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Minutes - City Council - 09/19/1983
CITY COUNCIL SEPTEMBER 19, 1983 The South Burlington City Council held a regular meeting on Monday, September 19, 1983, at 7:30 p.m., in the Conference Room, City Hall, 575 Dorset Street. Members Present Hugh Marvin, Chairman; Michael Flaherty, Paul Farrar, William Peters Members Absent Leona Lansing Others Present William Szymanski, City Manager; David Minnich, Assistant City Manager; David Kaufman, Representative; Albert Audette, Street Dept., Ruth Poger, The Other Paper, William Schuele, James Ewing Appoint Sign Ordinance Review Committee as discussed at the September 17, 1983 meeting Mr. Szymanski reported he had contacted Barry Carris, Don Graff, and Doug Meredith. Mr. Meredith said he would be gone all winter and thus preferred not to serve on the committee. Dave Miller was then contacted and had agreed to serve with Messrs. Carris and Graff. When advised of the choice, Gary Farrell and Greg Premo said they had no objections. Mr. Peters then moved that Barry Carris. Don Graff and Dave Miller be named as the Sign Ordinance Review Committee. Mr. Farrar seconded with unanimous approval. Mr. Szymanski will draw up a letter to the committee and will invite them to come in and discuss the work of the committee with the Council, if they so desire. Discuss input to be given City Representatives for possible legislation in next session Mr. Kaufman said he had talked with a member of the Committee on Property Tax who advised that he would have nothing concrete to offer until that committee had met again. Mr. Kaufman advised waiting to see what happens next week before taking a stand of issues such as the property transfer tax. Mr. Farrar mentioned the long standing problem of the difficulty in enforcing local ordinances without having to go through an expensive Court process. Mr. Kaufman said this issue was on his list. Mr. Szymanski mentioned the issue of changing the County fiscal year to be in phase with everything else. He noted that Mrs. Maher had drafted a bill on it, but no action had ever been taken. Mr. Kaufman said he would check into it. Authorize City Manager to proceed and negotiate the purchase of a small parcel of land required for Kirby Road sidewalk construction Mr. Szymanski advised that because of a bend in Kirby Road, one citizen's property is within 1½ feet of the road. The back property owner has been approached and is willing to sell the city a triangle of land which could be swapped with the piece in front. This would have the added advantage of squaring off the homeowner's property. The assessor felt $400-$500 was involved. Mr. Farrar moved the City Council authorize the City Manager to acquire the deed and exchange the properties on Kirby Road. Mr. Flaherty seconded and the motion passed unanimously. Review and Accept List of Tax Penalty Waivers Mr. Farrar moved that the City Council accept the list of Tax Penalty Waivers as required by the City Charter and presented by the City Manager. Mr. Flaherty seconded with unanimous consent. Consider changes to Employee's Deferred Compensation Plan Mr. Minnich presented the Resolution (attached) and explained the four changes, all of which have been mandated by the Federal Government. He noted that the changes do not affect the City operation in any way and that employees pay 100% for their participation. Mr. Flaherty moved that the City Council sign the resolution for changes to the Employees Deferred Compensation Plan as presented by David Minnich. Mr. Farrar seconded with unanimous approval. Consider Appointments to Citizen Advisory Panel of Metropolitan Planning Organization Mr. Szymanski advised that only one response had been received from the ad. He had then contacted several people, one of whom, Mr. Ewing, was present tonight. Mr. Farrar then explained the nature of the MPO and the role of the Citizen's Advisory Panel. Mr. Szymanski will continue soliciting interested parties and will forward a list to the MPO in the next few days. Review Planning Agenda Mr. Peters raised a question on the expansion of Air Vermont. Mr. Szymanski explained that they will be putting up a building where the alert hangers were and are planning an access from the new road. The facility will be used for maintenance of aircraft. Mr. Schuele asked whether the City Council was concerned with noise levels, since this is where engines will be revved up. Mr. Farrar noted there are standards in the Zoning ordinance for this. Minutes of Regular Meeting of September 7, 1983 Mr. Farrar noted that on Page 4, middle paragraph, it should read "Section 8.101 of Article 8" and "Section 9.101 of Article 9". Mr. Flaherty then moved that the Minutes of September 7, 1983 be approved as amended. Mr. Farrar seconded with unanimous consent. Sign Disbursement Orders Disbursement Orders were signed. Other Business Mr. Marvin noted the receipt of a letter from a number of Hadley Road residents who indicate they don't want sidewalks. Mr. Audette said sidewalks were suggested because of a traffic hazard and the Rice students who walk to school that way. He added that construction is 2 to 3 years away. Mr. Szymanski said he will answer the letter and advise the residents of the safety hazard. Mr. Farrar advised adding an invitation to discuss it with the Council prior to scheduling of construction. Mr. Schuele said he had gotten a call regarding the bicycle path committee which has received no instructions. Mr. Szymanski advised that they will be hearing from Bruce O'Neill soon. Executive Session Mr. Peters moved that the Council adjourn and go into Executive Session to discuss Union negotiations and pending litigation. Mr. Flaherty seconded with unanimous consent. Following the Executive Session, the meeting adjourned at 8:55 p.m. Clerk Published by ClerkBase ©2019 by Clerkbase. No Claim to Original Government Works. RESOLUTION OF i THE CITY OF SOUTH BURLINGMN WHEREAS, the City of South Burlington maintains a deferred compensation plan for its employees which is administered by the ICMA Retirement Corportation ("the Administrator"); and WHEREAS, the Administrator has recommended changes in the plan document to comply with recent federal legislation and--aternal Revenue Service Regirlations governing said plans, . 