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12-17-96 Special 0/\ CITY OF DELRAY BEACH, FLORIDA - CITY COMMISSION E~ SPECIAL MEETING - DECEMBER 17, 1996 - 5:00 P.M. COMMISSION CHAMBERS ------------------------------------------------------------------ ------------------------------------------------------------------ The City will furnish appropriate auxiliary aids and services to afford an individual with a disability an opportunity to participate in and enj oy the benef i ts of a service, program or activity conducted by the City. Contact Doug Randolph at 243-7127 (voice) or 243-7199 (TOO), 24 hours prior to the event in order for the City to accommodate your request. Adaptive listening devices are available. ------------------------------------------------------------------ ------------------------------------------------------------------ SPECIAL MEETING AGENDA Pursuant to Section 3.07 of the Charter of the City of Delray Beach, Mayor Jay Alperin has instructed me to announce a Special Meeting of the City Commission to be held for the following purpose. (1) ORDINANCE NO. 60-96 (FIRST READING & FIRST PUBLIC HEARING): An ordinance imposing a moratorium on the acceptance or consideration of applications for conditional use approvals for certain personal wireless service towers and tower facilities, and providing for the treatment of outstanding applications. If passed, a second public hearing will be held January 7, 1997. (2) ATLANTIC HIGH SCHOOL EAGLE-ETTES FUNDING REQUEST: Consider a request from the Atlantic High School Eagle-ettes for funding support. (3) RESOLUTION NO. 88-96: A resolution adopting the restated plan and trust document for the International City Management Association (ICMA) Retirement Corporation Section 457 Deferred Compensation Plan. (4) Comments and Inquiries on Non-Agenda Items. (a) City Manager (b) City Attorney (c) City Commission ~{{Qgn ~Jv ~ JlaJiI( A 1son M cGreg Harty City Clerk ****************************************************************** Please be advised that if a person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting, such person will need to ensure that a verbatim record includes the testimony and evidence upon which the appeal is based. The City neither provides nor prepares such record. t~ Dpt~ J/2-f tJ ~k DEe 5 1996 [I"r~.. D....' ~...',.. 0'. ,rE.!." l.'. R......~... .... r.,.' t....t... ~.. -.... r.'.1-. ~.'. '.' CiTy ML1~/Af'\r-",.., f)t: . .T,~,.~:; " . ."". . ~..}. ~< L . J fIN Ii. ... . . .... l .. L t II:. L.. Ii.. CITYATTORf'EY.S OFFI'CE ".,'" '".... - "'-""B"\C}.i C.'."J-. ...., . . ';~' .,'} . ", " , ...,.,.}.J ~:~\~'IJ.L ::I\"7~:~: ~~-;::__'_",--1\..~""'I ....:.~ 4, ~L',.)J\ ,,--J._. _'_'-"'t~ \; F.\C:',,',kL. ~c. _'. ~"" Writer's Direct Line: (407) 243-7090 DELRA Y BEACH ~ AlloAmerica City MEMORANDUM 'III t! DATE: December 5, 1996 1993 TO: David Harden, City Manager FROM: Susan A. Ruby, City Attorney SUBJECT: Moratorium - Cellular Towers Attached is the ordinance regarding the cellular tower moratorium. The ordinance calls for a 90 day moratorium upon the acceptance or consideration of applications for placement of cellular towers. This ordinance does not effect pending conditional use applications as of the date of first reading. (That date needs to be incorporated in the ordinance once the first reading date is established). The ordinance needs to be advertised for two public hearings pursuant to F.S. Sec. 166.041(3)(c). P~u have any questions. SAR:ci ~~ ,r.nrG I 10 P~/~I (l/Cf t/"O Sp. J. @ "........;' ...,..... ORDINANCE NO. 60-96 AN ORDINANCE OF THE CITY OF DELRA Y BEACH, FLORIDA IMPOSING A MORATORIUM ON THE ACCEPTANCE OR CONSIDERATION OF APPLICATIONS FOR CONDITIONAL USE APPROVALS FOR CERTAIN PERSONAL WIRELESS SERVICE TOWERS AND TOWER FACILITIES; PROVIDING FOR THE TREATMENT OF OUTSTANDING APPLICATIONS; PROVIDING FOR DEFINITIONS; PROVIDING FOR EXCLUSIONS; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE AND AN EFFECTIVE DATE. WHEREAS, the City ofDelray Beach has permitted the construction of personal wireless service tower facilities as a conditional use within certain zoning districts; and, WHEREAS, various provisions of the City of Delray Beach Code of Ordinances contain provisions regulating the placement and construction of these personal wireless service tower facilities; and, WHEREAS, Public Law 104-104, commonly known as the Telecommunications Act of 1996 (the Act), was signed into law on February 8, 1996; and, WHEREAS, the Act preserves the authority of local governments to make decisions regarding the placement, construction and modification of personal wireless service facilities so long as those decisions do not unreasonably discriminate among providers of functionally equivalent services or prohibit or have the effect of prohibiting the provision of personal wireless services; and, WHEREAS, passage of the Act, changes in wireless communication technology, additional licenses granted by the Federal Communications Commission and the increased consumer demand for personal wireless services has had the effect of creating a climate of heightened competition among the providers of personal wireless services and numerous providers of personal wireless services have expressed the desire to locate personal wireless communications facilities within the City; and, WHEREAS, this increased competition has resulted in an increase in the number of applications for conditional use approval in the City; and, WHEREAS, the number of potential sites within the City which would be acceptable for the installation of personal wireless communications facilities is limited; and, WHEREAS, citizens of the community have expressed a desire that personal wireless communications facilities be located and constructed in a manner protective of their health, safety and welfare, as well as the aesthetic welfare of the City; and, ORD. 60 -96 WHEREAS, current industry technology exists which will allow personal wireless communications facilities to be designed and installed in ways that minimize aesthetic, health, safety and welfare concerns; and, WHEREAS, the City Commission has determined that the current provisions within the City's Code of Ordinances relating to the regulation of the placement and construction of personal wireless communication facilities are inadequate as they relate to compatibility with surrounding properties, proliferation of towers and ensuring that co-location of antennas is required; and, WHEREAS, the City requires time to study the adequacy of its current regulatory ordinances and to explore and develop modifications or additions to those ordinances; and, WHEREAS, processing applications for conditional use approval for personal wireless communication facilities without the benefit of additional information and study to determine the need for providers to design facilities to allow for co-location may result in the inability to allow adequate sites for all competing providers; and, WHEREAS, the City Commission has directed staff to draft any needed amendments to the City's Code of Ordinances determined to be required to protect the aesthetic, health, safety and welfare concerns found to exist; and, WHEREAS, City staff has begun the process of researching and drafting any such amendments to the City's Code of Ordinances. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRA Y BEACH, FLORIDA, AS FOLLOWS: Section 1. That the City of Delray Beach does hereby impose a ninety (90) day moratorium upon the acceptance or consideration of applications for conditional use approval for personal wireless service tower facilities, also known as communications towers or facilities. Section 2. That this Ordinance shall not apply to any legally sufficient application for conditional use approval for personal wireless service tower facilities which is pending on December ~ 1996, and shall not apply to any existing structure which is legally grandfathered or the onsite replacement of such structure. Section 3. The definition of "personal wireless services" and "personal wireless service facilities" shall be the same as those terms are defined in ~704 of the Telecommunications Act of 1996, and shall include communication facilities as described in the City's Code of Ordinances. Section 4. This Ordinance addresses tower facilities and their support structures. It specifically excludes and shall not effect pole attachments or the placement of antennae, where such attachment or placement does not involve the construction or structural modification to or expansion of a tower structure. ORD. 60_96 . - Section 5. That should any section or provision of this ordinance or any portion thereof, any paragraph, sentence, or word be declared by a Court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid. Section 6. That all ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed. Section 7. That this ordinance shall become effective immediately upon its passage on second and final reading. PASSED AND ADOPTED in regular session on second and final reading on this the _ day of ,199_. MAYOR ATTEST: City Clerk First Reading Second Reading comtow.ord ORD. -.2l2-96 . MEMORANDUM TO: MAYOR AND CITY COMMISSIONERS FROM: CITY MANAGER t1f't/1 SUBJECT: AGENDA ITEM # !;}p.