Res 02-04RESOLUTION NO. 2-04
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF DI~,LRAY BEACH, FLORIDA, ADOPTING THE
AMENDED AND RESTATED PLAN AND TRUST
DOCUMENT FOR THE ICMA RETIREMENT
CORPORATION SECTION 457 DEFERRED
COMPENSATION PLAN EFFECTIVE JANUARY 1, 2004;
PROVIDING THAT THE ASSETS OF THE PLAN S/-LAI.I.
BE HELD IN TRUST FOR THE EXCLUSIVE BENEFIT OF
PLAN PARTICIPATES AND THEIR BENEFICIARIES;
PROVIDING THAT THE PLAN WILL NOT PERMIT
LOANS; PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City 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 ICMA-RC); and,
WHEREAS, the City's deferred compensation plan benefits the City and its employees by
providing reasonable retirement security for employees and increased flexib'flity in the City's
personnel management system, and by assisting in the attraction and retention of competent
personnel; and,
WHEREAS, the ICMA-RC is using a negative election process wherein no notification is
necessary to ICMA-RC to take advantage of changes in the law; and,
WHEREAS, however, the City for its own record keeping seeks to adopt this resolution
which adopts the amended and restated plan; 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 CITY OF DFJ.R_AY BEACH, FLORIDA, AS FOLLOWS:
Section 1. That the City hereby amends and adopts the restated ICMA Retirement
Corporation Deferred Compensation Plan and Trust (the "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 se~e as trustee under the Plan.
The Trustee's beneficial ownership of Plan assets held in the Vantage 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 regular session on this the ~ day of January, 2004.
A'I'I'EST:
City Clerk
2 RES. NO. 2-04
Deferred
Compensation
Plan
&TRUST
972
DEFERRED COMPENSATION PLAN & TRUST
As Amended and Restated Effective January 1, 2001
The Employer hereby establishes the Employer's Deferred Compensation Plan and Trust, hereafter referred
to as the "Plan." The Plan consists of the provisions set forth in this document.
The primary purpose of this Plan is to provide retirement income and other deferred benefits to the Employ-
ees of the Employer and the Employees' Beneficiaries in accordance with the provisions of Section 457 of the
Internal Revenue Code of 1986, as amended (the "Code").
This Plan shall be an agreement solely between the Employer and participating Employees. The Plan and
Trust forming a part hereof are established and shall be maintained for the exclusive benefit of Participants
and their Beneficiaries. No part of the corpus or income of the Trust shall revert to the Employer or be used
for or diverted to purposes other than the exclusive benefit of Participants and their Beneficiaries.
Ardde II. Definitions
2.01 Account: The bookkeeping account maintained for each Participant reflecting the cumulative amount
of the Participant's Deferred Compensation, including any income, gains, losses, or increases or decreases in
market value attributable to the Employer's investment of the Participant's Deferred Compensation, and
fi~rther reflecting any distributions to the Participant or the Partidpant's Benefidary and any fees or expenses
charged against such Participant's Deferred Compensation.
2.02 Accounting Date: Each business day that the New York Stock Exchange is open for trading, as pro-
vided in Section 6.06 for valuing the Trust's assets.
2.03 Administrator:. The person or persons named to carry out c~rmin nondiscretionary administrative
functions under the Plan, as hereinafter described. The Employer may remove any person as Administrator
upon 60 days' advance notice in writing to such person, in which case the Employer sh~l name another
person or persons to act as Administrator. The Administrator may resign upon 60 ~days' advance notice in
writing to the Employer, in which case the Employer shall name another person or persons to act as Admin-
istrator.
2.04 Automatic Distribution Date:. Prior to January 1, 2002, "Automatic Distribution Date" m~ans the
60th day of the calendar year after the Plan Year of the Participant's Retirement or any other date permitted
under the regulations promulgated under Code section 457. On and after January 1, 2002, "Automatic
Distribution Date" means April 1 of the calendar year after the Plan Year the Participant attains age 70-1/2
or, if later, has a Severance Event.
2.05 Beneliciary= The person or persons designated by the Participant in his or her Joinder Agreement who
shall receive any benefits payable hereunder in the event of the Partidpant's death. In the event that the
Participant names two or more Beneficiaries, each Beneficiary shall be enfided to equal shares of the benefits
payable at the Participant's death, unless otherwise provided in the Partidpant's Joinder Agreement. If no
benefidary is designated in the Joinder Agreements if the Designated Beneficiary predeceases the Participant,
or if the designated Beneficiary does not survive the Participant for a period of fifteen (15) days, then the
esLate of the Participant shall be the Beneficiary. If a married Participant resides in a community or marital
property state, the Participant shall be responsible for obtaining appropriate consent of his or her spouse in
the event the Participant designates someone other than his or her spouse as Beneficiary.
2.06 Deferred Compensation: The amount of Normal Compensation otherwise payable to the Participant
which the Participant and the Employer mutually agree to defer hereunder, any amount credited to a Partici-
pant's Account by reason of a transfer under Section 6.09, a rollover under Section 6.10, or any other
amount which the Employer agrees to credit to a Participant's Account.
2.07 Dollar Limitation: The appliCable dollar amount within the meaning of Section 457(b)(2)(A) of the
Code, as adjusted for the cost-of-living in accordance with Section 457(e)(15) of the Code.
2.08 Employee: .Any individual who provides services for the Employer, whether as an employee of the
Employer or as an independent contractor, and who has been designated by the Employer as eligible to
participate in the Plan.
2.09 Employen , which is a political subdivision, agency or
instrumentality of the [State/Commonwealth] of , within the
meaning of Section 414(d) of the Code and Section 3(32) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA").
2.10 457 Catch-Up Dollar Limitation: Prior to January 1, 2002, "457 Catch-Up Dollar Limitation"
means $15,000. On and afrer January 1, 2002, "457 Catch-Up Dollar Limitation" means twice the Dollar
Limitation.
2.11 Includible Compensation: The amount of an Employee's compensation from the Employer for a
taxable year that is attributable to services performed for the Employer and that is includible in the Employ-
ee's gross income for the taxable year for federal income tax purposes as defined in Section 457(e)(5) of the
Code; such term does not include any amount excludable from gross income under this Plan or any other
plan described in Section 457(b) of the Code or any other amount exdudable from gross income for federal
income tax purposes. Includible Compensation shall be determined without regard to any community
property laws.