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 in the United States have joined together to establish the ICMA Retirement Trust for the purpqse of representing the interests of the - p-ticieating employers with -respect to the collective investment of funds held under . their deferred F&npeksation planst and WHEREAS, said-Trust is a salutary developmerit which further advances the quality of administration for plans administered by th= ICMA ~etiiement Corporation; and - WHEREAS, the'city of South Burlhgton desires to continue to offer this benefit to .its employeis with 100%~of the contributions made. by the employees in specified whole dollar amounts through payroll deductions. NOW TmREE'ORE BE IT RESOLVED that the City Council of the City of South Burlington hereby adopts the deferred.compensation plan attached hereto as Appendix A as in amendment and restatement of its present deferked compensation plan, administered by the ICMA Retirement Corporation, which shall continue to act as Administrator of said plan, &Id - BE IT FURTHER RESOLVED that $he City Council of the City qf South Burlington hereby executes the ICMZi Retirement A Trust, attached hereto as Appendix B; and BE IT -R RESOLVED that me City Council of the City of south Burlington hereby adopts -Uie tnist g-eement with the ICMA Retirement Corporation, as appears at Appendix C hereto amenbent and restatement of its existing trust agreement with the ICMA Retirement Corporation, and directs the ICMA Retirement corporation as Trustee to invest all funds held under the deferred compensation plan through the ICMA Retirement Trust as soon as is practicable, and BE IT FURTHER RESOLVED that the Assistant City Manager shall be the ~oordinator for this program and shall receive necessary reports, notices etc. from the ICMA Retirement Corporation< as Administrator and shall cast, on behalf of the City of South Burl- ington, any required votes under the program. Approved by the South Burlington City Council this 19th day of September, 1983. I, Margaret A. Picard, City Clerk of the , City of South Burlington do hereby certify . that the foregoing resolution was duly , \\Ill '1, pas*; ??$ /ibpted by the City Council of:'k';Ib, ~u~~~~rton at a regular meeting &ekeof asse~f:t!+. on the J9th day of Leona J. Lansing William L. Peters - ("EMPLOYER") - I..= DEFERRED COMPENSATION PLAN I. INTRODUeTION - 4nciude anyymount excludable from gross income under this I The ~mploy& hereby 'establishes 'the Employer's Deferred - PIan or any other plan described in section 457(b) of the Oompensation Plan, hereinafter referred to as the "Plan." The Ran . Interria! Revenue Code, any amount excludable from gross consists of the provisions set forth in this document. income under section 403(b) of the Internal Revenue Code, The primary purpose of this Plan is to provide retirement income or any other amount excludable from gross income for and other deferred .knefits to ihe Employees of the Employer in - - _ federal income tax purposes. Includible Compensation shall accordance with the provisions of section 457 of the Internal -be determined without regard to any community property Revenue Code of 1954, as amended- - laws. This Plan shall be an agreement solely between the Employer 2.07 Joinder Agreement: An agreement entered into between an and participating Employees. Employee and the Employer, including any amendments or modifications thereof. Such agreement shall fix the amount 11. DEFlNiTlONS of Deferred Compensation, specify a preference among the 2.01 Account The bookkeeping account maintained for each investment alternatives designated by the Employer. Participaht reflecting the cumulative amount of the - designate the Employee's Beneficiary or Beneficiaries, and Participant's Deferred Compensation, including any income. incorporate the terms, conditions, and provisions of the Plan gains, -losses. or increases or decreases in market value by reference. attributable to the Employer's investment of the Participant's 206 Ntmnal Compensation: The amount of compensation which Deferred Compensation, and further reflecting any distribu- would be payable to a Participant by the- Employer for a tions to the Participant or the Partlcipant's Beneficiary and - taxable yeacif no Joinder Agreement were in effect to defer any fees or expenses charged against such Participant's compensation under this Plan. Deferred Compensation. 2.09 Normat Retirement Age: Age 70, unless the Participant has 2q Administrator. The person or persons named to carry out elected an alternate Normal Retirement Age by written I certain nondiscretionary administrative functions under the instrument delivered to the Administrator prior to Separation Plan. as hereinafter described. The Employer may remove from Service. A Participant's Normal Retirement Age any person as Administrator upon 60 days advance notice in determines (a) the latest time when benefits may commence writing to such person, in which case the Employer shall under this Plan (unless the Participant continues employ- name another person or persons to act as Administrator. The mentafter Normal Retirement Age). and (b) the period during Administrator may resign upon 60 days advance notice in which a Participant may utilize the catch-up limitation of writing to the Employer, in which the case the Employer shall Section 5.02 hereunder. Onoe a Participant has to any extent name another person or persons to act as Administrator. utilized the catch-up limitation of Section 5.02, his Normal Retirement Age may not be changed. 2.03 Beneficiary: The person or persons designated by the A Participant's alternate Normal Retirement Age may not Participant in his Joinder Agreement who shall receive any be earlier than the earliest date that the Participant will benefits payable hereunder in the event of the Participant's become eligible to retire and receive unreduced retirement death. benefits under the Employer's basicretirement plan covering 2.04 Deferred Compensatlon: The amount of Normal Compensa- the Participant and may not be later than the date the tion otherwise payable to the Participant which the Participant attains age 70. If a Participant continues Participant and the Employer mutually agree to defer employment after attaining age 70, not having previously hereunder. any amount credited to aparticipant's Account by . elected an alternate Normal Retirement Age, the Participant's reason of a transfer under Section 6.03. or any other amount alternate Normal Retirement Age shall not be later than the which the Employer agrees to credit to a Participant's mandatory retirement age, if any, established by the Account. Employer, or the age at which the Participant actually separates from service if the Employer has no mandatory 2.05 Employee: Any individual who provides services for the Employer, whether as an employee of the Employer or as an retirement age. If the Participant will not become ellgible to independent contractor, and who has been designated by the receive benefits under a basic retirement plan maintained by Employer as eligible to participate in the Plan. the Employer, the Participant's alternate Normal Retirement Age may not be earlier than attainment of age 55 and may not 2.06 Includible CompensaUon: The amount of an Employee's be later than attainment of age 70. compensation from the Employer for a taxable year that is attributable to services performed for the Employer and that 2.10 Participant: Any Employee who has joined