~ - MEETING OF DECEMBER 17, 1996 ATLANTIC HIGH SCHOOL EAGLE-ETTES FUNDING REQUEST DATE: DECEMBER 13, 1996 This week we received the final Certified Tax Roll from the Property Appraisers Office; this is earlier than it has been in many years. Also the decrease in the Tax Roll from the Preliminary to the Final Roll is smaller than it has been in many years, only 0.12 9.- Based upon this information the Finance o . Department expects ad valorem revenues to exceed the budgeted amount by $184,208. While we do not have any budgeted funds available for the Eagle-ettes request) we could allocate money from this projected revenue surplus. In considering this request you should be aware that when the Eagle-ettes were contacted to work on Hoop-It-Up very few assisted. Also, it has been suggested by staff you might want to make our contribution contingent upon an equal amount being contributed by Boynton Beach. . . Memorandum To: David T. Harden, City Manager From: ~ Rebecca S. O'Connor, Treasurer ThroU9~ Joseph M. Safford, Director of Finance Subject: Projections for Ad Valorem Tax Revenues Date: December 13, 1996 The following will explain how my projections for Ad Valorem Tax revenues were determined: 1. Current Ad Valorem Taxes - In projecting the current Ad Valorem Tax Revenue at fiscal year ending September 30, 1997, I calculated the tax collection at 100% of the final taxable value, then subtracted out projected discounts, projected warrants and suits, and projected "unsold" tax certificates. The projections for discounts, warrants, and suits, are based on an average of the past three year history. 2. Delinquent Ad Valorem Taxes - I took a collection rate of 13.4% of the prior year tax receivable based on the past three year history. 3, Penalties and Interest - I interpolated to come up with the projected interest (based on prior year and projected delinquent tax revenues). 4. Interest Earnings - I based my projection on the last two year's rate of .29% of the projected collection. The projections are as follows: 1994 1995 1996 1997 Ad Valorem Taxes Taxable Value 2,435,480,625 2,468,533,385 2,541,583,271 2,631,550,201 Tax 19,483,845 19,624,840 20,078,508 20,657,669 Less Disc. Taken ($) ( 659,213) ( 630,646) ( 613,790) ( 665,177) Less Disc. Taken (%) - 3.38% -3,21% -3.06% -3.22% Less Warrants/Suits ( 101,418) ( 154,089) ( 124,750) (126,752) Less Unsold Tax CD's ( 40,187) ( 2,648) ( 78) ( 14,304) Total Current 18,683,027 18,837,457 19,339,890 19,851,436 Budget 19,647,840 Variance 203,596 Delinquent Taxes Total Outstanding 444,822 708.344 727,734 770,330 Total Collected 61,001 113,520 76,932 103,224 Percentage 13.7% 16.0% 10,6% 13.4% - Penalties and Interest 1994 1995 1996 1997 Actual/Projected 12,468 23,827 5,299 5,609 Interest on Collections 64,147 55,169 56,429 57,569 Percentage of Interest on .34% .29% .29% .29% Total Collected Summary Budget Projected Variance Current Ad Valorem Taxes 19,647,840 9,851,436 203,596 Delinquent 111,340 103,224 ( 8,116) Penalties & Interest 16,700 5,609 (11,091) Interest on Collections 57,750 57,569 ( 181) Total: 19,833,630 20,017,838 184,208 c: Joseph M. Safford Linda S. Turnage file: millage/estfy97 [.K (jv1 [ITY DF DELRRY BEnCt:~ CITY ATTORNEY'S OFFICE 200 ~W 1st A\"E~;l:E . Dw-JtCi)~ mftcRln/t4i)1l~43-i<Ml..4 fACSI~flLE 407(278-4755 DELRA Y BEACH F lOR I 0 " ta!.ltd MEMORANDUM A11.America City 1 ~ II I! :;~E: December 10, 1996 City Commission 1993 FROM: Susan A. Ruby, City Attorney SUBJECT: ICMA Trust Account A~reement - 457 Deferred Compensation Plan The City has previously established a 457 Deferred Compensation Plan with the International City Management Association Retirement Corporation (ICMA) and has adopted the ICMA Plan documents. Certain changes in the law and plan documents require adoption of the amended plan documents attached to the Resolution as Appendix A. The new federal law provides that: 1. Employers are trustees for benefit of plan participants and/or beneficiaries. 2. The annual maximum contribution is indexed to the C.P.I. 3. There may be a one time postponement of beginning payment dates; and, 4. Employees may make small balance distributions. The new laws also provide for certain loans, however, the loan provision is not included at this time upon recommendation of the finance department. Our office recommends the adoption of the resolution incorporating the revised plan document. By copy of this memorandum to the City Manager David Harden, our office requests that the Resolu 'on be laced on the Special Meeting Agenda for December 17, 1996. :c D vid Harden, City Manager Joe Safford, Director of Finance Alison MacGregor Harty, City Clerk MiIena Walinski, Assistant Finance Director @ POnied c~ Recycled Paper Sp. J. \ . . RESOLUTION NO. 88A-96 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, ADOPTING THE RESTATED PLAN AND TRUST DOCUMENT FOR THE ICMA RETIREMENT CORPORATION SECTION 457 DEFERRED COMPENSATION PLAN; PROVIDING THAT THE ASSETS OF THE PLAN SHALL BE HELD IN TRUST FOR THE EXCLUSIVE BENEFIT OF PLAN PARTICIPANTS AND THEIR BENEFICIARIES; PROVIDING THAT THE PLAN WILL NOT PERMIT LOANS; PROVIDING AN EFFECTIVE DATE. WHEREAS, the Ci ty of Delray Beach has previously established and maintains a deferred compensation plan for certain of its employees which is administered by the ICMA Retirement Corporation; and WHEREAS, the City's deferred compensation plan benefits the City and its employees by providing reasonable retirement securi ty for employees and increased flexibility in the City'S personnel management system, and by assisting in the attraction and retention of competent personnel; and WHEREAS, amendments to the U.S. Internal Revenue Code have been enacted that require changes to the structure of and allow enhancements of the benefits of the deferred compensation plan. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE I CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: I Section 1. That the City hereby adopts the restated ICMA Retirement Corporation Deferred Compensation Plan and Trust (the I I "Plan"), attached hereto and made a part hereof as Appendix "A". Section 2. That the assets of the Plan shall be held in trust, with the City serving as Trustee, for the exclusive benefit of the Plan participants and their beneficiaries, and the assets shall not be diverted to any other purpose. The City hereby agrees to serve as trustee under the Plan. The Trustee's beneficial ownership of Plan assets held in the ICMA Retirement Trust shall be held for the further exclusive benefit of the Plan participants and their beneficiaries. Section 3. That the Plan will not permit loans to participants. PASSED AND ADOPTED in special session on this the 17th day of December, 1996. ~~~ ATTEST: &Mn'iJ)1!-~JIn* City C rk ~~::~. < -":- ;' . ,. ^ . .,~. ,. r,"," _r;~^:~. '~~.:'dO :~ ~~_:'~ ; ~~-~~ ,:~.f.~ ' 4 5 7 ;"'} ~. ;~,l~ . . . . . . w . . . . . ~ . . . ~ . P LAN AN D T RU S T ~ . . . . ~ ~ . . . . . . . . . ~ . D 0 C U M EN T , ~ . , ~ .' . ~ .. --, ......._,.. -., ,. , '-# ICMA RETIREMENT CORPORATION This deferred compensation plan has been submitted to the Internal Revenue Service by a public employer for a Private Letter Ruling. The IRS has not yet issued a Ruling on the plan and may require changes in this document prior to issuing a Ruling. If changes are required in the document, you will be notified of the changes. . ~ .. . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 7 ...r--,-~------"'''-.o;;-~-...--.,. _..~_.._--_.. .:--. ...----- P I an and .A. 457 Deferrtd Compensation T r u s t Document ,:;~~i" t~ ,~ November 199 6 . ,~.t~,;:~-i : ~.~ ~ ~j;':' ~ ; :~:. .,- DEFERRED COMPENSATION PLAN & TRUST 2.04 Beneficiary: The person or persons designated by'.'Y..,;, .' the Participant in his Joinder Agreement who shall ~. < ARTICLE I. PURPOSE receive any benefits payable hereunder in the event of The Employer hereby establishes the Employer's De- the Participant's death. In t~e .event that the Participant,~tf. names two or more BeneficIarIes, each Beneficiary shall )'~ ferred Compensation Plan and Trust, hereafter referred . . '041" be entItled to equal shares of the benefits payable at the "i~ to as the "Plan." The Plan consists of the provisions set Participant's death, unless otherwise provided in the . ,.::~.' forth in this document. Participant's Joinder Agreement. If no beneficiary is .'. designated in the Joinder Agreement, if the Designated The primary purpose of this Plan is to provide retirement Beneficiary predeceases the Participant, or if the desig":' income and other deferred benefits to the Employees of the nated Beneficiary does not survive the Participant for a.) Employer and the Employees' Beneficiaries in accordance period of fifteen (15) days, then the estate of the Par- .t"-_ with the provisions of Section 457 of the Internal Rev- ticipant shall be the Beneficiary. ':":,.;'~ ,,,;"~~~ enue Code of 1986, as amended (the "Code"). . .:rr,~'li)- 2.05 Deferred Compensation: The amount of Normal ....