restricts the nature of the invest- ment of these funds that it will be necessary to restnct the investment choice to those available under the law. NTIAL EMPLOYEE INFORMATION [] M [] F Date of Birth Mo. Title Day Yr. No. Street city Department State Zip ~TION OF BENEFICIARY (See Instructions) When amending your agreement do not complete this section unless you wish to change beneficiaries. proceeds be payable in case of your death? Give first name, middle initial, and last name: Mary A. ith (not Mrs. John Smith). For your children, you may simply use the term "My Children" and leave the Date of and Relationship columns blank. This term will provide equal treatment among your children--present and f and all marriages and any children legally adopted at any time. , Beneficiary(les) (Class I): : Beneficiary(les) (Class II), if any: e right to change beneficiaries is reserved to me. If no Primary Beneficiary (Class I) is living at time of your death, the proceeds are payable to the Contingent Beneficiary(les) (Class II). If a Class includes more than one person, the proceeds are divided equally among the living beneficiaries of the Class. Date of Birth Mo. Day Year Relationship to you, i.e., wife, son, daughter. (If none, state whether friend, creditor, etc,) )R SUPPLEMENTAL PROVISIONS The undersigned hereby applies for participation in the'lCMA Retirement Corporation deferred compensation plan as established by my employer. understand my participation is subject to my employer's agreement, given below, and will be governed by the plan document, its amendments, and this agreement, including the general provisions appearing on the reverse side. I have read paragraph 4 on the reverse side of this agreement, and c~rtify that the amount I have said I want to defer does not exceed 25% of my toial compensation or $7,500, whichever is lower. mployee Signature Employer Approval and Agreement Oat= cannot sign your own Joinder Agreement for employer approval. If you Iso act as your employer's authorized official, have another employee au- sign your agreement. Signature of Authorized Official Print Name and Title of Official , (over)