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HomeMy WebLinkAboutRESO 6307ORIGIF\IAL RESOLUTION NO. 6~07 RESOLUTION OF THE COUNCIL OF TH CITY.OF PALO ALTO AMENDING DEFERRED COMPENSTION PLAN ADMINISTERED BY ICMA WHEREAS, the City of Palo Alto (•Emplo1er•) maintains a deferred compensation plan which is administered by the ICMA Retirement Corpora- tion (the •Administrator•) and which is presently available only to the City Manager, City Attorney, and Director of Utilities: and WHEREAS, the Administrator has recommended changes in the plan document to comply with recent federal logislati~n and Internal Revenue Service Regulations governing said plans1 and WHEREAS, the Internal Revenue Service has issued a private letter ruling approving said plan document as complying with Section 457 of the Internal Revenue Code; and WHEREAS, other public employers have joined toqether to establish the ICMA Retirement Trust for the purpose of representing the interests of the participating employers with respect to the collective invest- ment of funds held under their deferred compensation plans: and WHEREAS, said Trust is a salutary development which further ad- vances the quality of administration for plans adainistered by the ICMA Retirement Corporation: NOW, THEREFORE, the Council of the City of Palo Alto does RESOLVE as follows: SECTION 1. That the Employer hereby adopts the deferred compensa- tion plan, attached hereto as Appendix A as an amendment and restate- ment of its present deferred co•pensation plan administered by the ICMA Retirement Corporation, which shall continue to act as Adminictrator of said plan. sgcTION 2. That the Employer hereby execut~s the ICMA Retire•ent Trust, attac6ed hereto as Appendix B. SECTION 3. '!'bat the Employer hereby adopts the trust agreement with the ICMA Retirement Corporation, as appears at Appen~ix C hereto, as an amendment and restate11ent of itt. existing trust agreeaent with the ICMA Retire.ent Corporation, and directs the ICMA Retire•ent Cor- poration, as Trustee, to invest all funds held under the deferred com- pensation plan through the ICMA Retirement Trust as soon as is practi- cable. SECTION 4. That the City Manager shall be the coordinator of this program and shall receive necessary reports, not ices, etc. from the ICMA Retirement Corporation as Administrator, and sh&ll cast, on behalf of the Employer, any required votes under the program. Administrative duties to carry out the plan may be assigned to the appropriate depart- ments. INTRODUCED AND PASSED: September 11' 1984 AYES: Bechtel, Cobb, Fletcher, Klein, levy, Renzel, Sutorius, Witherspoon, Woolley NOES: None ABSTENTIONS: None ABSENT: None APPROVE AS TO PORH: ctYAtfOiDey ~,di,. ~II Fi.~ • .ance 1-~--~-~--~- any such plan or aystem. Nothing cont1ii1e<1 in this Plan shall be dt>emed to constitute an employment contract or agreement between any Participant and the Employer or to give any Participant !l\e right to be retained in the employ of the Employer. Nor shall anything herein be construed 10 modify the terms o! any employment contract or agreement between 1 Participant and the Employer. lt AMENDMENT OR TERMINATION OF PLAN The Employer may at any hme amend this Plan provided that 1t transmits such amendment in writing to the Adminis~rator at least 30 days prior to the e!tecti11e date ot the amendment. The con~ent of the Administrator shall not be required in order for such amendment to beeome effective, but the Administrator shafl be under no obligation to continue &(;ting as Ar.lministrator hereunder if it disapproves of such amendment. The Employer may at any time terminate this Plan. The Administrator may at any time propose an amendment to the Plan by an instrument in writing transmitted to the Employer at least 30 days before the effective date of the amendment. Such amendmen: shall become effective unless. within such 30-day ' .. period, the Employer notlfin the Admtnt9trator in wrtling tnat It disapproves such amendmillnt. in wlllen cue such amendment shall not become ettective. In the ever.I of sucl'I dlMpproval. the Administrator Sha.JI be undor no obligation to continue Kting as Administrator hereunder. No amtl'ndment or termination of the Plan Shall divest any Participant of any rights with respect to compenutlon deferred before the date of tl'IQ amendment or tr.minauon XI. APPLICABLE LAW This Plan shall be com1trued under the l.-ws of the state where the Employer is loelited anci is nlabliStM!d with the intent that it meet the requirements of an ~llflglb~ State deferred compenution plan" under section 457 of the lnternlll Revenue Code of 1954, as amended. The provisions of this Plan shall be interpreted wherever possible in conformity wtth !he fequirements oi tnat section. XII. GENDER AHO NUllSEA The masculine pron-oun. whenever useo herein. shall include the feminine pronoun. and the singular shall include the plural. except where the context requires otherwise. .: __________________ -----·--·-_______________ .. --·-------·------1----______________ ., ___ ----· APPE~_D_IX_~ CITY OF PALO ALTO ("EMPLOYER") DEFERRED COMPENSATION PLAN I. INTRODUCTION The Employer hereby establishes the EmployeJ's Deferred Compensation Plan, hereinafter referred to as the "Plan." The Plan consists of the provisions set forth in this docurrent. The primary purpose of this Plan is to provider~irement income and other deferred benefits to the Employees of the Employer in accordance with thL provisions of section '*57 of the Internal Revenue Code of 1954, :os amerided. This Plan shall be a11 ag1eement solely between the Employer and pe.rticipll!ing Employees. II. DEFINITIOHS 2.01 Accouflt The boollkellping account ma, ntained for each Participant reflecting the cumuletl\19 amount ol the Participant'• Deterred eomp..aation, indudlng any income. gains, loeMI. Of Ina .... or deer-.. in market value attributable to the Employer'• irYeStment of the Participant's Deferred ~Ion, and further reflecting any distribu- tiOna to the Participant or the Participant's Beneficiary and an~ feet or expenses cherged again8t sucn Participant's Deferred Compensation. 2.02 AdmJnl9lraklr. The person or persons named to carry out certain nondiscretionary administrative fu1lctions under the Plan. as hereinafter described. The Employer may remove any person as Admin!strator upon 60 days advance notice in writing to such person, in which case the Employer shall name another person Of'~ to act as Administrator. The Adminiatrator may resign upon 60 days ldwance notice in writing to the Employer, in which the case the Employer shall name another parson or per800• to act as Administr6tor. 2,.G:j ~: The pet'S()n or ~ designated by the Particip.ril in his Joinder Awecment who snail receive any benefilt peyabie hereunder in the event of the Participant's death. 2.CM °"""'"~The #MIUnt of Normal Compensa- tion otharwile payable to the ParticipllWlt which the Participant 11nd the Employer rni..~ually agree to defer hereunder. any 111Tiount eredited to a PartlciS)lW't's Aecoilnt bV reason of • transfer under Section 6.03. Ot aey other amount which the Employer agrees to credit to a P'al'ticipant'11 .Account. 