~. ,11 ...., This Plan shall be an agreement solely between the Compensation otherwise payable to the Participant ;~:;rr;.~ Employer and participating Employees. The Plan and which the Participant and the Emplo:er mutually agre~::tf~~ Trust forming a part hereof are established and shall be to defer hereunder, any amount credIted to a ,:;.i:~kj maintained for the exclusive benefit of eligible Employ- Participant's Account by reason of a transfer under ,~:+i~ ees and their Beneficiaries. No part of the corpus or section 6.09, ~r any oth~r .amo~nt which the Employe~,~~; income of the Trust shall revert to the Employer or be agrees to credIt to a PartICIpant s Account'_2~': . used for or diverted to purposed other than the exclu- '.3-:r', .,.. sive benefit of Participants and their Beneficiaries. 2.06 Employee: Any individual who provides services for the Employer, whether as an employee of the ARTICLE II. DEFINITIONS Employer or as an independent contractor, and who has : been designated by the Employer as eligible to partici- " 2.01 Account: The bookkeeping account maintained for pate in the Plan. ~- each Partic}pant reflecting the cumulative amount of the ...., Participant's Deferred Compensation, including any 2.07 Includible Compensation: The amount of an .~- income, gains, losses, or increases or decreases in market Employee's compensation from the Employer for a .,., '. value attributable to the Employer's investment of the taxable year that is attributable to services performed for Participant's Deferred Compensation, and further the Employer and that is includible in the Employee's reflecting any distributions to the Participant or the gross income for the taxable year for federal income tax '.~:- Participant's Beneficiary and any fees or expenses purposes; such term does not include any amount charged against such Participant's Deferred Compensa- excludable from gross income under this Plan or any tion. other plan described in Section 457(b) of the Code or -- . any other amount excludable from gross income for 2.02 Accounting Date: Each business day that the New federal income tax purposes. Includible Compensation York Stock Exchange is open for trading, as provided in shall be determined without regard to any community ,. Section 6.06 for valuing the Trust's assets. property laws. .;,..1.;..- 2.03 Administrator: The person or persons named to 2.08 Joinder Agreement: An agreement entered into .' '.l carry out certain nondiscretionary administrative func- between an Employee and the Employer, including any',''':.: . 1:.~-';" tions under the Plan, as hereinafter described. The amendments or modifications thereof. Such agreement"~~' Employer may remove any person as Administrator shall fix the amount of Deferred Compensation, specify.; upon 60 days' advance notice in writing to such person, a preference among the investment alternatives desig- in which case the Employer shall name another person nated by the Employer, designate the Employee's .r...... ., or persons to act as Administrator. The Administrator Beneficiary or Beneficiaries, and incorporate the terms, ~~;. may resign upon 60 days' advance notice in writing to conditions, and provisions of the Plan by reference. .....~ . the Employer, in which case the Employer shall name ~~'J another person or persons to act as Administrator. \.. . . .. .. .. .. . . .. .. . .. .. .. . . .. .. . . .. .. . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . . . . . . . . . . . . . Two . -~ ~ I C M A RETIREMENT CORPORATION 2.09 Normal Compensation: The amount of compensa- to have actually terminated. In the case of a Participant tion which would be payable to a Participant by the who is an independent contractor of the Employer, Employer for a taxable year if no Joinder Agreement Separation from Service shall be deemed to have oc- were in effect to defer compensation under this Plan. curred when the Participant's contract under which services are performed has completely expired and 2.10 Normal Retirement Age: Age 70-1/2, unless the terminated, there is no foreseeable possibility that the Participant has elected an alternate Normal Retirement Employer will renew the contract or enter into a new Age by written instrument delivered to the Administra- contract for the Participant's services, and is not antici- tor prior to Separation from Service. A Participant's pated that the Participant will become an Employee of Normal Retirement Age determines the period during the Employer. which a Participant may utilize the catch-up limitation of Section 5.02 hereunder. Once a Participant has to 2.15 Trust: The Trust created under Article VI of the any extent utilized the catch-up limitation of Section Plan which shall consist of all compensation deferred 5.02, his Normal Retirement Age may not be changed. under the Plan, plus any income and gains thereon, less any losses, expenses and distributions to Participants and A Participant's alternate Normal Retirement Age may Beneficiaries. not be earlier than the earliest date that the Participant will become eligible to retire and receive unreduced ARTICLE III. ADMINISTRATION retirement benefits under the Employer's basic retire- ment plan covering the Participant and may not be later 3.01 Duties of the Employer: The Employer shall have than the date the Participant will attain age 70-1/2. If a the authority to make all discretionary decisions affect- Participant continues employment after attaining age ing the rights or benefits of Participants which may be 70-1/2, not having previously elected alternate Normal required in the administration of this Plan. The Retirement Age, the Participant's alternate Normal Employer's decisions shall be afforded the maximum Retirement Age shall not be later than the mandatory deference permitted by applicable law. retirement age, if any, established by the Employer, or the age at which the Participant actually separates from 3.02 Duties of Administrator: The Administrator, as service if the Employer has no mandatory retirement agent for the Employer, shall perform nondiscretionary age. If the Participant will not become eligible to administrative functions in connection with the Plan, receive benefits under a basic retirement plan main- including the maintenance of Participants' Accounts, tained by the Employer, the Participant's alternate the provision of periodic reports of the status of each Normal Retirement Age may not be earlier than age 55 Account, and the disbursement of benefits on behalf and may not be later than age 70-112. of the Employer in accordance with the provisions of this Plan. 2.11 Participant: Any Employee who has joined the Plan pursuant to the requirements of Article IV. ARTICLE IV. PARTICIPATION IN THE PLAN 2.12 Plan Year: The calendar year. 4.01 Initial Participation: An Employee may become a Participant by entering into a Joinder Agreement prior . 2.13 Retirement: The first date upon which both of the to the beginning of the calendar month in which the following shall have occurred with respect to a partici- Joinder .\greement is to become effective to defer pant: Separation from Service and attainment of age 65. compensation not yet earned. ... 2.14 Separation From Service: Severance of the 4.02 :\mendment of Joinder Agreement: A Participant Participant's employment with the Employer which may amend an executed Joinder Agreement to change constitutes a "separation from service" within the the amount of compensation not yet earned which is to meaning of Section 402(d)(4)(A)(iii) of the Code. In be cei'erred (including the reduction of such future general, a Participant shall be deemed to have severed defe:rals to zero) or to change his investment preference his employment with the Employer for purposes of this (subject to such restrictions as may result from the Plan when, in accordance with the established practices of nan::-e of terms of any investment made by the Em- the Employer, the employment relationship is considered ployer). Such amendment shall become effective as of .................................................................................................................................................................................................................. .. Tit r ~ t .. ',... .-... . '(. _.......-- - -,--. ... =--------.- .-~'""-' -- . ~ ...,;~. 457 Deferred Compensation P I an and T r u s t Document '.':'~"~ November 1 9 9 6 .{.;~- ~) .,.... "- the beginning of the calendar month commencing after ARTICLE VI. TRUST AND INVESTMENT the date the amendment is executed. A Participant may OF ACCOUNTS i at any time amend his Joinder Agreement to change the designated Beneficiary, and such amendment shall 6.01 Investment of Deferred Compensation: A Trust is ' become effective immediately. hereby created to hold all the assets of the Plan for the '. : exclusive benefit of Participants and Beneficiaries, ;""--. ARTICLE V. LIMITATIONS ON DEFERRALS except that expenses and taxes may be paid from the ' " Trust as provided in Section 6.03. The trustee shall be' .