2.12 Joinder Agreement: An agreement entered into between an Employee and the Employer, including
any amendments or modifiCations thereof. Such agreement shall fix the amount of Deferred Compensation,
specify a preference among the investment alternatives designated by the Employer, designate the Employee's
Beneficiary or Beneficiaries, and incorporate the terms, conditions, and provisions of the Plan by reference.
2.13 Normal Compensation: The amount of Compensation which would be payable to a Participant by
the Employer for a taxable year if no Joinder Agreement were in effect to defer compensation under this
Plan.
2.14 Normal Limitation: The maximum amount of Deferred Compensation for any Participant for any
taxable year (other than amounts referred to in Sections 6.09 and 6.10).
2.15 Normal Retirement Age: Age 70-1/2, unless the Participant has elected an alternate Normal Retire-
ment Age by written instrument delivered to the Administrator prior to a Severance Event. A Participant's
Normal Retirement Age determines the period during which a Participant may utilize the 457 Catch-Up
Dollar Limitation of Section 5.02(b) hereunder. Once a Participant has to any extent utilized the catch-up
limitation of Section 5.02(b), his Normal Re. tirement Age may not be changed.
A Participant's alternate Normal Retirement Age may not be earlier than the earliest date that the Participant
will become eligible to retire and receive unreduced retirement benefits under the Employer's basic retire-
ment plan covering the Participant and may not be later than the date the Participant will attain age 70-1/2.
If a Participant continues employment after attaining age 70-1/2, not having previously elected alternate
Normal Retirement Age, the Participant's alternate Normal Retirement Age shall not be later than the
mandatory retirement age, if any, established by the Employer, or the age at which the Participant actually
has a Severance Event if the Employer has no mandatory retirement age. If the Participant will not become
eligible to receive benefits under a basic retirement plan maintained by the Employer, the Participant's
alternate Normal Retirement Age may not be earlier than age 55 and may not be later than age ,7'0-I/2.
2.16 Partidpanta Any Employee who has joined the Plan pursuant to the requirements of Article IV..
2.17 Percentage Limitation: Prior to January 1, 2002, the Percentage Limitation means 33 1/3 percent of
the participant's Includible Compensation for the taxable year, which will ordinarily be equivalent to the
lesser of the Dollar Limitation in effect for the taxable year or 25 percent of the Participant's Normal Com-
pensation. After December 31, 2001, the Percentage Limitation means 100 percent of the parricipant's
Indudible Compensation for the taxable year, which will ordinarily be equivalent to the lesser of the Dollar
Limitation in effect for the taxable year or 50 percent of the Participant's Normal Compensation.
2.18 PlanYear: The calendar year.
2.19 Retirement: The first date upon which both of the following shall have occurred with respect to a
participant: Severanc~e.=~vent and attainment of age 65.
2.20 Severance Event: Prior to January 1, 2002, severance of the Participant's employment with the Em-
ployer that constitutes a "separation from service" within the meaning of Section 402(e)(4)(D)(iii) of the
Code. After December 31, 2001, a Severance Event means a severance of the Participant's employment with
the Employer within the meaning of Section 457(d)(1)(A)(ii) of the Code.
In general, a Participant shall be deemed to have experienced a Severance Event for purposes of this Plan
when, in accordance with the established practices of the Employer, the employment relationship is consid-
ered to have actually terminated. In the case of a Participant who is an independent contractor of the Em-
ployer, a Severance Event shall be deemed to have occurred when the Participant's contract under which
services are performed has completely expired and terminated, there is no foreseeable possibility that the
Employer will renew the contract or enter into a new contract for the Participant's services, and it is not
anticipated that the Participant will become an Employee of the Employer, or such other events as may be
permitted under the Code.
2.21 Trust: The Trust created under Artide VI of the Plan which shall consist of all compensation deferred
under the Plan, plus any income and gains thereon, less any losses, expenses and distributions to Participants
and Beneficiaries.
Artide HI. ~dmlni~iration
3.01 Duties of the Employer:. The Employer shall have the authority to make all discretionary decisions
affecting the rights or benefits of Participants which may be required in the administration of this Plan. The
Employer's decisions shall be afforded the maximum deference permitted by applicable law.
3.02 Duties of Administrator: The Administrator, as agent for the Employer, shall perform
nondiscretionary administrative functions in connection with the Plan, including the maintenance of Par-
ticipants' Accounts, the provision of periodic reports of the status of each Account, and the disbursement of
benefits on behalf of the Employer in accordance with the provisions of this Plan.
Artlde IV.. participation in the Plan
4.01 Initial Parddpation: An Employee may become a Participant by entering into a Joinder Agreement
prior to the beginning of the calendar month in which the Joinder Agreement is to become effective to defer
compensation not yet earned, or such other date as may be permitted under the Code.
4.02 Amendment of Joinder Agreement: A Participant may amend an executed Joinder Agreement to
change the amount of Normal Compensation not yet earned which is to be deferred (including the reduc-
tion ofsueh future deferrals to zero). Such amendment shall become effective as of the beginning of the
calendar month commencing after the date the amendment is executed, or such oth~ date as may be per-
mitted under the Code. A Participant may at any time amend his or her Joinder Agreement to change the
designated Benefidary, and such amendment shall become effective immediately.
Article V. Limitations on Deferrals
5.01 Nomaal Limitation: Except as provided in Section 5.02, the maximum amount of Defetred Com-
pensation for any Participant for any taxable year, shall not exceed the lesser of the Dollar Limitation~or the
Percentage Limitation.
5.02 C~l. tdl-lJp l.lm~t~fiOllS:
(a) Catch-up Contributions for Participants Age 50 and Over: A Parddpant who has attained the
age of 50 before the dose of the Plan Year, and with respect to whom no other elective deferrals
may'be made to the Plan for the Plan Yeax by reason of the Normal Limitation of Section 5.01,
f~nay enter into a Joinder Agreement to make elective deferrals in addition to those permitted by
the Normal Limitation in an amount not to exceed the lesser of(l) the applicable dollar amount
as defined in Section 414(v)(2)(B) of the Code, as adjnsted for the cost-of-livingin accordance
with Section 414(v)(2)(C) of the Code, or (2) the excess (if any) of (i) the Participant's compen-
sation (as defined in Section 415(c)(3) of the Code) for the year, over (ii) any other elective
deferrals of the Participant for such year which are made without regard to this Section 5.02(a).