2.05 Enlplof-.: Any individual who provides se1'11~ fOf the Empioyer. whether as an 9mployee of the Employer or as an indeper>dent contractor. end who ha been delignated by ti-., Employer aa eligible to participate in the Plan. 2'06 lnduclbttl C~ The llmOUnt of an Employee's compensation from the Em~• fOt' 11 taxat..:it year that is sttributable to sefVi<:e9 performed for the Employer and that is 1~bf4t in thl Employee'• gron Income for the taxable year for**"' inc:Ome tax~ audt term doel not 1 include any amount excludablefrom gross income underthia Plan or any other plan described in section 457(b) of the Internal Revenue COde, any amount excludable from 9rou income under section 403(b) of the Internal Revenue Code, or atlY other amount excludable from gross income lor federal income tax r>lJrposes. lncludible Compensation shail be determined without regard to any community property laws. 2.07 Jotncler Agteement: An agreement entered into between an Employee and the Employer. including any amendments or modification:; thereof. Such agreement shall fix the amount cf Deferred Compensation, specify a preferMce among the investment al!ematives designated by the Emplo~r. deslgt1ate the Einployee·s Beneficiary or Beneficiaries, and incorporate the terms. conditions, and provisions of the P1an by reference. Z.OI Namm Compenution: The amount of compensation which would be payable to a Par!icipant by the Employer for a taxable year if no Joinder Agreement were in effect to defer compensation under this Plan. 2.09 HonMI RetiNment Age: Age 70. unless the Participant nas elected an alternate Normal Retirement Age by written ir.strument delivered to the Administrator prior to Separation from Sen1ice. A Participant's Normal Retirement Age detemiines (a) the latest time when benefits may commence under this Plan (unless th:.! Participant cxmtinues employ- ment after Normal Retirement Age), and ( b) the periOd during which a Participant may utilize the catch-up limitation of Sec:tlon 5.02 hereunder. Once a Participant has to any extent utilized the catch-up limitation of Section 5.02, his N0tmal Retirement Age may not be changed. A Participant's alternate Normal Retirement Age may not be earlier than the earliest date that the Participant will becon'le eligible to retire and receive unreduced retirement benefits under the Employer's baSic r!lt:rement plan covering the Pllrticipant ltld may not be late~ than the date the Participant attains age 70. If a Participant continws employment after attaining age 70, not h8"ing previously elflcted an alternate Normal Retirement Age, Uie Participant's alternate Nonna! Retirement Age shall not be later Ulan the man<Sa•ory retirement age, if any, established by t"e Employer. or the age at which the Participant actually Mparatea from MHVice if the Empjuye.-ha8 no mandatory retirement age. If the Participant will nol beCOme eligible to rec:efv.e be~'·• under a balic retirement plan maintained by the Empl"'Ver, 1he Participant's alternate Nonnal Retirement Age ma· out be earlier than attainment of age 55 and may not be later lo' "n attainment of age 70. 2.10 P81UdfNnt: , · ;y Employee who nas joined the Plan pursuant to the requiren-.ant• <>f Article IV. 2.11 Plan Ye.-: The calendar year. -2. 12-~w-=~ ~e~ir:,-:ate upon ~~1-:h or~~ fo~~i~~ shall have occurred with r•pect to • Participant: Separation lrom Servte• and attainment of Normal Retirement Age. 2.13 leperllon trom s.rvtee: Severance of the Pllrticipant's employ~! witl'i the Employer. A Partl<:lpant shall be deemed to haVe severed his employment wit!'\ the Employef for purposes of this Plan when, in accordan~, with the established ptect1G'1! of tl'!e Emplo~er, the employment relationship is COl\$ider1Jd to havs actually terminated. In the case of a Partic•pant who Is an independenl contractor of the Employer, Separation from Service shalt be deemed to hav1. occurred when the Participant's contract under whl.ch Jer>'ic:es &re pef1ormed hn completvly expired 111ncl terminated. there is no foreseeable possibility that the Employer will renew the contract or enter into a new contract for r~ Participant's services. and it is not anticipated that !he Participant will become an Employee ol the Employer. Ill. ADMINISTRATION 3.01 Duties of Employer: The Employer shall have the authority to make all discretiooary decisions affecting the rights or benefits or Participants which may be required in the administration of this Plan. 3.02 Dutlea of AdlnWstrator: The Administrator. as agent for the EmployN, shall perlorm nondiscretionary administrative functions in connection with the Plan. including the maintenance of Participants' Accounts. the provision of periodic reports of the status !)f each ACCO' .. .mt and the disbul'Htmlnl of benefits on behalf of the F..mploysr in accordance with the provisions of this Plan. IV. PARTICtPATION IN TH£ PLAN 4.01 lnltllll Paftidplltlon: An Employee may beeome a Participant by entering ir:to a Joinder Agreement prior to the beginning of the calendar month in which the Joindef Agreement is b beCOrrie effective to defer compenMtion not yet eerned. 4.02 AIMndmml of Jalndllr ~t: A Participant may amend an pecuted Joindet Agreemen' to change the amount of compensation not yet earned whicl'I is to be deferred (including the reduction of such future dekirrals to zero) or to change hiS investment preference (subject to suCh restric- tions as may result from the nature or tenns of any investment made by the Employer). Such amen<trMnt shall become effective as of the beginning of the calendar month commencing after the date the amendment is executed. A Participant may at any time amend his Joinder Agreement to cllange the design••-,d Beneficiary and such amendment shall become effectm immediately. V. LIMITATIONS ON Dff!RRALI 5.01 NonMI Umlt8lloft: Except as provided in Section 5.02, the maximum al'l'!Otlnt or Oefemtd Com~tion for any Participant for any taxable year shall not exceed the lesser ol $7,500.00 or 33 1/3 percent of the Partleipenrs ln<:ludible Compensation for the •abl9 year. Thia limitation will ordinarily be equiva$811t to the lnHf of $7,500.00 or 25 percent of the ParticiJ*lt's Normal Compensation. S.02 c.&eh-up Ulnffl'lllol'I: For each ot the last three (3) taxable yf.18rs or a Participant enctinsi before ms attainment of Normal Retir.ment Age. the maximum amounc of Deferred Compensation st.all be the lnMt" of: (1J $15,000 or (2) the sum of (i) the Normal Limitation for the Wable year, ancl (ii) that portion of the Normal Limitation for each of the prior t4xabte years of the ParticiPMt commencing aft., 1978 during whicil the Plan WllS in ui.stenc:e and u,. Partk:ipant was ali~ible to participate in the Plan (or in any other ~" ntab!i&hed under eection 457 of the lrtetna.1 Revenue COde by an employ., within the same State • tM Emptoy•) leSa the amount of Deferred Compenaation for each such prior taxable y.ar (including arnounta delern.ct under wch oihef a plan}. For·=-:~ this ~tion 5.02~: Participant's lncludible Compenution for the current taxable year shall be deemed to include any Deferred Compensalion for the taxable year in excess or the amount permitted under tho Normal Limitation, and the Particlpanr1 lnch.ldible Compen· ulion for any prior taxable y•r •hall be deemed to exclude any amount that could have been deferred under the N0tma! Limitation tor such prior taxable year. 5.03 S.Cllon 403(b) Annutttee: For purposes of Sections 5.01 