the Plan pursuant is includible in the Employee's gross income for the taxable to the requirements of Article IV. - year for federal income tax purposes; such term does not 2.11 Plan Year: The calendar year. 2.12 Retlrement: The first date upon whlch both of the following plan). For purposes of thts Sect~on 5 02, a Partictpant's ' shall have occurred with respect to a Participant: Separation Includible Compensation for the current taxable year shall be from Service and attainment of Normal Retirement Age. deemed to include any Deferred Cornpensration f& the , .2 219 9.par.tlon lrom Sewla: Severance of the Participant'e employment with the Employer, A Psrticipant shell be deemed to have severed his employment with the Employer forburpos~s of this Plan .when, in accordance with the establmed practices &OF the. Employer, the employment% - - relationship is considered to have actualty terminated. In the case of a Participant who is an independent contractor of the Employee, Separation fromsenrlce shall be deemed to have - :oc~~fed when the - Participant's contract Under which - - -,sacvW are performed has campletely --expired and treated as I suah amounts constituted Defeired Compensa- I tetqinated, there- is no foreseeable possibility that the tion under this Plan for the texable'yenr -il, which the A Emptoyet will renewthe contract or enter intoanewcontract - for WParticipanP~smices, and it is not anticipated that the Participant wlU become an E mpCoyee of the Employer. ' - I . -5 - - - Vl. INVESTMENTS AND ACCOUNT VALUE_S III.~'A~MIN~_~~A~ON -- - - L .- -?- - 3.W ..- ~utl;dol€mployer. The Employer shalrhave Guthority to - E" &:;i._~r?gBrb@_C,di~~~onaq-k@cij.iona affecting the rights or -, +&r@lpfits -of Participants yvhich msly be required in the , , .; .adgJnistrat@n of this Plan, ,_. - - 3.02 ~Utlet A%!nlrtrator: The Administrator, as agent tor the ' -- ~ploy'er, shall gerform.aondiscretionary administrative - - . -functions jn connection with the Plan, including the - -- mMnten&nce of Participants1 Accounts, the provision of periodic reports of the status of each Account and the -disbursement of benefits on behalf of the Employer in gerreral creditor. . - accordance with the provisions of this Plan. - - 6.02 Credltlng of ~oooun~~he ~~rticipan~s~cc~untshall reflect - obtained by the Employer through the investment of the the amount and value of the investments or other properly _ IV PARTICIPATION IN THE PLAN Participant's Deferred Compensation.. It is-anticbated that - 4.0llnlt~ PariicfpaUonr An Employeemay.become a Participant - ,- the Employer's Investments with rasp9cf to a Participant will A byentering into a Joinder Agreement prior to the beginning conform to the investment preferen-w specified In the ' of She calendar month in which the Joinder Agreement is to Participant's Joinder Agreement, but nothing herein sha become effective to defer compensation not yet earned. construed to require-the Employer to makeany partic A02 @mndmenl of JolndN Agreement: A Participant may amend m investment of a Participant's Deferced Compensation. Each 2 ' - ansexecuted Joinder Agreement to change the amount of Participant-shallreceive period& reportg. not less frequently compensation not yet earned which is to be deferred than annually, showing the thgn-current value of his _ (including t@ reduction of suchfuture deferrals tozero) or to Account. - - change his investment preference (subject to such restric- t , tjons as may resulttrom the nature or terms of any investment 6.03 Acceptance of Transfers: Ptlrsuant to an appropriate written 8 made by the Employer). Such amendment shall become agreement, the Employer may accept and credit to a : effective as of the beginning of the calendar month Participant's Account amounts transferrd trom another $: commencing after the date the amendment is executed. A employer within the same State representing amounts held Participant may at any time amend his Joinder Agreement to by such other employer under an eligible State deferred 1 change the designated Beneficiary and such amendment compensation plan described fn sectlon 457 of the rnternal i shall become effective immediately. Revenue Code. Any such transferred amount shall not be treated as a deferral subject to the limitations of Article V, , V. LIMITATIONS ON DEFERRALS provided however, that the actual amount of any deferral under the plan from which the transfer is made shall be taken 5.01 Normal ~mltatlon: Except as provided in Section 5.02. the into account in computing the catch-up limitation under maximum amount of Deferred Compensation for any Participant for any taxable year shatl not exceed the lesser of Sectlon 5.02. $7.500.00 or 33 1/3 percent of the Participant's Includible 6.04 Employer Llablllty: ln no event shall the Employet's liability to Compensation for the taxable year. This limitation will pay benefits to a Participant under Article VI exceed the value ordinarily be equivalent to the lesser of $7.500.00 or 25 of the amounts credited to the Participant's Account; the percent of the Participant's Normal Compensation. Employer shalt not be llable for losses aris~ng from ; 5.02 C6tch-up Limitation: For each of the last three (3) taxable deprectation or shr~nkage In the value of any investments yeas of a Participant-ending before his attainment of Normal acquired under this Plan. Retirement Age, the maximum amount of Deferred Compensation shall be the lesser of: (1) $15.000 ot (2) the VII. BENEFITS sum of (i) the Normal Limitation for the taxable year, and (ii) that portion ~f the Normal_Llmitation for each of the prlor 7.01 Retirement Benefits and Electlon on Sepratbn from taxable years of the Participant commencing after 1978 Sewlce: Except as otherwise provided in this Article VII. the during which the Plan was in existence and the Parti~ipant distribution of a Participant's Account shall commence was eligible to participate in the Ptan (or in any other plan during the second calendar month after the closeof the established under section 457 of the Internal Revenue Code Year of the ParticipanYs Retirement, and the dlstribu f by an employer within the same State as the Employer) less @ such Retirement benefits shall be made in accordant the amount of Deferred Compensation for each such prior one -of the payment options described In Section 7s. taxable year (includingamoonts deferred under such other * Notwithstanding the foregolng. the Participant may irrevo- 2 2 cably elect within 60 days following Separation from Service Secttons 7.01 or 7.06. a death benef~t equal to thevalueof the ." ...-.rC-.. '. ...-. --- - Notwithstanding the foregoing, payments to a Beneficiary nr tn ntmrrhnqe a new home shall not considered ". .., r-'-'.