An additional contribution made pursuant to this Section 5.02(a) shall not, with respect to the
year in which the contribution is made, be subject to any othenvise applicable limitation con-
tained in Section 5.01 above, or be taken into account in applying such limitation to other
contributions or benefits under the Plan or any other plan. This Section 5.02(a) shall not apply
in any year to which Section 5.02(b) applies. The provisions of this Section 5.02(a) of the Plan
shall only apply on and after January 1, 2002.
4
(b). Last Three Years Catch-up Contribution: For each of the last three (3) taxable years for a Partici-
pant ending before his or her attainment of Normal Retirement Age, the maximuna amount of
Deferred Compensation shall be the lesser off (1) the 457 Catch-Up Dollar Limitation, or (2)
the sum of (i) the Normal Limitation for the taxable year, and (ii) the Normal Limitation for
each prior taxable year of the Participant commencing after 1978 less the amount of the Partici-
pant's Deferred Compensation for such prior taxable years. A prior taxable year shall be taken
into account under the preceding sentence only if (x) the Participant was eligible to participate in
the Plan for such yeas (or in any other eligible deferred compensation plan established under
Section 457(b) of the Code which is properly taken into account pursuant to regulations under
Section 457), and (y) compensation (if any) deferred under the Plan (or such other plan) was
subject to the Normal Limitation.
5.03 Other Plans: Notwithstanding any provision of the Plan to the contrary, th~ amount exdudible from
a Participant's gross income under this Plan or any other eligible deferred compensation plan under Section
457(b) of the Code shall not exceed the limits set forth in Sections 457(b) and 414(v) of the Code. Prior to
January 1, 2002, the limits under Section 457(b) of the Code described in the first sentence of this Section
5.03 shall be further reduced by any amount excluded from gross income under Sections 401 (k), 402(e)(3),
402(h)(1)(B), and 403(b) of the Code, or any amount with respect to which a deduction is allowable by
reason of a contribution to an organization described in Section 501(c)(18) of the Code.
ArfideVI. Trust and Investment of Accounts
6.01 Investment of Deferred Compensation: A Trust is hereby created to hold ail the assets of the Plan
for the exdusive benefit of Participants and Beneficiaries, except that expenses and taxes may be paid from
the Trust as provided in Section 6.03. The trustee shall be the Employer or such other person that agrees to
act in that capacity hereunder.
6.02 Investment Powers: The trustee or the Administrator, acting as agent for the trustee, shall have the
powers listed in this Section with respect to investment of Trust assets, except to the extent that the invest-
ment of Trust assets is directed by Participants, pursuant to Section 6.05.
(a)
To invest and reinvest the Trust without distinction between principal and income in common or
preferred stocks, shares of regulated investment companies and other mutual funds, bonds, loans,
notes, debentures, certificates of deposit, contracts with insurance companies induding but not
limited to insurance, individual or group annuity, deposit administration, guaranteed interest
contracts, and deposits at reasonable rates of interest at banking institutions including but not
limited to savings accounts and certificates of deposit. Assets of the Trust may be invested in
securities that involve a higher degree of risk than investments that have demonstrated their
investment performance over an extended period of time.
(b)
To invest and reinvest all or any part of the assets of the Trust in any common, collective or
commingled trust fund that is maintained by a bank or other institution and that is available to
Employee plans described under Sections 457 or 401 of the Code, or any successor provisions
thereto, and during the period of time that an investment through any such medium shall exist,
to the extent of partidpation of the Plans the dedararion of trust of such commonly collective, or
commingled trust fund shall constitute a part of this Plan.
· (c) To invest and reinvest all or any part of the assets of the Trust in any group annuity, deposit
administration or guaranteed interest contract issued by an insurance company or other financial
institution on a commingled or collective basis with the assets of any other 457 plan or trust
qualified under Section 401 (a) of the Code or any other plan described in Section 401 (a) (24) of
the Code, and such contract may be hdd or issued in the name of the Administrator, or such
custodian as the Administrator may appoint, as agent and nominee for the Employer. During
the period that an investment through any such contract shall exist, to the extent of participation
of the Plan, the terms and conditions of such contract shall constitute a part of the Plan.
(d) To hold cash awaiting investment and to keep such portion of the Trust in cash or cash balances,
without liability for interest, in such amounts as may from rime to time be deemed to be reason-
able and necessary to meet obligations under thesPian or otherwise to be in the best interests of
the Plan.
(e) To hold, to authorize the holding of, and to register any investment to the Trust in the name of
the Plan, the Employer, or any nominee or agent of any of the foregoing, including the Adminis-
trator, or in bearer form, to deposit or arrange for the deposit of securities in a qualified central
depository even though, when so deposited, such securities may be merged and held in bulk in
the name of the nominee of such depository with other securities deposited therein by any other
person, and to organize corporations or trusts under the laws of any jurisdiction for the purpose
of acquiring or holding tide to any property for the Trust, all with or without the addition of
words or other action to indicate that property is held in a fiduciary or representative capacity
but the books and records of the Plan shall at all times show that all such investments are part of
the Trust.
(f) Upon such terms as may be deemed advisable by the Employer or the Administrator, as the case
may be, for the protection of the interests of the Plan or for the preservation of the value of an
investment, to exercise and enforce by suit for legal or equitable remedies or by other action, or
to waive any right or claim on behalf of the Plan or any default in any obligation owing to the
Plan, to renew, extend the time for payment of, agree to a reduction in the rate of interest on, or
agree to any other modification or change in the terms of any obligation owing to the Plan, to
settle, compromise, adjust, or submit to arbitration any claim or right in favor of or against the
Plans to exercise and enforce any and all rights of foreclosure, bid for property in foreclosure, and
take a deed in lieu of foredosure with or without paying consideration therefor, to commence or
defend suits or other legal proceedings whenever any interest of the Plan requires it, and to
represent the Plan in all suits or legal proceedings in any court of law or equity or before any
body or tribunal.
(g) To employ suitable consultants, depositories, agents, and legal cotmsel on behalf of the Plan.
(h) To open and maintain any bank account or accounts in the name of the Plan, the Employer, or
any nominee or agent of the foregoing, induding the Administrator, in any bank or banks.