( 5.01 Normal Limitation: Except as provided in section the Employer or such other person which agrees to act' 5.02, the maximum amount of Deferred Compensation in that capacity hereunder. for any Participant for any taxable year shall not exceed the lesser of $7,500.00, as adjusted for the cost-of-living 6.02 Investment Powers: The trustee or the Plan Ad- * in accordance with Code section 457(e)(15) for taxable ministrator, acting as agent for the trustee, shall have ':,f-" j years beginning after December 31, 1996 (the "dollar the powers listed in this Section with respect to invest-':~'P<~; j i " ",:!", limitation"), or 33-1/3 percent of the Participant's ment of Trust assets, except to the extent that the ':;:.ii~ Includible Compensation for the taxable year. This investment of Trust assets is directed by Participants, , limitation will ordinarily be equivalent to the lesser of pursuant to Section 6.05. . .:. i:~ .," . the dollar limitation in effect for the taxable year or 25 _... " percent of the Participant's Normal Compensation. (a) To invest and reinvest the Trust without dis- 'd,'?" l tinction between principal and income iri any form j~?!, I , 5.02 Catch-Up Limitation: For each of the last three (3) of tangible or intangible property, real, personal, or';' . . i taxable years of a Participant ending before his attain- mixed, and wherever situated, including, but not by J ment of Normal Retirement Age, the maximum amount way of limitation, common or preferred stocks, : of Deferred Compensation shall be the lesser of: (1) shares of regulated investment companies and other:: I $15,000 or (2) the sum of (i) the Normal Limitation for mutual funds, bonds, loans, notes, debentures, i the taxable year, and (ii) the Normal Limitation for mortgages, certificates of deposit, interest, or par- . ~ ! each prior taxable year of the Participant commencing ticipation, equipment trust certificates, commercial after 1978 less the amount of the Participant's Deferred paper including but not limited to participation in Compensation for such prior taxable years. A prior pooled commercial paper accounts, contracts with taxable year shall be taken into account under the insurance companies including but not limited to preceding sentence only if (i) the Participant was eli- insurance, individual or group annuity, deposit gible to participate in the Plan for such year (or in any administration, and guaranteed interest contracts, other eligible deferred compensation plan established deposits at reasonable rates of interest at banking under Section 457 of the Code which is properly taken institutions including but not limited to savings into account pursuant to regulations under section 457), accounts and certificates of deposit, and other forms and (ii) compensation (if any) deferred under the Plan of securities or investments of any kind, class, or (or such other plan) was subject to the deferral limita- character whatsoever and representing interests in tions set forth in Section 5.01 any form of enterprise, wherever it may be located, organized or operated within or without the United 5.03 Other Plans: The amount excludable from a States of America, whether such investments are Participant's gross income under this Plan or any other income producing or not, without being limited in eligible deferred compensation plan under section 457 any respect by statute or court rule or decision of of the Code shall not exceed $7,500.00 (or such greater any jurisdiction now or hereafter in force purport- amount allowed under Sections 5.01 or 5.02 of the ing to limit or otherwise affect such investments. Plan), less any amount excluded from gross income Assets of the Trust may be invested in securities or under section 403(b), 402(a)(8), or 402(h)(1)(B) of the new ventures that involve a higher degree of risk Code, or any amount with respect to which a deduction than investments that have demonstrated their is allowable by reason of a contribution to an organiza- investment performance over an extended period tion described in section 501(c)(18) of the Code. of time. ............................................................ IO...................................................................................................................................................... F 0 U , I C M A RETIREMENT CORPORATION (b) To invest and reinvest all or any part of the otherwise dispose of any such property, without assets of the Trust in any common, collective or regard to restrictions applicable to fiduciaries or commingled trust fund that is maintained by a bank others and without the approval of any court. or other institution and that is available to Em- ployee plans described under sections 457 or 401 of (g) To sell for cash or credit, redeem, exchange for the Code, or any successor provisions thereto, and other property, convey, transfer, or otherwise during the period of time that an investment dispose of any property held in the Trust in any through any such medium shall exist, to the extent manner and at any time, by private contract or at of participation of the Plan, the declaration of trust public auction or otherwise, and no other person of such common, collective, or commingled trust shall be bound to see to the application of the fund shall constitute a part of this Plan. purchase money or to inquire into the validity, expediency, or propriety of any such sale or other (c) To invest and reinvest all or any part of the disposition. assets of the Trust in any group annuity, deposit administration or guaranteed interest contract issued (h) To enter into contracts for or to make commit- by an insurance company or other financial institu- ments either alone or in company with others to tion on a commingled or collective basis with the purchase or sell at any future date any property assets of any other 457 plan or trust qualified under acquired for the Trust. sectian 401 (a) of the Code or any other plan de- scribed in section 401 (a)(24) of the Code, and such (i) To vote or to refrain from voting any stocks, contract may be held or issued in the name of the bonds, ar other securities held in the Trust, to. Plan Administrator, ar such custodian as the Plan exercise any other right appurtenant to any securi- Administrator may appoint, as agent and nominee ties or ather property held in the Trust, to. give for the Employer. During the periad that an invest- general ar special praxies ar powers of attarney with ment through any such contract shall exist, to the or without power of substitutian with respect to extent of participatian af the Plan, the terms and such securities and other property, to exercise any conditians of such can tract shall constitute a part af conversion privileges, subscriptian rights, or other the Plan. optians or privileges with respect to such securities and other property and make any payments inciden- (d) To purchase part interests in real property or in tal thereto, and generally to. exercise, persanally ar mortgages an real property, wherever such real by general or limited power of attorney, any af the property may be situated, and to delegate to. a pawers of an awner with respect to. stocks, bands, property manager or the holder or halders af a securities, ar ather property held in the Trust at majority interest in such real property or mortgage any time. an real property the management and operatian af any part interest in such real property or mortgages. U) To oppase ar to. consent to. and participate in any organization, reorganization, consolidatian, (e) To. hold cash awaiting investment and to. keep merger, combination, readjustment af finances, ar such portion of the Trust in cash ar cash balances, similar arrangement with respect to any corparatian, without liability for interest, in such amounts as may campany, ar assaciatian, any of the securities af fram time to. time be deemed to. be reasanable and which are held in the Trust, to. do any act with necessary to. meet obligatians under the Plan or reference thereto., including the exercise of aptians, atherwise to be in the best interests of the Plan. the making af agreements ar subscriptians and the payment of expenses, assessments, ar subscriptions (f) To retain, manage, operate, administer, divide, that may be deemed necessary or advisable in subdivide, partition, mortgage, pledge, imprave, connectian therewith, and to. accept, hald, and alter, demolish, remodel, rep3ir, and develop in any retain any securities or ather praperty that may be manner any praperty, or any p3rt of ar partial so acquired. interest in any property, real or personal, held in the Trust, to. lease such property for any periad of time, and to. grant options to sell. exchange, lease, or ..................................................................................................................... . F i v c , .' '~ ...-- --_.-~--_. ...... .;..... -.-.- . '- .',""'. '",""". 