8fld 5.02, amounts :ontri~ed by the EmployM on behalf ol • Participant for the purchase o• an annuity contract described in section 4C3(b) of tl'le Internal Revenue Code shall bia trea.t9d u if such amounts constituted Deterred Compensa- tion under this Plan for the ta11abht year in which the contri:::.ution was made and Shall thereby reduce the maxim um amount that may be deferred fonucn taxable year. VI. INVUTllENTI AND ACCOUNT VALUU 8.01 ..,....talilnt ol DetarNd Ca•panMllon: All Investments of Pltrticip.,ts' D~red ~n made by tne Employer, includtng all p~ and rights purcnased with such arncx.ints and all income attribUtable thereto. shall be the sole property of the Emptoy81" and shall not be held in trust for Participants or u colla1erat security foe the fulfillment of the Employer's obligations under the Plan. Such property shall be subject to the claims of general creditors of tne Employer, and no Participant or Beneficiaty shall have any t<ested int&res.t or secured or pre~erred position with respect to such property or l'oave any claim against the Employet" elCcept as a general creditor. e.02 CMdlltftl of A1Xlo""'8: Tt .a P9C'tictpant's Aci:Qunt $ha!I reflect the amount and value of the invatmenta °'other property obtained by the Employer through the investmenl of tl'le Particlpanrs Deferred Compensation. It Is anttcipated tl"8t the Employer's investments with r-.pect to a Patticlpant will confonn to the lnYaetment pnference tpecified in the Participant'• Jolnder Agreement, byt nothing herein shall be conatrued to require the Employer to make any particular invmtment of a Participant's Deferre·. '.::ompensatlon. Each Participa1t shall recei\Olil pertodic reports, not leU frequently than annually, showing the then-current va'..ue of his Account. 8.03 Acc:eptanw of T.-.na1iMs: Puf'5Uant to an appropriate written agreement, the Employer may ace ;ip~ and credit to a Partieipant's Aceount amounts transfetred from another empl<>yr. within the Nm4l State represanting amounts held by such other employer under an eligible State deferred compensation plan described in ~lion 457 of the Internal Revenue Code. Any such trensier: Jd amount shell not be treated as a deferral subject to the limitations of Miele v. provided however. that the actual amount of any deferral under the plan from which ll'le tr10sfer is made 3hall be taken into accvunt in computing the catch-up limitation under Section 5.02. I.CM ~-u.t:ilNtr: In no event shal I the Empk)yer"s liability to pay benefit• to • Plllticipn undef' Artide vt exceed the value of the amounts credited to lhe Partieipanrs Accoont; the Emp!Oyer lh&ll not be liable for losses arising from dePf'etialion or shrinkage in the value ol any investments acquired undf}l this Plan. YU. BENEFITS 7.01 ~t hftetHI atd l'lechon on S.1*.eion kom &entce: Excepl as otherwise provided in this Arti<;le 1111, the distribution cf a Participanra Account 91*1 commence during the sec:ond calendar n'IOf'tl'l aftac' the c:toM of the Plan Year or the Participant"• Retirement, and the dlatribution of such Retirement benefits shall be made in accordance with one of the payment optionf described in Section 7.l"l2. Notwitt~tanding the tot'egolng. the Panlcipant may ifrevo- . . --·----.-.--·-------.------· ~bly elect within 60 days following Siparahon ftom S.-rvice to have me distribution of b!tnefits commenett on a dat6 other than that described in tt·.e preceding aentenoe wtuch 1s at leut 60 d.ays after the date such &lectiOn is delivered m writing to the Employer and forwarded to the Adrnir.istrator but not later than &o days after the close of the Plan Year of the Participant's Retirement. 7.02 Pllym9nt0petone:Asprovjdedin Seclions 7.01, 7.05and 7.06, a Panici?ant may e1001 to nave tl'le 11alve of his Account di&tributed in accord.Ince with one of the followin11 payment aptions, provided that such option is consistent with the limitations set forih in Section 7.03: (a) Equal monthly, quarterly, semi-annual or annual payments in an amount chosen by the Participant, continuin9 until his Account is exhausted; (b} One lump sum payment; (c) Approximately equal monthly, quarterly, semi-annual or annual payments. calculated to continue for a period certain chosen by lhe Participant; (d) Payr:ients equal to payments made by the issuer of a retirement annuity policy acquired by tl'le Employer; (el Any other paymE!f'lt option elected by the Part1eipant .md agreed to by the Employer. A PerticipMt's eleetion of a payment c.ption must be made at least 30 days before the payment of benefits is to commence. If a Participant fails to make a timely election of a payment opti..:>11, benefits shall be p~d monthly under option (Clab,:>Y~ for a period of five years. 7.03 l.JlnHatlon on Opffofts: No payment option may be selected by the Participant under Section 7. 02 unless the present valve of th6 payments to the Participa11t, determined as of the date beoefi~ commence, e•oaeds 50 percent ol the value of the Participtlllt's Account as of the date benefits commence. Present value detenninations under ~ ...... Section shell be made by the Administrator in llCCOl'dance with the expected return multiples set torth in Mll;tion 1.72-9 of the Federal Income Tax Regulations {or any successor provi!lion to such regutations}. 7.04 ~I o.ath e.n.nts: Should the Participant die after he has begUn to receive beniefits under a payment option. the rem..ining payments, if any, under the payment oprion shall be payable to the Participant's Beneficiary commencing within 60 day$ after tne AdministratQr receives f)foof cf the Par1icipant's death, un'"5 the Beneficiary elecis payment under a diffenmt payment option at least 30 days prior to ttie date that the first payment becomes payable to the Beneficiary. In no event shall the Employer or Administrator be liat»e to the Beneficiary for the amount of any pllynieflt made in tne name ol the Participant before the Administrator receives proof of death of the Participant. Notwith<ltrlding the foregoing, payments lo a Beneficiary shali nor extend Ovef' a period IOngerthan (i) the Berieficiary·s life e;i,:pectancy if tile Beneticiary is the PartieipMfs spause or (ii) !ifieen (15) Yft" if tJ'le BeneiM:iary i$ not the Participant's $pO(ise. It no Peneficiary ia ~natea in the Joinder Agreement. or if the deaignaled Beneficiary ooes not survive the Participant for a period of fifteen (15) days, thoo the commuted value ol any remaining payments under the paymer>t Qption shall be paid in a lump sum to the estate of the Participant. if the designated Beneficiary survives the Participant tor a period of fifteen (15) days. but does not continue to li11e for the remaining period of payments under the payment option (as modified, ii necessary, in conformity with the third sentence of this section). lf'len the commut'!ld value of 111y remaining payments undef the payment optk.in shall be paid in a lump sum to the eetate of the Benefic>ary. 7.05 ,,...,..., .... Deelh .....,...: Should the Panicipant die befOl8 he hu begun lo raceiv• the benefita provided by 3 ----~ct~ons 717 00, a duth ben~it-eqwl tot=~~~ o~:~ Part1c1pant's Account snail be payable to t.