(i) To do any and all other acts that may be deemed necessary to carry out any of the powers set
forth herein.
6.03 Taxes and Expenses: All taxes of any and all kinds whatsoever that may be levied or assessed under
existing or future laws upon the Plan, or in respect to the Trust, or the income thereof, and all commissions
or acquisitions or dispositions of securities and similar expenses of investment and reinvestment of the Trust,
shall be paid from the Trust. Such reasonable'compensation of the Administrator, as may be agreed upon
from rime to time by the Employer and the Administrator, and reimbursement for reasonable expenses
incurred by the Administrator in performance of its duties hereunder (including but not limited to fees for
legal, accounting, investment and custodial services) shall also be paid from the Trust.
6.04 Payment of Benefits: The payment of benefits from the Trust in accordance with the terms of the
Plan may be made by the Administrator, or by any custodian or other person so authorized by the Employer
to make such disbursement. The Administrator, custodian or other person shall not be liable with respect to
any distribution of Trust assets made at the direction of the Employer.
6.05 Investment Funds: In accordance with uniform and nondiscriminatory rules established by the
Employer and the Administrator, the Participant may direct his or her Accounts to be invested in one (1) or
more investment funds available under the Plan; provided, however, that the Participant's investment direc-
tions shall not violate any investment restrictions established by the Employer. Neither the Employer, the
Administrator, nor any other person shall be liable for any losses incurred by virtue of following such direc-
tions or with any reasonable administrative delay in implementing such directions.
6.06 Valuation of Accounts: As of each Accounting Date, the Plan assets held in each investment fund
offered shall be valued at fair market value and the investment income and gains or losses for each fund shall
be determined. Such investment income and gains or losses shall be allocated proportionately among all
Account balances on a fund-by-fund basis. The allocation shall be in the proportion that each such Account
balance as of the immediately preceding Accounting Date bears to the total of all such Account balances as
of that Accounting Date. For purposes of this Article, all Account balances include the Account balances of
all Participants and Bene,~ciaries.
6.07 Participant Loan Accounts: Participant Loan Accounts shall be invested in accordance with Section
8.03 of the Plan. Such Accounts shall not share in any investment income and gains or losses of the invest-
ment funds described in Sections 6.05 and 6.06.
6.08 Crediting of Accounts: The Participant's Account shall reflect the amount and value of the invest-
ments or other property obtained by the Employer through the investment of the Participant's Deferred
Compensation pursuant to Sections 6.05 and 6.06. It is anticipated that the Employer's investments with
respect to a Participant will conform to the investment preference specified in the Participant's Joinder
Agreement, but nothing herein shall be construed to require the Employer to make any particular invest-
ment ora Participant's Deferred Compensation. Each Participant shall receive periodic reports, not less
frequendy than annually, showing the then current value of his or her Account.
6.09 Transfers:
(a) Incoming Transfers: A transfer may be accepted from an eligible deferred compensation plan
maintained by another employer and credited to a Participant's Account under the Plan if (i) the
Participant has had a Severance Event with that employer and become an Employee of the
Employer, 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 in accordance with Section 457(e)(10) of the Code, to confirm that such
plan is an eligible deferred compensation plan within the meaning of Section 457(b) of the
7
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 than cash, unless the Employer and the Administra-
tor agree to hold such other assets under the Plan.
Any such transferred amount shall not be treated as a deferral subject to the limitations of Artide
V, except that, for purposes of applying the limitations of Sections 5.01 and 5.02, an amount
deferred during any taxable year under the plan from which the transfer is accepted shall be
treated as if it has been deferred under this Plan during such taxable year and compensation paid
by the transferor employer shall be treated as if it had been paid by the Employer.
Outgoing Transfers: An amount may be transferred to an eligible deferred compensation plan .
maintained by another employer, and charged to a Participant's Account under this Plan, if(i)
the Participant has a Severance Event with the Employer and becomes an employee of the other
employer, (ii) the other employer's plan provides that such transfer will be accepted, and (iii) the
Participant and the employers have signed such agreements as are necessary to assure that the
Employer's liability to pay benefits to the Participant has been discharged and assumed by the
other employer. The Employer may require such documentation from the other 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(b) of the Code, and to assure that transfers are provided
for under such plan. Such transfers shall be made only under such circumstances as are permit-
ted under Section 457 of the Code and the regulations thereunder.
6.10 Eligible Rollover Distributions:
(a) Effective Date: This Section 6.10 is effective January 1, 2002.
(b)
Incoming Rollovers: An eligible rollover distribution may be accepted from an eligible retire-
ment plan maintained by another employer and credited to a Participant's Account under the
Plan. The Employer may require such documentation from the distributing plan as it deems
necessary to effectuate the rollover in accoMance with Section 402 of the Code and to confirm
that such plan is an eligible retirement plan within the meaning of Secrion 402(c)(8)(B) of the
Code. The Plan shall separately account for eligible rollover distributions from any eligible
retirement plan that is not an eligible deferred compensation plan described in Section 457(b) of
the Code maintained by an eligible governmental employer described in Section 457(e)(1)(A) of
Code.
Outgoing Rollovers: Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a distributee's election under this Section, a distributee may elect, at the time and
in the manner prescribed by the Administrator, to have any portion of an eligible rollover distri-
bution paid direcdy to an eligible retirement plan specified by the distributee in a direct rollover.
(d) Definitions:
(1) Eligible Rollover Distribution: An eligible rollover distribution is any distribution of
all or any portion of the balance to the credit of the distributee, except that an digible
rollover distribution does not indude: any distribution that is one of a series of sub-
stantially equal periodic payments (not less frequendy than annually) made for the life
(or life expectancy) of the disttibutee or the joint lives (or joint life expectancies) of the
distributee and the distri~utee!s designated beneficiary, or for a specified period of ten
years or more; any distribution to the extent such distribution is required under Sec-
tions 401(a)(9) and 457(d)(2) of the Code; and any distribution made as a result of an
unforeseeable emergerlcy of the employee. For purposes of distributions from other
eligible retirement plans rolled over into this Plan, the term eligible rollover distribu-
tion shall not indude the portion of any distribution that is not includible in gross
income (determined without regard to the exclusion ,for net unrealized appreciation
with respect to employer securities).