45 7 Dtjtrrtd Comptnsation P I an and T r us t Documtnt -' Novtmbtr 199 6 . ..~~~ (k) To deposit any property held in the Trust with (0) To make, execute, acknowledge, and deliver any protective, reorganization, or similar commit- any and all deeds, leases, mortgages, conveyances, tee, and to delegate discretionary power thereto and contracts, waivers, releases, or other instruments in to pay and agree to pay part of its expenses and writing necessary or proper for the accomplishment compensation and any assessments levied with of any of the foregoing powers. respect to any such property so deposited. (p) To open and maintain any bank account or (I) To hold, to authorize the holding of, and to accounts in the name of the Plan, the Employer, or register any investment to the Trust in the name of any nominee or agent of the foregoing, including the Plan, the Employer, or any nominee or agent of the Plan Administrator, in any bank or banks. any of the foregoing, including the Plan Administra- tor, or in bearer form, to deposit or arrange for the (q) To do any and all other acts that may be ......;~ deposit of securities in a qualified central depository deemed necessary to carry out any of the powers set, - even though, when so deposited, such securities may .f.... forth herein..~; be merged and held in bulk in the name of the \oi~~ nominee of such depository with other securities 6.03 Taxes and Expenses: All taxes of any and all kinds '~:~ deposited therein by any other person, and to whatsoever that may be levied or assessed under existing 'e. organize corporations or trusts under the laws of any or future laws upon, or in respect to the Trust, or the~,,~i~ jurisdiction for the purpose of acquiring or holding income thereof, and all commissions or acquisitions or ;":7 title to any property for the Trust, all with or dispositions of securities and similar expenses of invest':''''''~' without the addition of words or other action to ment and reinvestment of the Trust, shall be paid from';~~';" indicate that property is held in a fiduciary or the Trust. Such reasonable compensation of the Plan~~:'l":' representative capacity but the books and records of Administrator, as may be agreed upon from time to time 'y the Plan shall at all times show that all such invest- by the Employer and the Plan Administrator, and ... ., ments are part of the Trust. reimbursement for reasonable expenses incurred by the t: " Plan Administrator in performance of its duties hereun- (01) Upon such terms as may be deemed advisable der (including but not limited to fees for legal, account-":: by the Employer or the Plan Administrator, as the ing, investment and custodial services) shall also be paid case may be, for the protection of the interests of from the Trust. the Plan or for the preservation of the value of an investment, to exercise and enforce by suit for legal 6.04 Payment of Benefits:, The payment of benefits or equitable remedies or by other action, or to from the Trust in accordance with the terms of the Plan waive any right or claim on behalf of the Plan or may be made by the Plan Administrator, or by any any default in any obligation owing to the Plan, to custodian or other person so authorized by the Em- renew, extend the time for payment of, agree to a ployer to make such disbursement. The Plan Adminis- reduction in the rate of interest on, or agree to any trator, custodian or other person shall not be liable with other modification or change in the terms of any respect to any distribution of Trust assets made at the obligation owing to the Plan, to settle, compromise, direction of the Employer. ":'- adjust, or submit to arbitration any claim or right in .~ favor of or against the Plan, to exercise and enforce 6.05 Investment Funds: In accordance with uniform and . any and all rights of foreclosure, bid for property i!l nondiscriminatory rules established by the Employer and i foreclosure, and take a deed in lieu of foreclosure the Plan Administrator, the Participant may direct hisl I with or without paying consideration therefor, to her Accounts to be invested in one (1) or more invest- I I commence or defend suits or other legal proceedings ment funds available under the Plan; provided, how-' I whenever any interest of the Plan requires it, and to ever, that the Participant's investment directions shall represent the Plan in all suits or legal proceedings in not violate :my investment restrictions established by the any court of law or equity or before any body or Employer. Neither the Employer, the Administrator, tribunal. nor any other person shall be li.1ble for any losses incurred by virtue of following such directions or with (n) To employ suitable consultants, depositories, any reasonable administrative dday in implementing agents, and legal counsel on behalf of the Plan. such directions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .'. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . Si~ ... - .....---,..-~~-'.-..-- .-"""---'-'-"._-.-'-- ,-~ .--------.-. _." --.....-. --. --_....._-.- -~~_.~._- _. ~-- -- .. 1 C M ^ Rl:: T IRE MEN T CORPOR:\TlnN 6.06 Valuation of Accounts: As of each Accounting than cash. unless the Employer and the Administra- Date. the Plan assets held in each investment fund tor agree to holo sl\~h other assets under the Plan. offered shaH be valued at fair market value and the Any such transfern'd amount shall be treated as a investment income and gains or losses for each fund deferral subject to the limitations of Article V, shall be determined. Such investment income and gains except that. for purposes of applying the limitations or losses shall be allocated proportionately among all of Sections 5.01 and 5.02, an amount deferred Account balances on a fund-by-fund basis. The alloca- during any taxable year under the plan from which \ tion shall be in the proportion that each such Account the transfer is accepted shall be treated as if it has balance as of the immediately preceding Accounting been deferred undl'r this Plan during such taxable I Date bears to the total of all such Account balances as of year and compensation paid by the transferor em- that Accounting Date. For purposes of this Article, all pi oyer shall be treated as if it had been paid by the Account balances include the Account balances of all Employer. Participants and Beneficiaries. (b) Outgoing Transfers: An amount may be trans- 6.07 Participant Loan Accounts: Participant Loan ferred to an eligible deferred compensation plan Accounts shall be invested in accordance with Section maintained by another employer, and charged to a 8.03 of the Plan. Such Accounts shall not share in any Participant's Accoullt under this Plan, if (I) the investment income and gains or losses of the investment Participant has separated from service with the funds described in Sections 6.05 and 6.06. Employer and become an employee of the other employer, (ii) the other employer's plan provides 6.08 Crediting of Accounts: The Participant's Account that such transfer will be accepted, and (iii) the shall reflect the amount and value of the investments or Participant and tht' employers have signed such other property obtained by the Employer through the agreements as are Ill'cessary to assure that the investment of the Participant's Deferred Compensation Employer's liability to pay benefits to the Partici- pursuant to Sections 6.05 and 6.06. It is anticipated that pant has been disclurged and assumed by the other the Employer's investments with respect to a Participant employer. The Employer may require such docu- will conform to the investment preference specified in mentation from thl' other plan as it deems necessary the Participant's Joinder Agreement, but nothing herein to effectuate the tr.\l\sfer, to confirm that such plan shall be construed to require the Employer to make any is an eligible defcrrl'O compensation plan within the particular investment of a Participant's Deferred Com- meaning of section 457 of the Code, and to assure pensation. Each Participant shall receive periodic that transfers are prnvided for under such plan. Such reports, not less frequently than annually. showing the transfers shall be nuoe only under such circum- then current value of his/her Account. stances as arc permitted under section 457 of the Code and the regul.nions thereunder. 6.09 Transfers: 6.10 Employer Liability: In no event shall the (a) Incoming Transfers: A transfer may be accepted Employer's liability to pay benefits to a Participant from an eligible deferred compensation plan main- under this Plan exceed the value of the amounts cred- tained by another employer and credited to a ited to the Participant's Account; neither the Employer \ Participant's Account under the Plan if (I) the nor the Administrator shall be liable for losses arising Participant bas separated from service with that from depreciation or shrinkage in the value of any ( employer and become an Employee of the Em- investments a!:quired under this Plan. ployer, and (ii) the other employer's plan provides that such transfer will be made. The Employer may require such documentation from the predecessor plan as it deems necessary to effectuate the transfer. to confirm that such plan is an eligible deferred compensation plan within the meaning of Section 457 of the Code, and to assure that transfers are provided for under such plan. The Employer may refuse to accept a transfer in the form of assets other ................................................................................................................................................................................................................. .. Sf I' f " -~- -----..