--- - - shall not extendover a period longer than (i) the Beneficiary's unforeseeable emergencies. The determination as to life expectancy if the Beneficiary is the Participant's spouse whether such an unforeseeable emergency exists shall be or (ii) fifteen (15) years if the Beneficiary is not the I based on the merits of each individual case. Parttcipant's spouse. If no Beneficiary is designated in the Joinder Agreement, oritthe designated Beneficiary does not VIII. NON-ASSIGNABILITY I survive the Participant for a period of fifteen (15) days, then the commuted value of any remaining payments under the No Participant or' Beneficiary shaH have any right to commute, payment optton shall be paid in a lump sum to theestate of - sell, asslgn, pledge. transfer or otherwise convey or encumberthe the Participant. If the designated Beneficiary survives the right to receive any payments hereunder, which payments and Parttc~pant foc a period of fifteen (15) days, but does not rights are expressly declared to be non-assignable and non- continue to live for the remaining period of payments under transferable. the payment option (as modified, if necessary, in conformity with the third Sentence of this seetion): then the commuted - IX. RELATIONSHIP TO OTHER PLANS -AND EMPLOYMENT value of any remaining payments under the paymen! optton AGREEMENTS - shall be paid in a lupp sum to the estate of the Beneficiary- - This Plan serves in addition to any other retirement, pension or - - beneftt plan or system presently in _existence or hereinafter 7.05 Pre-retirement Death Benefit$:_Should the Participant die established tor the benefit of !he Employer's employees, and before he has begun. tolreceive the beqefits provided-by - participation hereunder shall nd affect benefits receivable under - - -. - -< - - - - - - -. -. : . 6,. sC* vL *:: - ,.- "- . - - -. . l,? - - 3 - L. any such plan or system. Nothing contained in this Plan shall be period, the Employer not~f~es the Admintstrator in writlng that tt &f#m tg 'Constitute an employment contract ,or agreement <' :betyen ,any Participant and the ~EmptoyY~-r-rol~:~Y*aw ' ~articlpant the right to be retainedirr'thawhp.lo~df the Employer. - 1 - Nor shall anything herein be construeil to modify tfie.terms ofmy Administrator hereunder. , - employment contract or agreement between a Participant and the No amendment or termination of t@ Plan shall divest a&@ - - Employer- . 1 Participant of any rights with respect,to compensation deferred , - . * - before th8 date of the amendment or termination. -X. AMENDMENT -r .-- OR TERMINATION OF PLAN I XI. APPLICABLE LAW JheEmployer may at any time amend this Plan provided thatjt This Plan shall be construed under the laws gf-tate where transmits suchiamendment ih writing to fbAdminlstrator at least the Employer is located and is established with the insnt that it .- - 30 days pdw btheeffectlve date of the amendment, .The consent meet the requirements of an "eligible State deferred compensation d'tk Administrators shall n6t be required-ln,srder for such - plan" under section r157 of the 1nterr)al Revenue Code of 1954, as - -'^amendmentto became effective, but-the Administrator shall .b , amended. The provislonsol thisPlanshall beinterpretad wherever ' under no obligation tocontinueactingasAdministratorhereunder ' - possible in conformity with the requirements of that section. - _ if trdisapproves ot such amendment3 The Employer may at any % - lims terminqteJhis Plan. XI!. GENDER AND NUMBER - , . We Admir~istrator may at any time an amendment to - " . ,-th@Plw5yy ksJrument in writing traosmittedtothe Employer at - ' .% s41e&st130 #sbfore thg effective,date otfhg amendment. Such feminine pronoup, and the sin where the context rWlUkeS 0 :amendment_shalr become effective unless.'~withinsuch 30-day -,& 5 ..<- : .. , _ -. __ - - >-- - - ' i-* - - -. - - - - - - * ! - & f - $ C - 8 - - - - i - - - f - - (L 5 F L - - & .f iii. d : i - i . f - - t I 1 T - -- 4 - > - - 1 - DECLARATION OF TRUST - of - - ICMA RETIREMENT TRUST - ART I~E I. @mi ar~d~qqflnitlons , ARTICLE II. Creation and Purpose of the Trust; Ormenhip of Twt Property - SECTION 3.1.-~ame. The Name of the Trust created hereby is the - - SECTION 2.1. Creation. The Retirement Trust is created and ICMA Retiremd Trusf, . - established by the execution of thls Declaration of Trust by the Trustees *SECTION f.2:dL?e\i.n,i~qrs, Wherever they :are used herein, the and the participating Public Et'yloyers. f~tlowin~re~s~~dl~~~~~he r ri following tppective meanings: SECTION 2.2. Purpose. The purpose of the Rettement Trust is to (a) B~-&WS The I&-@ks refer* to in Section 4.1 hereof, as provide for the commingled investment of funds he@ by the Public amended fr6qitimef6 time. - - . Employers in connection with their Deferred Compensation Plans. The Ib) Deferr~om~ePsation i~. A deferred compensation plan Trust Property Shall be invested in the Portfolios. in Guaranteed and malntainedby a PublieEmp,oyer~forthepurpose Investment Contracts and in other investments recommended by the of providirig+~~mer income and otherdefercad benefits to its Investment Adviser under the supervision of the Board of Trustees. employees in kcd-ance With the proviSions of section 457 of SECTION 2.3 Ownership of Trust Property. The Trustees shall have the Internal Revenue Code of 1954.a~ amended. legal title to the Trust Property. The Public Employers shall be the (c) Guaranteed Investment Contract. A contract entered into by Owners Of the Trust Property' the RetiremefltTmst withinsurancecompanies that provides for a guaranteed rate Of return on investments made pursuant to such contract. ARTICLE 111. Trustees (d) LCMA. The International City Management Association. SECTION 3.1. Number and Qualification of Trustees. - . ** (e) ICMA/RC Trustees. Those Trustees elected by the Public (a) The Board of Trustees shall consist of nine Trustees. Fne of Employers who. in accordance with the proyisions of Section the Trustees shall be full-time employees of a Public Employer 3.l(a) hereof, are also members of the Board of Directorsof ICMA (the Public Employee Trustees) who are authorized by such or RG. Public Employer toserveas Trustee. Therematning fourTrustees shall conslst of two persons who, at the time of election to the (f) lnvestment ~dviser. The Investment Adviser that enters into a - Board of Trustees, are members of the Board of Directors of contract with the Retirement Trust tq provide advice with respect ICMA and two persons who, at thetime of election,are members to investment of the Trust Property. - of the Board of Directors of RC (the ICMAIRC Trustees); Oneof (9) Employer-Trust. A trust created pursuant to an agreement the Trustees who is a director of ICMA, and one of the Trustees between RC and a Public Employer for the purpose of investing who is a d~rector of RC, shall, at the time of election. be full-time and admini~t~ng the funds set aside by such employer in employees of a Public Employer. connection with its deferred compensation agreements with 1t.s (b) No person may serve as a Trustee for more than