(2)
Higible Retirement Plan: An eligible retirement plan is an individual retirement
account described in Section 408(a) of the Code, an individual retirement annuity
described in Section 408(b) of the Code, an annuity plan described in Sections 403(a)
or 403(b) of the Code, a qualified trust described in Section 401(a) of the ~ode, or an
eligible deferred compensation plan described in section 457(b) of the~Co~e which is
maintained by an eligible governmental employer described in Section 457(e)(1)(A) of
the Code, that accepts the disttibutee's eligible rollover distribution.
(3)
Distributee: A ~tributee includes an employee or former employee. In addition, the
employee's or former emp!gyee's surviving spouse and the employee's or former em-
ployee's spouse or former spouse who is the alternate payee under a qualified domestic
relations order, as defined in Section 414(p) of the Code, are disttibutees with regard
to the interest of the spouse or former spouse.
(4) Direct Rotlover: A direct rollover is a payment by the plan to the eligible retirement
plan specified by the disttibutee.
6.11 Trmtee-to,Tru~?.~ Tr~,~fers to Purchase Permi~ive Service Credit: All or a portion of a Partici-
pant's Account may be'~sferred direcdy to the trustee of a defined benefit governmental plan (as defined
in Section 414(d) of the Code) if such transfer is (A) for the purchase of permissive service credit (as defined
in Section 415(n)(3)(A) of the Code) under such plan, or (B) a repayment to which Section 415 of the Code
does not apply by reason of subsection (k)(3) thereof, within the meaning of Section 457(e)(17) of the Code.
6.12 Treatment of Distributions of Amounts Previously Rolled Over From 401(a) and 4030a) Plans
and IRAs. For purposes of Section 72(0 of the Code, a distribution from this Plan shall be treated as a .,.
distribution from a qualified retirement plan described in Section 4974(c)(1) of the Code to the extent that
such distribution is attributable m an amount transferred to an eligible deferred compensation plan from a
qualified retirement plan (as defined in Section 4974(c) of the Code).
6.13 Deemed IR/~: Effective for Plan Years beginning after December 31, 2002, the Employer may elect
to allow Employees to make voluntary employee contributions to a separate account or annuity established
under the Plan that complies with the requirements of Code section 408(q) and any regulations promul-
gated thereunder. Such accounts or annuities shall meet the applicable requirements of Code secdons 408 or
408A and shall be treated as an individual retirement plan that is not part of the Plan.
6.14 Employer Liability: In no event shall the Employer's liability to pay benefits to a Participant under
this Plan exceed the value of the amounts credited to the Partidpant's Account; neither the Employer nor
the Administrator shall be liable for losses arising from depreciation or shrinkage in the value of any invest-
ments acquired under this Plan.
Article VII. Benefits
7.01 Retirement Benefits and Election on Severance Event:
General Rule: Except as otherwise provided in this Article VII, the distribution of a Participant's
Account shall commence as of a Participant's Automatic Distribution Date, and the distribution
of such benefits shall be made in accordance with one of the payment options described in
Section 7.02. Notwithstanding the foregoing, but subject to the following paragraphs of this
Section 7.01, the Participant may elect following a Severance Event to have the distribution of
benefits commence on a fixed determinable date other than that described in the preceding
sentence, but not later than April I of the year following the year of the Participant's Retirement
or attainment of age 70-1/2, whichever is later. Prior to January 1, 2002, an election made
pursuant to the preceding sentence shall not be valid unless such election is made not less than
30 days'prior to the date that the distribution of a Participant's Account would otherwise com-
mence.
(b)
Additional Delay in Distribution: Prior to January 1, 2002, the Participant may elect to defer
the commencement of distribution of benefits to a fixed determinable date later than the date
provided in Section 7.01 (a), but not later than April 1 of the year following the year of the
Participant's retirement or attainment of age 70 1/2, whichever is later, provided, however, that
(a) such election is made after the 61st day following the Participant's Severance Event and before
commencement of distributions, (b) the Participant may make only one (I) such election, and
(c) such election is made not less than 30 days prior to the date the distribution of a Participant's
Account would otherwise commence. On or after January 1, 2002, the Participant's right to
change his or her election with respect to commencement of the distribution of benefits shall not
be restrained by this Section 7.01. Notwithstanding the foregoing, the Administrator, in order
to ensure the orderly administration of this provision, may establish a deadline after which such
election to defer the commencement of distribution of benefits shall not be allowed.
(c)
Loans: Notwithstanding the foregoing provisions of this Section 7.01, no election to defer the
commencement of benefits after a Severance Event shall operate to defer the distribution of any
amount in the Participant's Loan Account in the event of a default of the Participant's loan.
7.02 Payment Options: As provided in Sections 7.01, 7.04 and 7.05, a Participant may elect to have
value of the Participant's Account distributed in accordance with one of the following payment options,
provided that such option is consistent with the limitations set forth in Section 7.03.
(a) Equal monthly, quarterly, semi-annual or annual payments in an amount chosen by the Partici-
pant, continuing undl his or her Account is exhausted;
(b) One lump-sum payment;
(c) Approximately equal monthly, quarterly, semi-annual or annual payments, calculated to con-
tinue for a period certain chosen by the Participant.
(d) Annual Payments equal to the minimum distributions required under Section 401(a)(9) of the
Code, including the incidental death benefit requirements of Section 401 (a)(9)(G), over the life
expectancy of the Participant or over the life expectancies of the Participant and his or her
Beneficiary.
10
(e) Payments equal m payments made by the issuer ora retirement annuity policy acquired by the
Employer.
(0
A split distribution under whicl~ payments under options (a), (b), (c) or (e) commence or are
made at the same time, as elected by the Participant under Section 7.01, provided that all
payments commence (or are made) by the latest benefit commencement date under Section
7.01.
(g) Any other payment option elected by the Participant and agreed to by the Employer and Ad-
ministrator.
A Participant's selection of a payment option made after December 31, 1995, under Subsections (a), (c), or
(g) above may include the sel~on of an automatic annual cost-of-living increase. Such increase~ill be
based on the rise in the Consumer Price Index for All Urban Consumers (CPI-U) from the tl~ird quarter of
the last year in which a cost-of-living increase was provided to the third quarter oftbe current year. Any
increase will be made in periodic payment checks beginning the following January.