~ &tnefic1ary commencing na tater !hain 60 days aft• the ctoso of the Plan Year in which ll'le Participant would havo attamed Normal Retirement Age. Such death benefit shatl be paid in a lump sum unless th41 Beneficiary ttlecta a different payment option within 90 days of tl'le Participant's death. A Benellciairy who may e19<:t e p!t)'ment option pursuant to the provlsiori• of the preceding s.entence shall be treeted as if he were a Participant for purpose& o: determining the payment options available under Section 7.02; provided, however. that the ~ment opticn cnooen by the Ber1eficiary rriust provide for payments to the Beneficiary over a period no longM than the life expectancy of the Beneficiary if the Beneficiary ii the Participant's spouse and must provide for payment$ over a period not in excess of fifteen ( 15) years if the Beneficiary is not the Participant's spouse. 7.0I Dlsabllty: In the event a Participant becomes disabled before the commencement of RelirEment benefits under Section 7.01. the Participant may elect to commence benefits under one of tne payment options descnhed in Sectic<:: 7.02 on the last day of the month fol!owing a determinatior-. -:.: disability by the Employer. The Participant's request for such determination must be .nade within a reasonab~ tirne aft., the impairment which constitutes the disability occurs. A Participant shall be considered di$abled tor pu<POses of this Plan ii he is unable to engage in any subSlantial gainful activity by reason cl any medically determinable physical or mental impairment which can be expected to result in Oe8th or be of lor'9-<:0ntinued and indefinite duration. The disability ct. any Participant shall be determined in accordance with uniform principles consistently applied and upon the t::asis of such medical evidence 11s the Employer daems nooess.ry and desirable. 7.07 Unfor-llble Emergencln: In the event an untoresE>eable emergency occurs. a Participant may apply to the F.mployer to receive that part of the value of his account that is reasonably needed to satisfy tile P.mergency need. If ~uch an application is appru.ted by the Employer, the Participant shall be pai"1 only such amount as the Employer deems necessary to meet the emergency need, but payment shall not be m&W lo the extent that the financial hardship may oo relieved through cessation of deferral under the Plan, insurance or other re4mbursement. or liquidation of other assets to the extent such liquidation would not itselfcauses~efinancial hardship. An unforeseeable emerger.cy Shall be deemed to involve only circumstances ol severe finar.cia! hardship to the Participant resulting from a sudden and unexpected illness or accident of the Participant or of a dependent (as defined in section 152(a) of the Internal Revenue Code) of the Participant. loss of the Participant's property due to casualty, or other similar and edraordirary ur.roreseeable circum- stances arising BS a result ot events ~yond thecontroloftt:e Participant. The need to send a Participant's child to college or to purchase a new home shall not be considered unforeseeable emergencies. The determina1i·":"l :as to wne1her s•Jctl an unforeseeable emergency exists shall be based on the merits of each individual case. VIII. NON-ASSIGNABILITY No Participant or Beneficiary shall have any right to commute, sell, assign, pledge. transfer or otherwise convey or encumber tile right to receive any payments hereunder, which ~ayments and rights are expres;".ly declared to 01' n~n-assigoable and non- transferabis. IX. AE1ATIONSHIP TO OTHER PLANS ANO EMPLO't'llEHT AGREEMENTS This Plan serves in addition to any other retirement. pension. or benefit plan or system presently in existeflc:e or hereinafter established for the ben1;1fit of the Employer's employees. and participation hereuJider shat! not affect benefits recei11aole un~r .. ,·. · ....... AMENDMENT TO THE DECLARATION OF TRUST (APPENDIX B) Approved by ICMA Retirement Trust members, November 30, 1983 ARTICLE VIII. Miscellaneous SECTION 8.3. Notwtthstanding any other provision of this Dedaration of Trust, until December 31, 1984, unless such period is ext~ec.i by the Trustees. the Trust Property may include arnounts hefd by the Retirement Trust on behalf of public employers that have not ex ... ~uted the Dedaration of Trust. .. DECLARATION OF TRUST of ICMA RETIREMENT TRUST ARTtClE I. ,_.,,e llnd Oetlnmonl SECTION 1.1. Name. The Name of Che Trust created hereby is Che ICMA F\elirement Trust. SECTION 1.2. Definitions. Whet"tw&f they are used herein, the lonowing terms srn.11 have the following respe<:tive meanings: (a) By-laws. ThA. By-Laws referred to in Section 4.1 hereof, as amended from time to time. (b) Deferred Compensation ?Ian. A <referred compensation plan established and maintained by 8 Pubiic Employer for the purpose of providing ret1r~1 income and other de!errect benefits to its employees in ~rdance ~ith the provisions of ~tion 457 ot ltie Internal Revenue Cade ot 1954, as !lmended. (c) Guaranteed Investment Contract. A contract enterect into by the Re~it8fr.ent Trust with insur.iflce companies that pro11id6s for a gvaranteed rate of rfllum on investments made pursoant to such ~ntr3ct. {d) ICMA. The International ~ty Management Association. tel ICMA/RC Trustees. Those T~ees elected by me Public Employers wtio, in accotdanee with the proviSiOns of Section 3. i(a) hereof, are atso members ol the Board of Directors of ICMA or RC. (fl Investment AdviS<.."'I'. ilie Investment Adviser that entera into a contract wttl'I the Retiuwnent Trust to provide advice with respect to investment of the Trusl Praperty. (QI) Employer Trust. A lrus1 created pulSU#lt to an agreement between RC and • Public Employer for the purpose of investing and adminilterif1g tha funda set aside by such employer in connection with its deterred compensation agreements with its etnpoyllff. (h) Portfotios. The Portfolios of in\19Btmenta established by the lnveatrnent Adv!Mlf ~o the Retirement Trust. under the supervision of the Trustees. for the purpose of providing investmeota for the Trust Property. (i) Pubkc: Employee Tnmees. Those Trustees elected by the Public Employers who, in accordance wittl the provisiOf?S of Section 3.1{a) hereof. are full-time employees of Public Employers. (j) PutMic Employer. A unit of state er k><:al government, or any agency or instrutn«ltelity thereof. that Nls adopted a Deferred Compensation Plan &lld has e•ecuied thi$ 08"'..laratiotl of Trust. (ii) RC. The International City Management A'550Ciation Retiteme11t COfl)Ofation. (II Retirement Trust. The Trust created by this Oeela:ation of Trust. (m) Trust Property. The amour.ta hetd in the Reti«!mr.tt Trust on behalf of the Public Employers. The Trust Property shall include any income resulting from the it!Y8&tment of the amounts so hetd. (n) Trustees. The Public Empklyee Trustee$ and tCMA/AC Trustees eleeted by tt·.e Public Etnplcyers to serve u members of the Board of TfU9teea o1 the Retirement Trutllt. AATICl.E II. Creation .nd PurpoM or ttw Truat; Ownership of Ttult Property SECTION 2.1. Creation. The Retirement Trust is created al"ld established by tha execution of this Oeelaralion of Trust by the Trustees and the participating Public Employers. SECTION 2.2. Purpose. The purpose of the Retirement Trust is to provide tor the commingled in11estment of funds held by the Pl:'">lie Emplcy&rs in connection with the;r Deferred Compensation Plans. The Trust Property shall be invested in the Portf<ilios, m Gu.uanteed Investment Contracts anc in other investments recommended by the Investment Adviser under the supervision of the Board of Trustees. SECTION 2. 