one term in employees. any ten-year per~od. (h) Portfolios. The Portfolios of investments established by the SECTION 3.2. Electron and Term. , Investment -Adviser to the Retirement Trust, under the supervision of the Trustees, for the purpose of providing (a) Except for the Trustees appointed to fill vacancies pursuant investments for the Trust Property. to Sectlon 3.5 hereof, the Trustees shall be elected by a vote of a majority of the Publlc Employers in accordance with the (i) Public Employee Trustees. Those Trustees elected by the procedures set forth ~n the By-Laws. Public Employers who, in accordance with the provisions of Section 3.l(a) hereof, are full-time employees of Publlc (b) At the f~rst election of Trustees, three Trustees shall be Employers. elected for a term of three years, three Trustees shall be elected for a term of two years and three Trustees shall be elected for a (1) Public Employer. A unit of state or local government, or any term of one year. At each subsequent election, three Trustees agency or instrumentality thereof, that has adopted a Deferred shall be elected for a term of three years and untll his or her Compensation Plan and has executed this Declaration of Trust. successor rs elected and qualified. (k) RC. The International City Management Association SECTION 3.3. Nom~natlons. The Trustees who are full-time Retirement Corporation. employees of Publlc Employers shall serve as the Nominating (I) Retirement Trust. The Trust created by this Declarat~on of Comm~ttee for the Public Employee Trustees. The Nominating Trust. Comm~ttee shall choose cand~dates far Public Employee Trustees ~n (m) Trust Property. The amounts held in the ~etirelnent Trust on accordance with the procedures set forth in the By-Laws. behalf of the Public Employers. The Trust Property shall include SECTION 3 4. Resignat~on and Removal. any income resulting from theinvestment of theamountssoheld. (a) Any Trustee may reslgn as Trustee (without need for prior or (n) Trustees. The Public Employee Trustees'and ICMA/RC subsequent accounting) by an ~nstrument in writing signed by the Trustees elected by the Public Employers to serve as membersof Trustee and del~vered to the other Trustees and such resignatlon the Board of Trustees of the Retirement Trust.' shall be effective upon suchdelivery, or at a later dateaccording 1 to the terms of the tnstrument. Any of the Trustees may be removed for cause, by a vote of a majority of the Publlc Employers. (b) Each Public Employee Trustee shall resign his or her position as Trustee within sixty days of the datbon which heor sheceases to be a full-time empioyie of a Public Employer. SECTION 3.5. Vacancies. The term of office of a Trustee shall terminate and a vacancy shall occur in the event of the death. resignation. removal. adjudicated incompetence or other incapacity to perform the duties of the officeof a Trustee. In thecaseof avacancy, the remaining Trustees shall appoint such person as they in their discretion shall see fit (subject to the limitations set forth in this Section), to serve for the unexpired portion of the term of the Trustee who has resigned or otherwise ceased to be a Trustee. The appointment shall be made by a written instrument signed by a majority of the Trustees. The person appointed must be the same type of Trustee (i.e.,Public Employee Trustee or ICMNRC Trustee) as the person who has ceased to be a Trustee. An appointment of a Trustee may be made in anticipation of a vacancy to occur at a later date by reason of retirement or resignation. provided that such appointment shall not becomeeffective prior to such retirement ot resignation. Whenever a .vacancy in the number of Trustees shall occur, until such vacancy is filled as provided in this Section 3.5, the Trustees in office, regardless of their number, shall have all the powers granted to the Trustees and shall discharge all the duties imposed upon the Trustees by this Declaration. A written instrument certifying the existence of suchvacancy signed by a majority of the _ Trustees shall be conclusive evidence of the existence of such vacancy. SECTION 3.6. Trustees Serve in Representative Capacity. By executing this Declaration, each Public Employeragrees that the public f mployee Trustees elected by the Public Employers are authorized to act as agents and representatives of the Public ~m~lo~ers collectively. ARTICLE IV. Powers of Trustees SECTION 4.1. General Powers. The Trustees shall have the power to conduct the business of the Trust and to carry on its operations. Such power shall include, but shall not be limited to, the power to: (a) receive the Trust Property from the Public Employers or from a Trustee of any Employer Trust; (b) enter into a contract with an lnvestment Adviser providing. among other things, for the establishment and operation of the Portfolios, selection of the Guaranteed lnvestment Contracts in which the Trust Property may be invested, selection of other investments for theTrust Property and the payment of reasonable fees to the lnvestment Adviser and to any sub-investment adviser retained by the lnvestment Adviser; (c) review annually the performance of the Investment Adviser and approve annually the contract with such lnvestment Adviser; (d) invest and reinvest the Trust Property in the Portfolios, the Guaranteed Investment Contracts and in any other investment recommended by the investment Adviser, provided that if a Public Employer has directed that its monies be invested in spectfted Portfolios or in a Guaranteed lnvestment Contract, the Trustees of the Retirement Trust shall invest such monies in accordance wlth such directions; (e) keep such portion of the Trust Property in cash or cash balances as the Trustees. from time to time, may deem to be in the best interest of the Retirement Trust created hereby, without liability for interest thereon; (f) accept and retain for such tlme as they may deem advisable any securities or other property received or acquired by them as Trustees hereunder, whether or not such secwities or other property would normally be purchased as investments here- under; (9) cause any securit~es or other property held as part of the Trust Property to be registered in the name of the Retirement Trust or in the name of a nominee, and to holdany investments In bearer form, but the books and records of theTrustees shall at all r, t~mes show that all such ~nyestments are a part of the TrGst - Property. (h) make, waute. PCknoWlwdge. and-deliver any- and all t documents of transfer and conveyance and any and all other instruments that may be necessary or appropriate to carry out the powers herein granted; (i) vote upon any stock, bonds. or other securities; give general or special proxies or powers of attorney with or without power of substitution; exercise any conversion privileges, subscription rights, or other options, and make any payments incidental