- ~ 457 Deferred Compensation P I a n a II d T r us t Documellt November t 996 ARTICLE VII. BENEFITS (b) One lump-sum payment; 7.01 Retirement Benefits and Election on Separation (c) Approximately equal monthly, quarterly, semi- from Service: Except as otherwise provided in this annual or annual payments, calculated to continue Article VII, the distribution of a Participant's Account for a period certain chosen by the Participant. shall commence as of April 1 of the calendar year after the Plan Year of the Participant's Retirement, and the (d) Annual Payments equal to the minimum distri- distribution of such Retirement benefits shall be made butions required under Section 401 (a)(9) of the in accordance with one of the payment options de- Code over the life expectancy of the Participant or scribed in Section 7.02. Notwithstanding the foregoing, over the life expectancies of the Participant and his but subject to the following paragraph of this Section Beneficiary . 7.01, the Participant may irrevocably elect within 60 days following Separation from Service to have the (e) Payments equal to payments made by the issuer distribution of benefits commence on a fixed determin- of a retirement annuity policy acquired by the able date other than that described in the preceding Employer. sentence which is at least 61 days after Separation from Service, but not later than April 1 of the year following (f) A split distribution under which payments under the year of the Participant's Retirement or attainment options (a), (b), (c) or (e) commence or are made at of age 70-112, whichever is later. Notwithstanding the the same time, as elected by the Participant under foregoing provisions of this Section 7.01, no election to Section 7.01, provided that all payments commence defer the commencement of benefits after a separation (or are made) by the latest benefit commencement from service shall operate to defer the distribution of date under Section 7.01 and that once a payment is any amount in the Participant's Loan Account in the made subsequent payments will be made in substan- event of a default of the Participant's loan. tially nonincreasing amounts. Effective on or after J an uary I, 1997, the Participant (g) Any payment option elected by the Participant may elect to defer the commencement of distribution of and agreed to by the Employer and Administrator, benefits to a fixed determinable date later than the date provided that such option must provide for substan- described above, but not later than April 1 of the year tially nonincreasing payments for any period after following the year of the Participant's retirement or the benefit commencement date under Section 7.01. attainment of age 70-1/2, whichever is later, provided (a) such election is made after the 61st day following A Participant's or Beneficiary's selection of a payment Separation from Service and before commencement of option made after December 31, 1995, under Subsec- distributions and (b) the Participant may make only one tions (a), (c), or (g) above may include the selection of (1) such election. Notwithstanding the foregoing, the an auton1:ltic annual cost-of-living increase. Such Administrator, in order to ensure the orderly adminis- increase will be based on the rise in the Consumer Price tration of this provision, may establish a deadline after Index for All Urban Consumers (CPI-U) from the third which such election to defer the commencement of quarter of the last year in which a cost-of-living in- distribution of benefits shall not be allowed. crease was provided to the third quarter of the current year. Any increase wiII be made in periodic payment . 7.02 Payment Options: As provided in Sections 7.01, checks beginning the following January. The first cost- I 7.04 and 7.05, a Participant or Beneficiary may elect to of-living increase will be based on the rise in the CPI-U I have value of the Participant's Account distributed in from the third quarter of 1995 to the third quarter of I accordance with one of the following payment options, 1996, and will be applied to amounts paid beginning I provided t~at such option is consistent with the limita- January 1997. tions set forth in Section 7.03. A Particip:mt's or Beneficiary's election of a payment (a) Equal monthly, quarterly, semi-annual or annual option must be made at least 30 days before the pay- payments in an amount chosen by the Participant, ment of benefits is to commence. If a Participant or continuing until his/her Account is exhausted; Beneficiary fails to make a timely election of a payment option. benefits shall be paid monthly under option (c) ............................................................................................................ . E ig h t -._--+--- - --------._-----.. -------------------_.__._...._~_.._----_.- ........ 1 C M ^ R' E T 1 K J::: M .t:. N 1 L V K l' U K ~ 1 1 U l~ above for a period of five years or such shorter period of (b) If the designated Beneficiary does not continue time necessary to ensure that the amount of any install- to live for the remaining period of payments under ment is not less than SI,200 per year, without the the payment option, then the commuted value of inclusion of a cost-of-living increase. any remaining payments under the payment option shall be paid in a lump sum to the estate of the 7.03 Limitation on Options: No payment option may be Beneficiary. In the event that the Participant's estate selected by a Participant under subsections 7.02(a) or (c) is the Beneficiary, the commuted value of any . unless the amount of any installment is not less than remaining payments under the payment option shall $1,200 per year. No payment option may be selected be paid to the estate in a lump sum. by a Participant or Beneficiary under Sections 7.02, . 7.04, or 7.05 unless it satisfies the requirements of 7.05 Pre-retirement Death Benefits: Sections 401(a)(9) and 457(d)(2) of the Code, including that payments commencing before the death of the (a) Should the Participant die before he has begun Participant shall satisfy the incidental death benefits to receive the benefits provided by Section 7.01, the requirement under section 457(d)(2)(B)(i)(I). A cost-of- value of the Participant's Account shall be payable living increase included as part of a payment option to the Beneficiary commencing within the 30-day selected under Section 7.02 shall not be considered to period commencing on the 91st day after the fail to satisfy the requirement under section 457(d)(2)(b) Participant's death, unless the Beneficiary elects a that any distribution made over a period of more than 1 different fixed or determinable benefit commence- year can only be made in substantially nonincreasing ment date within 90 days of the Participant's death. amounts. Unless otherwise elected by the Participant Such benefit commencement date shall be not later (or spouse, in the case of distributions described in than the later of (I) December 31 of the year fa 1- Section 7.05 below) by the time distributions are lowing the year of the Participant's death, or (ii) if required to begin, life expectancies shall be recalculated the Beneficiary is the Participant's spouse, Decem- annually. Such election sh:tll be irrevocable as to the ber 31 of the year in which the Participant would Participant (or spouse) and shall apply to all subsequent have attained age 70-1/2. years. The life expectancy of a nonspouse Beneficiary may not be recalculated. (b) Unless a Beneficiary elects a different payment option prior to the benefit commencement date, de:lth benefits under this Section shall be paid in 7.04 Post-retirement Death Benefits: approximately equal annual installments over five years, or over such shorter period as may be neces- (a) Should the Participant die after he/she has begun sary to assure that the amount of any annual install- to receive benefits under a payment option, the ment is not less than $3,500. A Beneficiary shall be remaining payments, if any, under the payment tre:tted as if he/she were a Participant for purposes option shall be pay:tble to the Participant's Benefi- of determining the payment options available under ciary within the 30-day period commencing with Section 7.02, provided, however, that the payment the 61st day after the Participant's death, unless the option chosen by the Beneficiary must provide for Beneficiary elects payment under a different pay- payments to the Beneficiary over a period no longer . ment option that is available under Section 7.02 than the life expectancy of the Beneficiary, and within 60 days of the Participant's death. Any provided that such period may not exceed (15) years different payment option elected by a Beneficiary if the Beneficiary is not the Participant's spouse. , under this section must provide for payments at a rate that is at least as rapid under the payment (c) In the event that the Beneficiary dies before the option that was applic:tble to the Participant. In no payment of death benefits has commenced or been event shall the Employer Or Administrator be liable completed, the remaining value of the Participant's to the Beneficiary for the .llllOunt of any payment Account shall be paid to the estate of the Benefi- made in the name of the Participant before ciary in a lump sum. In the event that the the Administrator recei\'es proof of death of the Participant's estate is the Beneficiary, payment shall P:trticip:mt. be made to the estate in a lump sum. o.................................. _.................................................................................................................................................................................... N i" c ~~..,--_.:.