3 Ownersnip cf Trust Property. The Trustees shall have legal title to the Tn.:st Property. The Public Emplo1ers shall be the beneficial owners of the Trust Property. ARTIClE Ill. Trustees SECTION 31. Number and Ouafificalion of Trustees. (a) The Board of Trustees shall conSi$t of nine Trustees. Five of the Trustees shall be full-lime employees ot ""·.'ubliC Employer (the Public Employee Trustees} who are authorized by such Publ:c Employer to S&f\'e as Trustee. The remaining four Trustees snao consist of two persons who. at the time of electior. to tile Board o! Trustees. are members of the Board of Directors of !CMA and two persons who, at the time of election. &Te members of the Board of Directors of AC (the ICMA/RC 1"rustees). One of the Trustees who is a director of ICMA, and one or the Trustees who is a director of RC. shall. at the time ot election. be full-time employees of a Pubhc Employer. (bl No person may serve as a Trustee tor more than ,..;-.e lenn in any ten-year period. SECTION 3.2. Election and Term. (a) Except for the Trustees appointed to fill vacancies pursuant to Section 3.5 hereof. the Trustees shall be elected by a vote of a majority of the Public Employer$ in accordance witt the procedures a~ forth in the By-Laws. (bl At the first election of Trustees, three Trustees shalt be elected fc:>r a term of three years, three Trustees shall be elected for 11 term of two years and three Trustees shall be elected for a term of one year. At each subseq-..ent el3Ctlon. three Trustees shall be electsd for a te<m 01 three years and until his or hel' successor is electeo and qualified. SECTION 3.3. Nominations. The Tn•stees who are full-time employees of Public Employers st\8111 serve as the Nominating Committee for the Public Employee Trv-:-tees. The Nominating Cc:nmiHee shall Choose candidates for Public Employee Trustees in accordance with the procedures set forth in the By-Laws. SECTION 3.4. Resignation and Remcval. (a) Any Trustee may re$jgn as Trustee (without need for prior er subsequent accounting I by an instrument in writing signed by !he Trustee and deliv•ed to the other Trustees anel sucti r~natior1 anall be ettective upon such de11very. or at a latl'W" date ac<:ordirrg ----------·---·----~------.-..--to the terms o! the instrument. Any Ytho Trust"* may ~ lil'l'lft show tNlt all &<.•ch investments are a part of the Tr~; removed tor cause, by a vote of a matorlty ot the Public ProP«ty; Employers. (h) In.Ike, execute. acknowledge, and deliver any and all (b) Each Public Eniptoyee Trustee sri.11 resign l'ltS or her po51tion documents ot transfer and conveyance and any and &II otl'lef as Trustee within su(ty days of the <Sate on wtucn he or 11'1e ceues Instruments that mmy be necessary onppropriate 10 carry out the to be a full-time employeoe of a Pvbli<: Employer. powers herein grant«t; SECTION 3 S. Vacancies. ihe term of .Jffice or a Trust• an.II Ii} vote upon an~1 stock. bOnds. or other securities; g' ,.., general 1.,,.-mi:late an-1 a vacancy shall occur m the event or the delltt1. or speo.l Pf'O"ies or powent ur aftorney with or w1thout power c! 1esignation, removal, 9d1ud1<:ated inccmpetet\ct or other incapacity to substitutioo; exercise any conversion priYileges. subscription perform the dutin oflne oflice of a Trustee. In the cAHof a vaconey, the rights, or other opt sons, a~d make any payments incide11tal remaimng Trust"5 sha.11 appoint such person a :he,-in their discretiol"I ttlereto; oppaee, 0< consenc !o. or otherwite participate in. shall see fit (subi~ ro rile limi!ations se! forth in thlS Section). to serve corporate reorg•nizatioM or other changes affecting cotporate for the unexp11ed portion of the t'3fm of the Trustee who has resigned or securities, ano delegate discretionary powers. al"<! pay any otherWise ceased to be a Trustee. The appointmen! shall be made by a assenments or chllfQeS in conl"ecllon therewith; and generally written instrument signed by a majority of the Trustees. The person exercise any of the pow«n of an owner with respect to stocks. appoi:aed must be the same type ct Trustee {i.e .. Public Employee bonds, securities or other property held as part of the Trust Tru5tee or ICMAlAC Trustee) as the person who has ceased to be a Property; Trustee. An appoir.tment of a Trustee may be made in anticipation of a (j) enter into contracts or a.rrangements for goods or services vacancy to occur at a later date by reason of retirement or resignation. required in connection with the operation of the Retirement pro11ided that such appointment shall not become effective prior to such Trust, Including, but not limited to. conrracis with custodians and retirement or resignation. Whenever a vacancy in the number of contractS for the provision ot adminiatratiYe serviceS: Trustees Shall occur. until such vacancy is filled as provided in this (k) barrow N raiM money lof' the purpo1e of the Retirement 59cti0n 3. 5. the Trustees in office, regardless nftheir number. shall have Trust In such amount, and upon such terms and cond'tiom. as the all the powers granted to the Trustees and shall discharge all the duties Trustees shall deem advisable, provided that the aggregate imposed upon the Trustees by this Declaration. A written instrument amoutlt of such borrowtnge shall not exceed ~ of the Yalue of oertifying the exiSlence "' such vacancy signed by a majority of the the Trust Property. No person lending money to the Trustees Trustees st'.all be <:Oll(;lusive evidence ofthe existeflce of such vacancy. shall be bound to see the applieatiOn of the money lent o; to SECTION 3.6 Trustees Serve In Representar;ve Capacity. By inqu~e into its vafidlty, expediency or propriety of any wcl'l executing this Declaration. each Public Employer agrees that the Public borrowing; Employee Trustees '!lectt!d by the Public Emptoyers are autnoril:ed to (I) inCtlf f'8lllSONble expenees es r.equired for the operation oft he act as agen:s .,d repcesentatives ol the Public Ernploy«s collectively. Alttkement Truct and deduct such expenMS from the Trust AATICI.£ IV. Power& ot T,.,... SECTION 4.1. Ge<ier21 Powers. The Trustees Shall have the power to conduet the bUSine!IS of the Trust and to carry on Its openllions. Such power shall include, but shall no1 be limit8Cf to. the po-to: (a) receive the Trust Pfopeny from the Put>4ic Emp1oyersorfTom a Trustee of any Employer Tl"U8t; (bJ enter into a contract With an Investment Advil« provi<fing. i""'l'IOOQ other things. tor the establiShmerct and opet"ation of tne Portfo4io8. selection ot the Guaraoteed lnYHtment Contracts in which the Trust Property may be invested. seJection of othef investments for the Trust Property and the payment of reasonable tee$ to the Investment Adviser and to any sub--inWIStment adviser retained by the lrniestment Adviser. (c) review annually the petfonn&nefl .:>t the 10\'elltment Adviser end approve annually the conll'lld with sudl hwestment AdYiler: (d) inve11t and reinvest the Trust Property in the Portfolios, the Guaranteed Investment Contracta and in any other investment recommanded b)' the 10¥8lttment Ad'ril8r. provffied tNit it a Public Employer has cliret:ted th81 Ila moniel be i nY&Sted in specified Porttolioe or in a Guaranteed lnvestmeflt Contract, the Trustees of the RaUrement Trust shllfl invest such monies in .:cordance with ouch directions: {e) keep sud! portion of the Trust Ptoperty in cash or cash balances as the Trustees. from time to tin\41, may deem 10 be in the best inttlfeat of I~ Aetif111".