thereto; oppose, or consen! to, or otherwise participate in, , corporate reorganizations or other changes affecting corporate 1 securities, and delegate discretionary powers. and pay any assessments or charges in connection therewith; and generally exercise any of the powers of an owner with respect to stocks. bonds, securities or other property held as part of the Trust ' Property; (j) enter into contracts or arrangements for wads or services Trust, including, but not limited to, contractswithcustodiansand I required in connection with the operation of the Retirement + contracts for the provision of administrative services; _ (k) borrow or raise money for the purpose of the Retirement Trust in such amount. and upon such terms and conditions, as the f Trustees shall deem advisable, provided that the aggregate amount of such borrowings shall not exceed 3046 of the value of - the Trust Property. No person lending money to the Trustees k shall be bound to see the application of the money lent or to inquire into its validity, expediency or propriety of any such borrowing; t (I) incur reasonable expenses as required forthe operation of the : Retirement Trust and deduct such expenses from the Trust : Property; (m) pay expenses properly allocable to the Trust Property 1 incurred in connection with the Deferred Compensation Plans or 3 the Employer Trusts and deduct such expenses from that of the Trust Property beneficially owned by the Public to whom such expenses are properly allocable; (n) pay out of the Trust Property all real and personal property taxes, income taxes and other taxes of any and all kinds which, in f the opinion of the Trustees, are properly levied, or assessed under existing or future laws upon, or in respect of, the Trust Property and allocate any such taxes to the appropriate accounts; - (0) adopt, amend and repeal the By-Laws, provided that such By- Laws are at at1 times consistent with the terms of this Declaration ' of Trust; (p) employ persons to make available Interests in the Retirement Trust to employers eligtble to maintain adeferred compensation plan under section 457 of the Internal Revenue Code, as amended; (q) issue the Annual Report of the Retirement Trust, and the disclosure documents and other literature used by the Rettrement Trust; (r) make loans, Including the purchase of debt obligations, provided that all such loans shall bear interest at the current market rate: (s) contract for, and delegate any powers granted hereunder to, such officers. agents, employees. auditors and attorneys as the - Trustees may select, provided that the Trustees may not delegate the powers set forth in paragraphs (b), (c) and (0) of this Section 4.1 and may not delegate any powers ~f such delegation would violate their frduclary duties; (t) provide for the indemnification of the officers and Trustees of the Retirement Trust and purchase fiduciary insurance; (u) maintain books and records, including separate accounts f each Public Employer or Employer Trust and such addition separate accounts as are required under. and consistent with, the Deferred Compensation Plan of each Public Employer; and (v) do all such acts, take all such proceedings, and exerclse all such rights and privileges, although not specifically mentioned herein, as the Trustees may deem necessary or appropriate to administer the Trust Property and to carry out the purposes of the Retirement Trust. SECTION 4.2. Distribution of Trust Property. Distributions of the Trust Property shall be made to, or on behalf of, the Public Employer, in accordance with the terms of the Deferred Compensation Plans or Employer Trusts. The Trustees of the Retirement Trust shall be fully protected in making payments in accordance with thedirections of the Public Employers or the Trustees of the Employer Trusts without SECTION 5.3. Bond. No Trustee shall be obligated to glve any bond or other security for the performance of any of his or her duties hereunder. ARTICLE VI. Annual Report to Shareholders The Trustees shall annually submit to the Public Employers a written report of the transactions of the Retirement Trust, including financial statements which shall be certified by independent public accountants chosen by the Trustees. I ascertaining whether such payments are in compliance with the ARTICLE VII, Duration or Amendment of Retirement Trust provisions of the Deferred Compensation Plans or the agreements I creating the Employer Trusts. SECTION 7.1. Withdrawal. A Public Employer may, atany time, with- draw from this Retirement Trust by delivering to the Boardof Trustees a SECTION 4.3. Execution of Instruments. The Trustees may statement to that effect. The withdrawing Public Employer's beneficial - unanimously designate any oneor more of the Trustees to execute any interest in the Retirement Trust shall be paid Out to the Public Employer I instrument or document on behalf of all, including but not l~mited to the or to the Trustee of the Employer Trust, as appropriate. signing or endorsement of any check and the slgning of any I applications, insurance and other contracts, and the action of such SECTION 7.2. Duration. The Retirement Trust shall continue unt~l I designated Trustee or Trustees shall ha_vethesameforce and effect as rf terminated by the vote Of a majority Of the Public Employers, each I I taken by all the Trustees. , castlng one vote. Upon termination, all of the Trust Property shall be pald out to the Public Employers or the Trustks of the Employer Trusts, I ARTICLE V. Duty of Care and Liability of Trustees SECTION 5.1. Duty of Care. In exercising the powers hereinbefore I I granted to the Trustees, the Trustees shall perform all acts within their I authority for the exclusive purpose of providing benefits for the Public I Employers, and shall perform such acts with the care, skill, prudence I and diligence in the circumstances then prevailing that a prudent person I acting in a like capacity and familiar with such matters would use in the I conduct of an enterprise of a like character and with like aims. I I SECTION 5.2. Liability. The Trustees shall not be liable for any I mistake of judgment or other action taken in good faith. and for any I action taken or omitted in reliance in good faith upon the books of I I account or other records of the Retirement Trust, upon the opinion of counsel, or upon reports made to the Retirement Trust by any of its fficers, employees or agents or By the Investment Adviser or any sub- ~ @ investment adviser, accountants, appraisers or other experts or consultants selected with reasonable care by the Trustees, officers or I employees of the Retirement Trust. The Trustees shall also not be l~able I I for any loss sustained by theTrust Property by reason of any investment I made in good faith and in accordance with the standard of careset forth I in Section 5.1. as appropriate. SECTION 7.3.' Amendment. The