-_.- ~._.- -<- - . . -- - "" 45 7 Deferred Compensation P I an a /I .t T r u s r Document November 1996 7.06 Unforeseeable Emergencies: ARTICLE VIII. LOANS TO PARTICIPANTS (a) In the event an unforeseeable emergency occurs, 8.01 Availability of Loans to Participants: a Participant may apply to the Employer to receive that part of the value of his/her Account that is (a) Effl:ctive January 1, 1997, the Employer may reasonably needed to satisfy the emergency need. If elect to make loans available to Participants in this such an application is approved by the Employer, Plan. I f the Employer has elected to make loans the Participant shall be paid only such amount as the available to Participants, a Participant may apply for Employer deems necessary to meet the emergency a loan from the Plan subject to the limitations and need, but payment shall not be made to the extent other provisions of this Article. that the financial hardship may be relieved through cessation of deferral under the Plan, insurance or (b) The Employer shall establish written guidelines other reimbursement, or liquidation of other assets governing the granting of loans, provided that such to the extent such liquidation would not itself cause guidelines are approved by the Plan Administrator severe financial hardship. and are not inconsistent with the provisions of this Article. and that loans are made available to all (b) An unforeseeable emergency shall be deemed to Participants on a reasonably equivalent basis. involve only circumstances of severe financial hardship to the Participant resulting from a sudden 8.02 Terms and Conditions of Loans to Participants: unexpected illness, accident, or disability of the Any loan by the Plan to a Participant under Section Participant or of a dependent (as defined in section 8.01 of the Plan shall satisfy the following requirements: 152(a) of the Code) of the Participant, loss of the Participant's property due to casualty, or other (a) Availability. Loans shall be made available to all similar and extraordinary unforeseeable circum- Participants on a reasonably equivalent basis. stances arising as a result of events beyond the control of the Participant. The need to send a (b) Intt"rest Rate. Loans must be adequately secured Participant's child to college or to purchase a new and bear a reasonable interest rate. home shall not be considered unforeseeable emer- gencies. The determination as to whether such an (c) LOJn Limit. No Participant loan shall exceed the unforeseeable emergency exists shall be based on the present \'alue of the Participant's Account. merits of each individual case. (d) For~'dosure. In the event of default on any 7.07 Transitional Rule for Pre-1989 Benefit Elections: installment payment, the outstanding balance of the In the event that, prior to January 1, 1989, a Participant loan shall be a deemed distribution. In such event, or Beneficiary has commenced receiving benefits under an actu.ll distribution of a plan loan offset amount a payment option or has irrevocably elected a payment will not occur until a distributable event occurs in option or benefit commencement date, then that pay- the Plan. ment option or election shall remain in effect notwith- standing any other provision of the Plan. (e) Reduction of Account. Notwithstanding any other provision of this Plan, the portion of the 7.08 De Minimis Accounts: Notwithstanding the fore- Particir.lIlt's Account balance used as a security going provisions of this Article, if the value of a interest held by the Plan by reason of a loan out- Participant's Account does not exceed $3,500 and (a) no standin~ to the Participant shall be taken into I amount has been deferred under the Plan with respect account for purposes of determining the amount of I I to the Participant during the 2-year period ending on the ACl'\lunt balance payable at the time of death or I the date of the distribution and (b) there has been no distribution, but only if the reduction is used as prior distribution under the Plan to the Participant repaym<."nt of the loan. pursuant to thi's Section 7.08, the Participant may elect to receive or the Employer may distribute the Participant's entire Account without the consent of the Participant. Such distribution shall be made in a lump sum. ...................................................................................................................................................................................................................... .. Te" ~--- -- --- - ..,-. ---....---. .-----.- '-"-'--. ____ __ --__'_...._H__~__~__~. ___ - I C M :\ RETIREMENT CORPORATION (f) Amount of Loan. At the time the loan is made, (within such term) instituted at the end of such the principal amount of the loan plus the outstand- period of suspension. ing balance (principal plus accrued interest) due on any other outstanding loans to the Participant from (i) Prepayment. The Participant shall be permitted the Plan and from all other plans of the Employer to repay the loan in whole or in part at any time that are qualified employer plans under section prior to maturity, without penalty. 72(p)(4) of the Code.shall not exceed the least of: U) Promissory Note. The loan shall be evidenced (1) $50,000, reduced by the excess (if any) of by a promissory note executed by the Participant and delivered to the Employer, and shall bear (a) The highest outstanding balance of loans interest at a reasonable rate determined by the from the Plan during the one (1) year Employer. period ending on the day before the date - on which the loan is made, over (k) Security. The loan shall be secured by an assignment of the Participant's right, title and (b) The outstanding balance of loans from the interest in and to his/her Account. Plan on the date on which such loan is made; or (1) Assignment or Pledge. For the purposes of paragraphs (f) and (g), assignment or pledge of any (2) One-half of the value of the Participant's portion of the Participant's interest in the Plan and a interest in all of his/her Accounts under loan, pledge, or assignment with respect to any this Plan. insurance contract purchased under the Plan, will be treated as a loan. (g) Application for Loan. The Participant must give the Employer adequate written notice, as (m) Othe;- Terms and Conditions. T.he Employer determined by the Employer, of the amount and shall fix such other terms and conditions of the loan desired time for receiving a loan. No more than as it deems necessary to comply with legal require- one (1) loan may be made by the Plan to a Partici- ments, to maintain the qualification of the Plan and pant in any calendar year. No loan shall be ap- Trust under section 457 of the Code, or to prevent proved if an existing loan from the Plan to the the treatment of the loan for tax purposes as a Participant is in default to any extent. distribution to the Participant. The Employer, in its discretion for any reason, may fix other terms (h) Length of Loan. Any loan issued shall require and conditions of the loan, not inconsistent with the Participant to repay the loan in substantially the provisions of this Article and section 72(p) of equal installments of principal and interest, at least the Code. monthly, over a period that does not exceed five (5) years from the date of the loan; provided, however, 8.03 Participant Loan Accounts: that if the proceeds of the loan are applied by the Participant to acquire any dwelling unit that is to be (a) Upon approval of a loan to a Participant by the used within a reasonable time (determined at the Employer, an amount not in excess of the loan shall time the loan is made) after the loan is made as the be transferred from the Participant's other invest- principal residence of the Participant, the five (5) ment fund(s), described in Section 6.05 of the Plan, ., year limit shall not apply. In this event, the period to the Participant's Loan Account as of the Account- of repayment shall not exceed a reasonable period ing Date immediately preceding the agreed upon determined by the Employer. Principal installments date on which the loan is to be made. and interest payments otherwise due may be sus- pended for up to one (1) year during an authorized (b) The assets of a Participant's Loan Account may leave of absence, if the promissory note so provides, be invested and reinvested only in promissory notes but not beyond the original term permitted under leceived by the Plan from the Participant as consid- this Subsection (h), with a revised payment schedule eration for a loan permitted by Section 8.01 of the Plan or in cash. Uninvested cash balances in a ............................................................................................................ . E 1 t V t" - ~ J ~ -. .....