If, prior to January 1, 2002, a ParticiPant made a timely election of a payment date but failed to specify a
payment option or failed to make a timely election of both payment date and option, and as a result, was
defaulted to benefit commencement at age 65, or such other date as the Participant may have specified,
benefits shall be paid annually in the amount of $100 per year commencing at age 65 or the date specified
by the Participant until the Partidpant reaches age 70-1/2. When the Participant reaches age 70-1/2,
payments shall be made in accordance with Code section 401(a)(9) and the regulations thereunder.
7.03 Limitation on Options: No payment option may be selected by a Participant under subsections
7.02(a) or (c) unless the amount of any installment is not less than $100. No payment option may be
selected by a Participan~4ander Sections 7.02, 7.04, or 7.05 unless it satisfies the requirements of Sections
401 (a)(9) and 457(d) (2)'0f the Code, including that payments commencing before the death of the Partici-
pant shall satisfy the inddental death benefit requirements under Section 401 (a)(9)(G).
7.04 Post-Retirement Death Benefits:
Should the Participant die after he/she has begun to receive benefits under a payment option, the
remaining payments, if any, under the payment option shall continue until the Administrator
receives notice of the Participant's death. Upon notification of the Participant's death, benefits
shall be payable to the Participant's Beneficiary commencing not later than December 31 of the
year following the year of the Participant's death, provided that the Beneficiary may elect to
begin benefits earlier than that date.
If the Beneficiary has not attained age 80 at the time payments commence, he o~ she may elect to
receive payments in a single lump-sum payment or in equal or approximately equal monthly,
quarterly, semi-annual or annual payments continuing over a period not to exceed ten years from
the first payment. The Beneficiary also may elect to receive a partial lump-sum payment fol-
lowed by monthly, quarterly, semi-annual or annual installments, provided that all payments are
made within a period often years from the initial payment. In the event that the Beneficiary is
age 80 or over, the remaining balance in the Participant's account will be paid to the Beneficiary
in a single lump sum.
11
(c) In the event that the Beneficiary dies before the payment of death benefits has commenced or
been completed, the remaining value of the Participant's Account shall be paid to the estate of
the Beneficiary in a Imp sum. In the event that the Participant's estate is the Beneficiary,
payment shall be made to the estate in a lump sum.
7.05 Pre-Retirement Death Benefits:
(a)
Should the Participant die before he or she has begun to receive the benefits provided by Section
7.01, the value of the Participant's Account shall be payable to the Beneficiary commencing not
later than December 31 of the year following the year of the Participant's death, provided that
the Beneficiary may elect to begin benefits earlier than that date.
If the Beneficiary has not attained age 80 at the rime payments commence, he or she may dect to
receive payments in a single lump~-sum payment or in equal or approximately equal monthly,
quarterly, semi-annual or annual payments continuing over a period not to exceed ten years from
the first payment. The Beneficiary also may elect to receive a partial lump-sum payment
followed by monthly, quarterly, semi-annual or annual installments, provided that all payments
are made within a period often years from the initial payment. In the event that the Beneficiary
is age 80 or over, the remaining balance in the Participant's account will be paid to the
Beneficiary in a single lump sum.
(c)
In the event that the Beneficiary dies before the payment of death benefits has commenced or
been completed, the remaining value of the Participant's Account shall be paid to the estate of
the Beneficiary in a lump sum. In the event that the Participant's estate is the Beneficiary,
payment shall be made to the estate in a lump sum.
7.06 Unforeseeable Emergencies:
(a)
In the event an unforeseeable emergency occurs, a Participant may apply to the Employer to
receive that part of the value of his or her Account that is reasonably needed to satisfy the emer-
gency need. If such an application is approved by the Employer, the Participant shall be paid
only such amount as the Employer deems necessary to meet the emergency need, but payment
shall not be made to the extent that the financial hardship may be relieved through cessation of
deferral under the Plan, insurance or other reimbursement, or liquidation of other assets to the
extent such liquidation would not itself cause severe financial hardship.
(b)
An unforeseeable emergency shah be deemed to involve only circumstances of severe financial
hardship to the Participant resulting from a sudden unexpected illness, accident, or disability of
the Participant or of a dependent (as defined in Section 152(a) of the Code) of the Participant,
loss of the Participant's property due to casualty, or other similar and extraordinary unforeseeable
circumstances arising as a result of evenrs beyond the control of the Participant. The need to
send a Participant's child to college or to purchase a new home shall not be considered unforesee-
able emergencies. The determination as to whether such an unforeseeable emergency exists shall
be based on the merits of each individual case.
7.07 De M'inlmi~ Accounts: Notwithstanding the foregoing provisions of this Article, prior to January 1,
2002, if the value of a Participant's Account does not exceed the dollar limit under Section 41 l(a)(11)(A) of
the Code as described in Section 457(e)(9)(A) of the Code and (a) no amount has been deferred under the
12
Plan with respect rathe Particip~,mt. dufing the,2-year ~eri~eniling on the date of the distribud0n and (b)
there has been no pi-lot diitribnti0n under the Plan to the Participant pursuant to this Section 7.07, the
Participant may elect m receive or th~ Emp,t0yer may invol~tatily distribute the PartiCipant's entire Account
without the consent of the Participant. Such distribution shall be made in a lump sum.
On or after January 1, 2002, if. the value of a Participant's Account is less than $1,000, the Participant's
Account shall be paid to the PartiCipant ina single l~p sum ~'tribution, provided that (a) no amount has
been deferred Under the :Plan with ~peCt to the Pmi~ip~t during the 2-year period ending on the date of
the distribution and (b) there has been no prior distribution under the Plan to the Participant pursuant to
this Section 7.07. ' '
If the value of the Parttc~pant s Account ~s at least $1,000 but not more than the dollar
limit under Code Secdon 41 t (a) (t 1 ) (A) and (a) no amount has been deferred under the Plan with respect to
the Participant during the 2-year period ending on the date of the distribution and (b) there has been no
prior distd:bution under the Plan to the participant pursuant to this SectiOn 7.07, the Participan~t may elect
to receive his or her entire Account. Such distribution shall be made in a lump sum. ~
8.01
Article VIII. Loans to Participants
Avar'labilhy of Loa.,~ to Partlclp~tt~.
(a)
The Employer may elect to make loans available to Participants in this Plan. If the Employer has
elected to make loans available to Participants, a Participant may apply for a loan from the Plan
subject to the limitations arm Other provisions of this Article.