-.t Trust created hereby. without ~tty tor interost lheteon; (f) accept and retain fO! 1ucn time .. they maiy deem lldviMbkl any securitin or ~her Pf'OS*'tY roceMld or tcquired b)' ttlem as Tt~ fl(;~eunaer. whether 0t not IWC1\ MWritieS or other property wou!d normally be purehaeed • inveatm.nt$ here- under: (9) cauff MY. MCUf'itlel CW' ottw C!r()pefty held U part of the Trutt Property to be regilWtld in the narM w.f the Rstifemenl Trust or in the n#M of a nommet. and to hQ1dany inYeStrNlnts in bMr• 1orm. bui hi boob and records of the Trustea SNIU et ... 2 Property; (m) pay _,.__. prope1tf aHocabie lo the Truet Property incurred in connection -'th the Dtterred ~ PteN °' the Employer Trusta and deduct t00f'l 911pen919 from !:hall portion of the Trust Prop&rty benelldally owned by thll PutJHc Empk>yer to wham IUCh expenses ll!ll property alloc:•a; {n) pmy out or the Tl'\4t PTOperty ... ntal ..-id pet'SOft9I propet"ty lb-. Income taxes~ other taxes of any' and all kinds which, in the opinion ot the Tnm.n. ,.... propefty leYied, or naa1aed under existing or Muf'8 iaw. L.:pon. Of in f9Sp8Ct of, the Trust Propeny and lllloc::ate any 8'ach r.es to ttte appropriate ec:coc.mts; (o) adopt, amend and repe9I the By-Laws, prowided hit such By- laws .,. at all timfi C()f ~ witt1 the tiK'ln$ of this Oeciaratian of Trust; (p) ampkJy per50l'IS 10 make 11Vail-. interests in the Retirement "f rust to empkJyers eUoif:lle to maintain • defemld cotnpensation Plan under section 457 ot the Internal ~ Code. as amended: (q) isSue Iha A.nnual Report of the ~t Trust. llOd the diaclostlre doa.lments and other' literMunt uaea by the Retirement Trust; (r) rnafle r.o.ns. including the purct\aMI of debt Obltgationa, prowlded that all •uctl toans shell tie# in'8Nef at the current ~.-: (a) contrxt tor. and delaQat• 11tty pcMerS Af1lnted hereunder to. IUCI"• officet'9~ ..... ~~. auditors Md attorneys .. the Trua1MS may eetect. pnMded tr.r 1ht T,....._ may~ defegttte the powers -tofttl in~ (b). (c:) 9'MS fOl of thia Section 4.1 and ,,._ "°' delegate eny .,.,..._ If llUCh ~ would W)lata ,.,. MudafY cSulltil; (t) provide for tn. indlfttnification of &he offic:en end TruateM of tM Altirernclnt Trust and pumhM8 ~ iMut1lnoe; ( u) melnt.tn tJOOk$ and teeonta. mcludin; Ollpllrata acc:ounta fot Md! Public ~ or E~ Tl'Ullt llnd Such addltlonat ..,_....accounla • .. ~ undef,anctc:onMtent.ttn, tM Oat:err9d ConlpenNtion Plln of eiacft Public E~ and ~T--~ (111 do all such act~. take all such proceedings. and exercise all llUCl'I rights and privi~. although not specifically mentioned herein, as th<; Trustees may deem necessary or appropriate to administer the Trust Property and to carry out tne purposes of the Retirement Trust. SECTION 4.2. Dis.tribution ot Trust Property. Ois~ril>Yticns of the Trust Property :i."lall b4 made to. or or: beMll of. the Public Employer. in accordan~ ""'ith :he terms of the Deferred Compensation Plans or Employer Trust!. The Tru5tees of the Retirement Trust shall be fully protect'!(! in making payments in accordance with the directions o! the Publi<: Empl1'y~ or lhe Trustees oi the Employer Trusts w1th0Yt •scertaining whether sucf1 payments are in compli&r1ce 1r-ntli the provisions of the O@ferred Compensation Plans or the agreeme11ts C(eating the Employer Trusts. SECTION 4.3. Execution of Instruments. The lrustees may unanimously designate any one or more oft™ Trustees 10 execute anv instrument or document on behalf of all. including but not limited tot~ signing or endorsement of any check and the signing of any applications. insurance and other contracts. and the action 01 such designated Trustee· or Trustees shall ha.ve the same force and effect as if taken by all the Trustees. ARTICLE V. Duty of Cad and u.bllly of TruatNs SECTION 51. Duty of Care. In ex9f'Cising the power$ hereinbefore granted to the Trustees, the Trustees shall perform all acts within their auth0tity for the exclusive purpose of providing benefits for the Public Employers. and snal! perform such acts with the cara, s!lill, pruden· e and di:~ in the circumstances then Pf8Yaillng that a prudent P.rson acting in a lit!.e ~i~ 11'"1 familiar with such matters would use in the conduct of an enterprise of a like char.cter and with like a:ms. SECTION S 2 Liability. The Trustees shall not be liable for any mistake ot judgment or other aciion ~en in good faith. and for any action taken :>r omitte:t in reliance in good faith upon the boot<s of account or otner racords of the Retirement Trust, upon the opinion of counsel, ot upon reports i18lde to the ReUrem.mt Trust by any ot its officers. empioyeieg Of agents or by the investment Adviser or any sub- i nYeStmenl ad\'iMr, ac:c:ountants, llJ)pt8i8ef'$ Of' other P:perta Of consoltanta selected wtth reason~ c:ue by the Tnmees. oft~ Of employeet of the Retirement Trust. The Tn.iSftlas sf\all aiso not be liabll: for any !oSS oustained by the Trust~ by reason of any investment made in good faith and in ac:cordanQ with the standard ot care set forth in Section 5.1. 3 . e SECTION 5 3. Bond. No T;-.. :stee shall be obligated to giye an11 bond Of other security for the performance of any ot his or her duties hereunder. AATICt.E VI. A~al ~to~ The Trusiffs shall annually su bmil to lhe Public Employers a writren r&port of the tran:;a.ctions of the Aettrement Trust, including financial stat&ments wti1ch shall be ce11if1ed by inoepenc'~nt public accountants choseii by the Trust~s ARTICLE VII. Duration ot Amendm.nl Of R9tlretMnt '!'nnt SECTION 7. 1 Withdrawal A Public Employer may. au anytime. with· or aw from thrs Retirement Trust by delivering to the Board of Trustees a statement to that effect. The withdrawing Publ:c Employer's beneficial internt in the Retirement Trust shall be pa:d out 10 the Public Employer or to the Trustee of ll'le Employef Trust. as appropriat~ SECTION 7 2. Duration The Retirement Trust shali continue until termir>ated 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 or the Trustees olthe Employer Trusts. as appropriate. SECTION 7.3. Amendment. The Retirement Trust may be amended by the vot.a vi a ma1ority of the Public Employers. each castmgonc vote. SECTION 7.4. Procedure. A resolution to terminate or amend the Retirement Trust or to rem .. ve a Trustee sha!I be submitted to a 1tote ol the Public E:mployers it: (a) a majonty of the Trustees so direct. or (b) a petition requesting a vote. signed by not less th3n 25% of the Public Employers. is submitted to the Trustees. ARTIQ.E VIU. U~ SECTION 8. l. Governing Law. Eitcept as otherwise required by state or local law, this Declaration of Trust and the Retirement Trust hereby created shall be construed an<1 regulated by the laW!S of the District of COiumbia. SECTION 8 2. Counterpart$. This Declaration may be eiiecuted by the Pi,;blic Empl0rer$ and Trustees in two or more counterparts. each of which shall De deemed an original but all of whictl together snau constitute one