~.. ---- - -. ~ - - ~ 457 De.frrred ComperlSation P I a 11 and T r u 5 t Document November 1996 P:lrticipant's Loan Account sh:llJ not bear interest. Nothing in this Section shalJ be construed to autho- Neither the Employer, the Administrator, nor any rize any :lmOllnt to be distributed under the Plan at other person shall be li:lble for :my loss, or by re:lson a time or in :l form that is not permitted under of :lny breach, th:lt results from the Particip:lnt's Section 457 of the Code. Any Payment made to a exercise of such control. person other than the Participant pursuant to this Section sh:lll be reduced by required income tax (c) Repayment of principal and payment of interest withholding; the fact that payment is made to a shall be made by payroll deduction or, where person other than the Participant may not prevent repayment cannot be made by payroll deduction, by sllch payment from being includible in the gross check, and shall be invested in one (1) or more income of the Participant for withholding and other investment funds, in accordance with Section income tax reporting purposes. 6.05 of the Plan, as of the next Accounting Date after payment thereof to the Trust. The amount so (b) Release from Liability to Participant: The invested shall be deducted from the Participant's . Employer's liability to pay benefits to a Participant Loan Account. shall be reduced to the extent that amounts have been paid or set aside for payment to a spouse, (d) The Employer shall have the authority to former spouse, or child pursuant to paragraph (a) of establish other reasonable rules, not inconsistent the Section. No such transfer shall be effectuated with the provisions of the Plan, governing the unless the Employer or Administrator has been establishment and maintenance of Participant Loan provided with satisfactory evidence that the Em- Accounts. ployer and the Administrator are released from any further claim by the Participant with respect to such ARTICLE IX NON-ASSIGNABILITY amounts. The Participant shall be deemed to have released the Employer and the Administrator from 9.01 In General: Except as provided in Article VIII any claim with respect to such amounts, in any case and Section 9.02, no Participant or Beneficiary shall in which (i) the Employer or Administrator has been have any right to commute, sell, :lssign, pledge, tnnsfer served with legal process or otherwise joined in a or otherwise conveyor encumber the right to receive proceeding relating to such transfer, (ii) the Partici- :lny payments hereunder, which p:lyments and rights pant has been notified of the pendency of such are expressly declared to be non-assignable and proceeding in the manner prescribed by the law of non-transferable. the jurisdiction in which the proceeding is pending for service of process in such action or by mail from 9.02 Domestic Relations Orders: the Employer or Administrator to the Participant's last known mailing address, and (iii) the Participant (a) Allowance of Transfers: To the extent required fails to obtain an order of the court in the proceed- under final judgement, decree, or order (including ing relieving the Employer or Administrator from approval of a property settlement agreement) made the obligation to comply with the judgment, decree, pursuant to a state domestic rebtions law, any or order. portion of a Participant's Account may be paid or set aside for payment to a spouse, former spouse, or (c) Participation in Legal Proceedings: The Em- child of the Participant. Where necessary to carry ployer and Administrator shall not be obligated to out the terms of such an order, a separate Account defend against or set aside any judgement, decree, or shall be established with respect to the spouse, order described in paragraph (a) any legal order former spouse, or child who shall be entitled to relating to the garnishment of a Participant's ben- , make investment selections with respect thereto in efits, unless the full expense of such legal action is i the same manner as the Participant; any amount so borne by the Participant. In the event that the set aside for a spouse, former spouse, or child shall Participant's action (or inaction) nonetheless causes be paid out in a lump sum at the earliest date that the Employer or Administrator to incur such ex- benefits may be paid to the P:lrticipant, unless the pense, the amount of the expense may be charged order directs a different time or form of payment. against the Participant's Account and thereby reduce the Employer's obligation to pay benefits to the ............................................................................................................ . Twelve .- - - _._-~_. --- --_.----.__._~-.. ...... , 7~.-,:;-o I C M A RETIREMENT CORPORATION Participant. In the course of any proceeding relating Except as may be required to maintain the status of the to divorce, separation, or child support, the Em- Plan as an eligible deferred compensation plan under ployer and Administrator shall be authorized to section 457 of the Code or to comply with other disclose information relating to the Participant's applicable laws, no amendment or termination of the Account to the Participant's spouse, former spouse, Plan shall divest any Participant of any rights with or child (including the legal representatives of the respect to compensation deferred before the date of the spouse, former spouse, or child), or to a court. amendment or termination. .. ARTICLE X. RELATIONSHIP TO OTHER PLANS ARTICLE XII. APPLICABLE LAW AND EMPLOYMENT AGREEMENTS This Plan and Trust shall be construed under the laws of This Plan serves in addition to any other retirement, the state where the Employer is located and is estab- pension, or benefit plan or system presently in existence lished with the intent that it meet the requirements of or hereinafter established for the benefit of the an "eligible deferred compensation plan" under Section Employer's employees, and participation hereunder shall 457 of the Code, as amended. The provisions of this not affect benefits receivable under any such plan or Plan and Trust shall be interpreted wherever possible in system. Nothing contained in this Plan shall be deemed conformity with the requirements of that section. to constitute an employment contract or agreement between any Participant and the Employer or to give ARTICLE XIII. GENDER AND NUMBER any Participant the right to be retained in the employ of the Employer. Nor shall anything herein be construed The masculine pronoun, whenever used herein, shall to modify the terms of any employment contract or include the feminine pronoun, and the singular shall agreement between a Participant and the Employer. include the plural, except where the context requires otherwise. ARTICLE XI. AMENDMENT OR TERMINATION OF PLAN The Employer may at any time amend this Plan pro- vided that it transmits such amendment in writing to the Administrator at least 30 days prior to the effective date of the amendment. The consent of the Administrator shall not be required in order for such amendment to become effective, but the Administrator shall be under no obligation to continue acting as Administrator hereunder if it disapproves of such amendment. The Employer may at any time terminate this Plan. The Administrator may at any time propose an amend- ment to the Plan by an instrument in writing transmit- ted to the Employer at least 30 days before the effective date of the amendment. Such amendment shall become effective unless, within such 30-day period, the Em- ./ ployer notifies' the Administrator in writing that it disapproves such amendment, in which case such amendment shall not become effective. In the event of such disapproval, the Administrator shall be under no obligation to continue acting as Administrator hereunder. ............................................................................................................................................................................................. I....................... Thiruen - -..... .'......... ~h.