Retirement Trust may be amended by the vote of a majority of the Public Employers. each casting one vote. SECTION 7.4. Procedure. A resolution to termlnate or amend the Retlrement Trust or to remove a Trustee shall be submitted to a vote of the Publ~c Employers if: (a) a majority of the Trustees so d~rect, or (b) a petition requesting a vote, signed by not less than 25% of the Publ~c Employers. is submitted to the Trustees. ARTICLE VIII. Miscellaneous SECTION 8.1. Governing Law. Except as otherw~se required by state or local law, this Declaration of Trust and the Retlrement Trust hereby created shall be construed and regulated by the laws of the D~strtct of Colurnbra. SECTION 8.2. Counterparts. This Declarat~on may be executed by the Public Employers and Trustees in twoor morecounterparts, each of which shall be deemed an orlginal but all of which together shall constitute one and the same instrument. TRUST AGREEMENT WITH THE ICMA RETIREMENT CORPORATION AGREEMENT made by and between the Employer named in the provided, however, that the Employer may direct investment by the attached reSOl~tlOn and the International City Management Assoclatlon Trustee among available Investment alternatives in such proportions as Retirement Corporation (hereinafter the "Trustee" Or "Retirement ' the Employer authorizes in connection with its deferred compensation Corporation"), a nonprofit corporation organized and existing under the agreements with its employees For these purposes, these Trust Funds laws of the State of Delaware, for the purpose of investing and otherwise may be with Trust Funds set aside by other Employers administering the funds set aside by Employers in connection with pursuant to the terms of the ICMA Retirement Trust. ln~e~tt'nentp~~er~ deferred compensation plans established under section 457 of the vested in the Trustee by the Section may be delegated-by the Trustee to Internal Revenue Code of 1954 (the"Cale"). This Agreement shall take any bank, Insurance or trust company, or any investment advisor. effect upon acceptance by the Trustee of its appointment by the or agent selected by it. Employer to serve as Trustee in accordance herewith as set forth in the attached resolution. Section 2.2. Administrative Powers of the Trustee. The Trustee shall WHERUS, the Employer has established a deferred compensatlon plan -have the power In its discret~on: under section 457 of the Code (the "Plan"); (a) To purchase, or subscribe for, any securities or other WHEREAS. in order that there will be sufficient funds available to property and to reta~n the same ~n trust. discharge the Employer's contractual obligations under the Plan, the Employer desires to set aside periodically amounts equal to the amount (b) To sell, exchange. convey, transfer or otherwise dispose of of compensation deferred; any securitles or other property heldby it, by private contract, or WHEREAS, the funds set aside, together with any and all assets derived at public auction. No person deallng with the Trustee shall be from the investment thereof, are to be exclusively within the dominion. bound to see the application of the purchase money or to inquire control, and ownership of the Employer, and subject to the Employer's Into the validity. expediency, or propriety of any such sale or absolute right of withdrawal, no employees having any interest other dlsposltion. whatsoever therein. (c) To vote upon any stocks, bonds, or other securities; to give .. general or speclal proxies or powers of attorney with or without OW. THEREFORE, this Agreement witnesseth that (a) the Employer power of subst~tut~on; to exerclse any conversion privileges, wrll pay monles to the Trustee to be placed in deferred compensatlon subscription rights, or other options. and to make any payments accounts for the Employer: (b) the Trustee covenants that it will hold ~ncidental thereto; to oppose, or to consent to, or otherwise sald sums. and any other funds whlch it may receive hereunder. ~n trust participate 10, corporate reorganizations or other changes for the uses and purposes and upon the terms and condit~ons affecting corporate securities, and to delegate d~scretionary herelnafter stated; and (c) the parties hereto agree as follows: powers, and to pay any assessments or charges in connection ARTICLE I. General Duties of the Parties. therewith, and generally to exerclse any of the powers of an Section 1.1. General Duty of the Employer. The Employershaltmake owner wlth respect to stocks, bonds, secur~ties or other property regular perlodlc payments equal to the amounts of its employees' held as part of the Trust Funds compensation whlch are deferred in accordance with the terms and (d) To cause any securities or other property held as part of the conditions of the Plan to the extent that such amounts are to be invested Trust Funds to be registered In its own name. and to hold any under the Trust ~nvestments ~n bearer form, but the books and records of the Sectlon 1.2 General Dutles of the Trustee. The Trustee shall hold all Trustee shall at all times show that all such investments area par( funds recelved by ~t hereunder, which, together with the Income of the Trust Funds. therefrom, shall const~tute the Trust Funds It shall admlnlster the Trust (e) To borrow or rase money for the purpose of the Trust in such Funds, collect the lncome thereof. and make payments therefrom, all as amount, and upon such terms and condltlons, as the Trustee shall heremafter prov~ded The Trustee shall also hold all Trust Funds whlch deem adv~sable, and, for any sum so borrowed, to lssue ~ts are transferred to tt as successor Trustee by the Employer from exlstlng promissory note as Trustee, and to secure the repayment thereof deferred compensat~on arrangements wlth ~ts Employees under plans by pledglng all, or any part, of the Trust Funds No person lendlng described ~n sectton 457 of the Code Such Trust Funds shall besublect money to the Trustee shall be bound to see the application of the to all of the terms and provlslons of thls Agreement money lent or to lnqulre Into ~ts valldlty. expediency or propriety of any such borrowing ARTICLE 11. Powers and Duties of the Trustee in Investment. (f) To keep such portlon of the Trust Funds ~n cash or cash Administration, and Disbursement 01 the Trust Funds. balances as the Trustee, from tlme to trme, may deem to be in the Section 2 1 lnvestment Powers and Duties of the Trustee. The Trustee shall have the power to Invest and relnvest the princlpal and lncome of the Trust Funds and keep the Trust Funds Invested, wlthout dlstlnctlon between princlpal and income, in securitles or in other property, real or personal, wherever situated. including, but not limited to, stocks, common or preferred. bonds. retirement annutty and a nsurance policies, mortgages. and other evidences of Indebtedness or ownersh~p, Investment companies, common or group trust funds, or