(b)
The Employer shall'establi~ written' guidelines governing the granting of loans, provided that
such guidelines are app~0ved by tF)e Administrator and are not inconsistent with the provisions
of this Article, and that loans are made available to all Participants on a reasonably equivalent
basis.
8.02 Terms and Conditions o~Loans to PartlciWants:-
Any'loan by the Plan to a Participant under Section 8.01 of the Plan shall satisfy the following requirements:
(a) Availability. Loans shall be ma&available t° all Participants on a reasonably equivaleht basis.
(b) Interest Rate. Loans must be adequately secured and bear a reasonable interest rate.
(c) Loan Limit. No Participant loan shall exceed the present value of the Participant's Account.
(d)
Foreclosure. In the event ofdefatflt on any installment payment, the outstanding balance of the
loan shall be a deemed distribution. ~n such event, an actual distribution of a plan loan offset
amount will not occur until a distributable event occurs in the Plan.
(e)
Reduction of Account. Notwithstanding any other provision of this Plan, the portion of the
Participant's Account balance used as a security interest held by the Plan by reason of a loan
outstanding to the Participant shall be taken into account for purposes of determining the
amount of the Account balance payable at the time of death or distribution, but only if the
reduction is used as repayment of the loan.
13
(f) Amount of Loan. At the time the loan is made, the principal amount of the loan plus the out-
standing balance (principal plus accrued interest) due on any other outstanding loans to the
Participant from the Plan and from all other plans of the Employer that are qualified employer
plans under Secdon 72(p)(4) of the Code shall not exceed the lesser of:
(I) $50,000, reduced by the excess (if any) of
(a) The highest outstanding balance of loans from the Plan during the one (1) year
period ending on the day before the date on which the loan is made, over
(b) The outstanding balance of loans from the Plan on the date on which such loan
is made; or
(2) One-half of the value of thc Participant's interest in all of his or her Accounts under this
Plan.
(g) Application for Loan. The Participant must give the Employer adequate written notice, as
determined by the Employer, of the amount and desired time for receiving a loan. No more than
one (1) loan may be made by the Plan to a Participant's in any calendar year. No loan shall be
approved if an existing loan from the Plan to the Participant is in default to any extent.
(h) Length of Loan. Any loan issued shall require the Participant m repay the loan in substantially
equal installments of principal and interest, at least month135 over a period that does not exceed
five (5) years from the date of the loan; provided, however, that if the proceeds of the loan are
applied by the Participant to acquire any dwelling unit that is to be used within a reasonable time
(determined at the time of the loan is made) after the loan is made as the principal residence of
the Participant, the five (5) year limit shall not apply. In this event, the period of repayment shall
not exceed a reasonable period determined by the Employer. Principal installments and interest
payments otherwise due may be suspended for up to one (1) year during an authorized leave of
absence, if the promissory note so provides, but not beyond the original term permitted under
this subsection (h), with a revised payment schedule (within such term) instituted at the end of
such period of suspension.
(i) Prepayment. The Participant shall be permitted m repay the loan in whole or in part at any time
prior to maturity, without penalty.
(j) Promissory Note. The loan shall be evidenced by a promissory note executed by the Participant
and delivered to the Employer, and shall bear interest at a reasonable rate determined by the
Employer.
(k) Security. The loan shall be secured by an assignment of the participant's right, title and interest
in and to bis or her Account.
(t) Assignment or Pledge. For the purposes of paragraphs (f) and (g), assignment or pledge of any
portion of the Participant's interest in the Plan and a loan, pledge, or assignment with respect to
any insurance contract purchased under the Plan, will he treated as a loan.
14
(m)
for
Other Terms and Conditions. The Employer shall fix such other terms and conditions of the
loan as it deems necessary to comply with legal requirements, to maintain the qualification of
the Plan and Trust under Section 457 of the Code, or to prevent the treatment of the loan
tax purposes as a distribution to the Participant.
The Employer, in its discretion for any reason, may also fix other terms and conditions of the loan, includ-
ing, but not limited to, the provision of grace periods following an event of default, not inconsistent with the
provisions of this Article and Section 72(p) of the Code, and any applicable regulations thereunder.
8.023 Participant Loan Accounts:
(a)
Upon approval of a loan to a Participant by the Employer, an amount not in excess of the loan
shall be transferred from the Participant's other investment fund(s), described in Secoon 6.05 of
the Plan, to the Participant's Loan Account as of the Accounting Date immediat~ely ~receding
the agreed upon date on which the loan is to be made.
(b)
The assets of a Participant's Loan Account maybe invested and reinvested only in promissory
notes received by the Plan from the Participant as consideration for a loan permitted by Section
8.01 of the Plan or in cash. Uninvested cash balances in a Participant's LOan Account shall not
bear interest. Neither the Employer, the Administrator, nor any other person shall be liable for
any loss, or by reason of any breach, that results from the Participant's exercise of such control.
(c) Repayment of principal and payment of interest shall be made by payroll deduction or, where
repayment cannot be made by payroll deduction, by check, and shall be invested in one (1) or
more other investment funds, in accordance with Section 6.05 of the Plan, as of the next Ac-
counting Date after payment thereof to the Trnsc The amount so invested shall be deducted
from the Participant's LoAn Account.
(d) The Employer shall have the authority to establish other reasonable rules, not inconsistent with
the provisions of the Plan, governing the establishment and maintenance of Participant LOan
Accounts.
A_rtide IX. Non-Assignability
9.01 Ia General: Except as provided in Article VIII and Section 9.02, no Partidpant'or Beneficiary shall
have any right to commute, sell, assign, pledge, transfer or otherwise convey or encumber the right to receive
any payments hereunder, which payments and rights are expressly declared to be non-assignable and non-
transferable.
9.02 Domestic Relations Orders:
(a)
Allowance of Transfers: To the extent required under a final judgment, decree, or order (indud-
ing approval ora property settlement agreement) that (i) relates to the provision of child support,
alimony payments, or marital property rights and (ii) is made pursuant to a state domestic
relations law, any portion of a Participant's Account may be paid or set aside for payment to a
spouse, former spouse, child, or other dependent of the Participant. Where necessary to carry
out the terms of such an order, a separate Account shall be established with respect to the spouse,
former spouse, or child who shall be entitled to make investment selections with respect thereto
in the same manner as the Participant; any amount so set aside for a spouse, former spouse, or
child shall be paid out in a lump sum at the earliest date that benefits may be paid to the Partici-
pant, unless the order directs a different time or form of payment. Nothing in this Section shall
be construed to authorize any amount to be distributed under the Plan at a time or in a form
that is not permitted under Section 457(b) of the Code. Any payment made to a person pursu-
ant to this Section shall be reduced by any required income tax withholding.