and the same instrument APPENDIX C TRUST AGREEMENT WITH THE ICMA RETIREMENT CORPORATION AGREEMENT made by and between the Employer named in the a!l&ched resolution and the lntemationat Ci:Y Menagement Association Retirement COl'p()f'ation (hereinaftet the ··Trustee" or "Retirement Corporation"). a nonprofit corporation organized and existing under the laws of the State ot Delaware. for the purpose ol inves~ing and otherwise administering the funds set aside by Employers In connection with deferred compensatiOn plans ~ablisheel under sectio:i 457 of the Internal Revenue Code of 1954 i the" Code 'l This Agreement shalt take effect upon acceptance by tne Trustee d its appointment by the Employer to serve as Trustee in accordance herewith as set forth In the attached reso;uhon WHEREAS. the Employer has establiahed a deferred compensation plan under section 457 of the Code (the "Plan"); WHEREAS. in order that there will be sufficient funds available to discharge the Employer's contradual ot:ligationa undet" the Plan. the Employ• desires to set aside periodically amounts equal to the amount of compensation deferred, WHEREAS. the furnts set aside, together with any and all usets derived from the in .. ·e:stment thereof, are to be exclusi11ely witNn the dol\1inion. control. and OWnef$hip of the Employer. and s:..ibjeet to the Employers at)s.'.)lute right of withdrawal, no employees ha\'ing any interest whatsoever ttlefein: NOW. THEREFORE, this Agreement witnesseth that (a) the Employer will pay monies to the Trustee to be placed in deferred compensation accounis for the EmplOYtlf"; (bJ the Trustee colleflanlS that it will hold said sums. and any other runds whictl it may rec;eive heret.mdef. in trust for the uses snd purposes and upon the terms and conditions hereinafter stated; and (c) the parties hereto agree as f~lows: ARTICLE I. Gener9J Dutift ol U. ~ Section 1. 1. General Duty of the Empk>yer. TM Employes-shaU make regular periodic paymenta equal to ttie amounts of its employees' compensation which are Ckoferred in acGordance with the terms and conditions of the Plan to ttle extent that 11Uc.h amountS are to be ;olleSted under the Trust. Section 1.2. General Duties olthe TrJStee. Tne Trustaest\611 hokS all funds received by it hefeundef. whieh, together with tt'le income !h&ntfrom. shall constitute the Trust Funds. II shall admituster the Trust Funds.~ ttie income lllefeof. and maka payments therefrom, all as hersinaftef pr011ided. Tf\e Trust.e sl'lail also hold all Trust Funds whtch are transferred tc> it as successor Trustee by the t::mployM from e:iusting deferred c:.ompensat;on arrangements with its Employ.es under plana descfibed in section 457 of the Code. Such Truat Fund$ sn.all be subject to all of the terms and provisions of this Ag<eement. ARTICLE II. Powers _. 0..... of U.. Tf\IUM In tmMtnl Int, Adlnttdlltrallun. -'Cl INtliltl ••Mt of U. Tnat Funn. SediOn 2.1. Investment Powen Bfld Outiel\ of Ille Trustee. The Trustee shall have ttwt power to invest and rl!Mnveet the principat ana income of ttwt Truat Fumta end lleep tl"i Trust Fuooa invest$C!, •"hout distinction between pnnc:tpol Ind income, in SOOUt'ities or in other property. real or pet'IC)nli. wnerever situated, including. but nol llmited to. 1tocic.1. common or pr~. bonds, retirement annuity 1nd insurance pouc:-. mart~. and other~ of indebtoaneA or ownershitt. in'MlltlMnt companies, common or group uuat funds. or Mp#ate and d<."ferent types of funda (ineJuding eq~ty. fixed income) -micti fuffiU reQUif~ ol state and local ~t.i i.ws. provided. however. that the Employer may direct inves!ment by the Tru!'!tea c:imong available investment alternatives in suet-. proportions ss the Employer authorizes in connection with its deferred compensation agreements with its employees. For these purp<>ses. these Trust Fundt. may be commingled with Trust Funds~ aside by other EmployeB pursuant to the terms of 'he !CMA Retirement Trust Investment powetS vested ir. the Trustee by the Seel ion may be delegated by the Trus!ee to any benil. irosurance or trust company, or any investment advisor, manager or agerit setected by it. Section 2.2. Administrative Powers of the Trustee. The Trustee snati h&ve the powe< in its discretion: (a) To purctlase, or subscribe f()(, any securities Of other property and to retain the same in trust. (bl To sell. exchange. conYey. transfer llr Otherwise diSpOSe of any securities or ;:>thet property held~ it, t)' private con~act, or at public auction. No persor. dealing with the Tru$lee shall be bound to see the application of th9 purchase money or to i:'q1Jif9 into the 1alidity. expediency, or propriety of any such sale Of other disposition. jc) To vote upon any stoeks. bonds. or other sec.Jrities; to give general or spe<:ial proxies or powers of attorney witn or without poW8l' of substitution: to exet"Cise any conven.ion privileges. :subSCription rights. or ottler options. and to make any payments incidental thereto; to oppose. or to consent ~o. or otf\er#ise participate in. ccrporare r&Of'ganizations or other Changes affecting corpo1ate securities, and to delegate diseretiooarf powen, end to pay any assessments or charges in connection ther-ith: and generally to exercise any of the powers ot an owner with respect to stocks, bonds. securities or other proPGftY held as part of the Trust Funds. (dl To cause any seeuritieS or other pro.;erty hefd as part of tne Trust funds to be !"8gislered in its own name, and to hOld any investments in beater fOf"m. but the boOKS and records of the Trustee shall at an tinles shaw that att sud\ imlestments are a part of the Truat Funds. (e) To borrow Of' raise money for the pu!Jl(l&e of tile Trust in Stich amount. and upon sl.ldl terms and conditions. as the Trustee shall deem aovisable: and. for any tt•m so borrowoo, to issue its pr~ note as Trustee. and to secure tne repayment \hereof by pff!dging 1111. 0t an~ J*t. of me Trust Fund6. No pef$Qrl lending money tO lhe Trustee shalt be OOtlnd to see tlle-c>Plication of the money lent~ to inquire into its va~ify, e~ or propriety of any IUctl born>wlng. (t) To keep luch pomon of the Trust Funds in cash or~ a.lances aa the Trustae. from tirne to time. may de8tl'I to be in the beSt interest or the Trust created hereby, without liability tor interest thereon. (g) To eccept and retain fm SUd\ time as it may deem•~ any securitiee or other prc>perty received or acquired by it lllS Trustee hereundef, whether 0t not St·ch aecurities or other property would normally be purc:Mled as irweatrnent hereunder. (h> To make. e1eec:ute. acknowledge. and deliver any and fill ~ of tr•nsfer and COl'l'le)'ance aoo any and all other inatruments that may be necesswy or appropriate to can-y out the ~ tierein gran1ed. -· --·------~---~-----------------------------------------· ____ _,,_9.:__ ____ ____..,,___ ______ , ___________ _ (i) "!'o settle. compromise. or submit to arbitration any claims. debts, or damages due or owing to or from the Trust Funds; :o commeflce or defend suits or legal or administrative proceeamgs; and to reprete.111 the Trust funds in au suits and legal and administrative proceedings. (j) To do all such ac:s. take all S1Jch pre>cef'.:2mgs, and exercise ali such rights and privileges, although not spectficaUy mentioned herein, as the Trustee may de-Jm neceuary to administer the Trust Funds and to carry out the purposes of this Trust Section 2.3. Distributions from the Trust Funds. The Employer hereby appoints the Trustee u its agent for the pur~-se of making distributions from the Trust Funds. In this regard the terms and conditions set forth in the Plan are to guide and control the Trustee's power. Section 2.4. Valuation of Trust Funds. At least once a year ~ ot Valuation Dates designated by the Trustee. the Trustee shall determine the value of the Trust Funds. Assets of the Trust Funds shall be valued at their market values at the cloSe of business on the Valuation Date. or. in the absence of readily Mcer1ainable market values as the Trustee shall c:letem1ine, in accordance with methods COM:.Stently followed and uniformly applied. ARTICLE Ill. For Protection of Tnat ... 