separate and different types of funds (including equity, flxed Income) whlch fulfill requirements of state and local governmental laws. best Interest of the Trust created hereby, without liability for interest thereon. (g) To accept and retaln for such ttme as it may deem adv~sable any securltles or other property recelved or acqulred by ~t as Trustee hereunder, whether or not such securrties or other property would normally be purchased as investment hereunder (h) To make, execute, acknowledge, and deliver any and all documents of transfer and conveyance and any and all other Instruments that may be necessary or appropriate to carry out the powers herein granted. (i) To settle, compromise, or submit to arbitration any claims, debts. or damages due or owing to or from the Trust Funds: to commence or defend suits or legal or administrative proceedings; and to represent the Trust Funds in all suits and legal and administrative proceedings. (1) TO do all such acts. take all such proceed~ngs. and exerc~se all such rights and pr~vlleges, although not specrf~cally mentioned herein, as the Trustee may deem necessary to adm~nlster the Trust Funds and to carry out the purposes of thls Trust Sectton 2 3 Orstr~but~ons from the Trust Funds The Employer hereby appoints the Trustee as its agent for the purpose of mak~ng dlstrlbut~ons from the Trust Funds. In thls regard the terms and condit~ons set forth In the Plan are to gulde and control the Trustee's power Sectron 2.4 Valuat~on of Trust Funds At least once a year as of Valuatron Dates designated by the Trustee, the Trustee shall determlne the value of the Trust Funds. Assets of the Trust Funds shall be valued at thew market values at the close of busmess on the Valuation Date, or. In the absence of readtly ascertainable market values as the Trustee shall determlne, In accordance w~th methods consistently followed and uniformly appl~ed I ARTICLE Ill. For Protection of Trustee. 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 aduly 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 takeor omit, andshall 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 shall not be liable for any When an account becomes an aeeount staled; such account shall be finally settled. and the Trustee shall be completely discharged and released, as if such account had been settled and allowed by a judgment or decree of a cour! of competent jurisdiction in an action or proceeding in which the Trustee and the Employer were parties. The Trustee shall have the right to apply at any time to a court of competent jurisdiction for the judicial settlement of its account. ARTICLE VI. Resignation and Removal of Trustee. Section 6.1. Resignation of Trustee. The Trustee may resign at any time by filing with the Employer its written resignation. Such resignation shall take effect sixty (60) days from the date of such filing 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 removal and an appointment of a successor pursuant to Section 6.3. Such 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 appointment 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 with sixty (60) days after the Trustee gives notice of its resignation pursuant to Section 6.1.. the Trustee 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 removal 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. loss sustained by the Trust Funds by reasons of any investment made in ARTICLE VII. Duration and Revocation of Trust Agreement. good faith and in accordance with the provisions of this Agreement. Section 7.1. Duration and Revocation. This Trust shall continue for The Trustee's duties and obligations shall be limited to those such time as may be necessary to accomplish the purpose for which it expressly imposed upon it by this Agreement. was created but may be terminated or revoked at any time by the I ARTICLE IV. Taxes, Expenses and Com~ensation of Trustee. Employer as ~t relates-to any and/or all related participating Employees. Wrltten notlce of such termlnatron or revocatron shall be glven to the Taxes The Trusteesha~~deductfromandchargeagalnst Trustee by the Employer Upon terrnlnat~on or revocatron of the Trust. the Trust Funds any taxes On the Trust Funds Or the Income Or all of the assets thereof shall return to and revert to the Employer whrch the Trustee Is required pay with respect the Interest of any Termrnatlon of thjs Trust shall not, however, relleve the Employer of the person thereln Employer's contlnulng obl~gatlon to pay deferred compensation to Sectron 4 2. Expenses The Trustee shall deduct from and charge Employees In accordance with the terms of the Plan agalnst the Trust Funds all reasonable expenses Incurred by the Trustee Sectlon 7 2 Amendment The Employer shall have the r~ght to amend In the adm~nlstratlon of the Trust Funds, lncludlng counsel, agency, this Agreement In whole and rn part but only wrth the Trustee's written Investment advrsory, and other necessary fees consent Any such amendment shall become effectlve upon (a) delrvery ARTICLE V. Settlement of Accounts. The Trusteeshall keepaccurate to the Trustee of a wrrtten Instrument of amendment, and (b) the and detalled accounts of all ~nvestments, receipts, drsbursements, and endorsement by the Trustee on such ~nstrument of ~ts consent thereto other transact~ons hereunder ARTICLE VIII. Miscellaneous. Wlthln nrnety (90) days after the close of each f~scal year, the Trustee Section 8 1 Laws of the Dlstr~ct of Columbra to Govern Th~s shall render ln duplicate to the Employer an account of ~ts acts and Agreement and the Trust hereby created shall be construed and transact~ons as Trustee hereunder If any part of the Trust Fund shall be Invested through the med~um of any common, collective or comm~ngled regulated by the laws of the O~strrct of Columb~a. Trust Funds, the last annual report of such Trust Funds shall be Section 8 2 Successor Employers The "Employer" shall ~ncludeany subm~tted wlth and ~ncorporated ~n the account person who succeeds the Employer and who thereby becomes subject If w~thln nlnety (90) days after the ma~l~ng of the account or any to the oblrgat~ons of the Employer under the Plan amended account the Employer has not flled wlth the Trustee not~ceof Sect~on 8 3 W~thdrawals The Employer may, at any t~me, and from any objectton to any act or transaction of the Trustee, the account or time to time. withdraw a Portion or all of Trust Funds created by this amended account shall become an account stated If any objection has Agreement been flled, and ~f the Employer IS satlsfled that 11 should be wrthdrawn or Sectlon 84 Gender and Number The masculine lncludes the lf the account 1s adlusted to the Employer's satlsfactlon, the Employer fem~nlne and theslngular Includes the plural unless the context requlres shall In wr~tlng flled wlth the Trusteeslgnlfy approval of the account and another meaning. it shall become an account stated