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 signea by a duty deSignated official of the Employei. No communication shall be binding upon any of the Trust Funds or Trustee ur.til thev are received by the Trustee. Section 3.2. A.dvice ot Counsel. The Trustee may consult with any leg~ counsel with respect to the construetlcn of this Agreement, its duties hereunder, or any llC!, w~ich it proposes to take or omit. and shall not be liable tor any action taken or omitter4 in good faith pursuant to such advice. Section 3.3. Miscellaneous. The Trustee shall use ordinary care and reasonable diligence, but shall not be liabJe for any miatake of iodgment or other action caken in goo<l faith. The Trustee Shall not be liable for sny Joss sustained by the Trust Funds by reesons ol any investment made in good faith and In accordance witn the provisionl of t:"liS Agreement. The Trustee's duties and obligationt shall oe limited to tf'ose expressly imposed upon it by t~i& Agreement. ARTICLE JV. Tu•, hpenMs Md Ccdper1811tion of Trustee. Section 4.1. Taxee. Tt.e Trustee shall deduct from anch:harge against the Tn.ist FuOO. any taxee on the Trust Fonda or the iJ1C0me thereof or which the Trustee is reqt.tlred to pay With rHpeet to the interest of any pef$Of1 therein. Section •.2. E)(f>etlMS. The Trustee Shall duc:Juct from and charge against the Trust Funds al! re1SOnat>feexpenaea~ed by the Trustee in the admlni9tratlon of the Truat Funds, inctudlng counsel, agency, investment advi.ory, and other nf1Ce811a1Y faee. ARTia.E Y. a.1111 .... ttof Accounea. TNt Trustee shall keep accurate and detailed accounts of au investments. receipts, dt.bursemer.ts, and olhef tr1111sactions hereunder. Within ninety {90) dayt after :he dose of each fisc8l yMr, the Trustee M;.111 render in dUplic.te to the Emptoyer an ~t of its acts and tranactionsa T~t"" ~nc:ler. If a.iy pert of the T~Fundahall be invested throt.19t1 the medium of any COMmOn, eoffectlve or commingled Trust Funds, the lat annu.I report of llUCh Truit FundS sha!I be aubmlttecl wttn and Incorporated in the a.ccount. If within ninety (90) ciltys after the malling of the ac;ount or any amended account the Eml'IO'/Of' has not filed with the Trustee nota of any ob;ection ttJ any act or tranMCtion of the Truatee, the account or amended .ccount •hall bee-om• #'I llCCOUnt ttated. If any objection has been flied. and if the Employ9' is utlafltd that it 1houkf be withdrawn or If the .ccount ii lldjuated to the Employer's utl•fec:tlon, the Empioyer INlll in ..rttiAV rued with the Trustee stgnify approval of the account and It ahati !»come an account atated. When an account beeomes an account stated, such accounts.hall be finally settled, and tne Trustee shall be completely discharged and released, as if such account had been settled and allowed by a j~dgment or decree ot a court of compet'!tnt iurisdiction in an action or proceeding in which the Trustee and the Employer witre parties The Tr1Jstee shall have the right to apply at any tirne to a court or CQmpe>ent 1urisdic!ion for the judicial setllement of its account. ARTICLE Vt. Rfflgnation and Remcr.r• of Truatee. Section 6.1. Res.gnation ol Trustee. The Trnstee may resign at any lime by filing wilh the Employer its written resignation. Such resignation shall take effect sixty (60) days from ttie date of such tiling and upon appe>intment 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 removal and an appointment of a successor pursuant to Section 6.3. Such removal shall not take effect prior to siJCty 160) days from such delivery unless the Trustee agrees to an earlier effe<:tive date. Section 6.3. Appo;ntment of Successor rrustee. The appointment of a successor to the Trustee shall take effect uPon the deliver1 to the Trustee of (a) an instrument ir: writing executed by the F.mployer apPointing such successor, and e;<.onerating such successor from liability for the acts and omissions of ils predecessor. and (bl an acceptance in writing, UJCecuted by such successor. AU of the provisiOns set forth herem with ~espect to the Trustee shall relate to each successOf' with the same fOfce and effect as if such successor had been originally named as Tru!Jtee hereunder_ If a successor is not appointed with aixty (60) days after ?he Trustee gives notice of its resignaticn pursuant ro Section 6.1 .. the Trustee may apply to any court of compete,,! jurl9diction fOf appointment ol a SUC08550r. Section 6.4. Transfer of Funds to Successor. Upe>n the resignation or remo'fel or the Trustee and appointment of a successor. and after the final account of the Trustee has ben properly settled. the Trustee shall transfer and deliYef' any of the Trust Funds inv,::ilved to such successor. ARTICLE Y!I. Dunition .net Revocation of Trust AgNement. Section 7_ 1. Duration and Revocation. This Trust shall continue for such time as may be necessary to accomplish thu purp()Se for which it was created bUt may be terminate<J or revoked at any time t>y the Employer as it relates to any and/or all related participating Employees. Written notl~ of such tennination or revocation shall be given to the Trustee by the Employer.~ termination or revocation of the Trust. all of the assets thereof sl'lall return to an<S revert to the Employer. Terminatiori of this Trvst shall not, however, rolleve the Employer of the. Employer's cof\tinuing obligation to pay <Mferred compensation to Employees in accordance with the terms of the Plan. Seciion 7 .2. Amendment. The Employers hall have the rightto amend this Agreement in whOle and in part but only with the Trustee's wr •• ten consent. Any sut.:h amendment ahall become effective upon (a) delivery to the Trustee of a written instrument of amend,.,ent, and (b) the endorsement by the Trustee on &uch instrument of its cor.sent thereto. ARTICLE YUi. lllacllU.nao11s. Section 8.1. Laws of the District of Columbia to Govern. This Agreement ar.d trwt Truat hereby created stt.11 be conatrued and regulated b)' the Jews Of the Oistrict of Columb'a. Section 8.2. Successor Employ.,,. The ~empioyer-· shatl incl:Jdeany ~ who succeeds the Emp~-.r and who ttlef'9by becomes subject to the obkgations of the Employer under the Pian. Section 8.3. Withdrawals. The Employer may. at an-y time, and from time to time, wltMraw a portion ()( ail of Trust FundS created by this Agreement. Section 8.4. Ger.def and Numb9r. Tr. rnacullne includes the feminine and the singular include$ the ptutal unlen the context requlr• anothef meaning.