(b)
Release from Liability to Participant: The Employer's liability to pay benefits to a Participant
shall be reduced to the extent that amounts have been paid or set aside for payment to a spouse,
former spouse, or child pursuant to paragraph (a) of the Section. No such transfer shall be
effectuated unless the Employer or Administrator has been provided with satisfactory evidence
that the Employer and the Administrator are released from any further claim by the Participant
with respect to such amounts. Thi Participant shall be deemed to have released the Employer
and the Administrator from any claim with respect to such amounts, in any case in which (i) the
Employer or Administrator has been served with legal process or otherwise joined in a proceed-
ing relating m such transfer, (ii) the Participant has been notified of the pendency of such pro-
ceeding in the manner prescribed by the law of the jurisdiction in which the proceeding is pend-
ing for service of process in such action or by mail from the Employer or Administrator to the
Participant's last known mailing address, and (iii) the Participant fails to obtain an order of the
court in the proceeding relieving the Employer or Administrator from the obligation to comply
with the judgment, decree, or order.
(c)
Participation in Legal Proceedings: The Employer and Administrator shall not be obligated to
defend against or set aside any judgement, decree, or order described in paragraph (a) or any
legal order relating to the garnishment of a Participant's benefits, unless the full expense of such
legal action is borne by the Participant. In the event that the Participant's action (or inaction)
nonetheless causes the Employer or Administrator to incur such expense, the amount of the
expense may be charged against the Participant's Account and thereby reduce the Employer's
obligation to pay benefits to the Participant. In the course of any proceeding relating to divorce,
separation, or child support, the Employer and Administrator shall be authorized to disclose
information relating to the Participant's Account to the Participant's spouse, former spouse,
dependent, or child (induding the legal representatives of the spouse, former spouse, or child), or
tO a COUFE.
Article X. Relationship to other Plans and Employment Agreements
This Plan serves in addition to any other retirement, pension, or benefit plan or system presendy in existence
or hereinafter established for the benefit of the Employer's employees, and participation hereunder shall not
affect benefits receivable under any such plan or system. Nothing contained in this Plan shall be deemed to
constitute an employment contract or agreement between any Partidpant and the Employer or to give any
Participant the fight to be retained in the employ of the Employer. Nor shall anything herein be construed
to modify the terms of any employment contract or agreement between a Participant and the Employer.
16
Article XI. Amendment or Termln~tion of Plan
The Employer may at any time amend this Plan provided that it transmits such amendment in writing to
the Administrator at least 30 days prior to th~ effective date of the amendment. The consent of the Admin-
istrator 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 ~me terminate this Plan.
The Administrator maYat an~ rime prOpose an amendment tothe Plan by an instrument in writing trans-
mitted to the Employer at least 30 days before the effective date ofthe amendment. Such amendment shall
become effective unless, within such 30-day period, the Employer notifies the Administrator in writing that
it disapproves such amendment, in which case such amendment shall nol become effective. In the event of
such disapproval, the Administrator shall be under no obligation to continue acting as Administrator here-
under.
Except as may be required to maintain the status of the Plan as an digible deferred compensation plan under
Section 457(b) of the Code or to comply with other applicable laws, no amendment or termination of the
Plan shall divest any Participant of any rights with respect to compensation deferred before the date of the
amendment or termination.
Article XH. Applicable Law
This Plan and Trust shall be construed under the laws of the state where the Employer is located and is
established with the intent that it meet the requirements of an "eligible deferred compensation plan" under
Section 457(b) of the Code, as amended. The provisions of this Plan and Trust shall be interpreted wherever
possible in conformity with the requirements of that Section of the Code.
In addition, notwithstanding any provision of the Plan to the contrary, the Plan shall be administered in
compliance with the requirements of Code Section 414(u).
Article XIII. Gender and Number
The masculine pronoun, whenever used herein, shall indude the feminine pronoun, and the singular shall
include the plural, except where the context requires otherwise.
17
18
ICMA RETIREMENT CORPORATION
DECLARATION
OF TRUST
ICMA RETIREMENT CORPORATION
The public service Vantagepoint® since 1972
DECLARATION OF TRUST
This Declaration of Trust (the "Group Trust Agreement") is made as of the 19th day of May, 2001, by
VantageTrust Company, which declares itself to be the sole Trustee of the trust hereby created.
WHEREAS, the ICMA Retirement Trust was created as a vehicle for the commingling of the assets of
governmental plans and governmen ~tal units described in Section 818(a)(6) of the Internal Revenue Code of
1986, as amended, pursuant to a Dedaration of Trust dated October 4, 1982; as subsequendy amended, a
copy of which is attached hereto and incorporated by reference as set out below (the "tCMA Declaration");
and
WHEREAS, the trust created hereunder (th.e "Group Trust") is intended to meet the requirements of Rev-
enue Ruling 81-100, 1981-1 C.B. 326, and is established as a common trust fund within the meaning of
Section 391:1 of Title 35 of the New Hampshire Revised Statutes Annotated, to accept and hold for invest-
ment purposes the assets of the Deferred Compensation and Qualified Plans held by and through the ICMA
Retirement Trust.
NOW, THEREFORE, the Group Trust is created by the execution of this Declaration of Trust by the
Trustee and is established with respect to each Deferred Compensation and Qualified Plan by the transfer to
the Trustee of such Plan's assets in the ICMA Retirement Trust, by the Trustees thereof, in accord with the
following provisions:
Incorporation of ICMA Declaration by Reference; ICMA By-Laws. Except as otherwise
provided in this Group Trust Agreement, and to the extent not inconsistent herewith, all provi-
sions of the ICMA Dedaration are incorporated herein by reference and made a part hereof, to
be read by substituting the Group Trust for the Retirement Trust and the Trustee for the Board of
Trustees referenced therein. In this respect, unless the context clearly indicates otherwise, all
capitalized terms used herein and defined in the ICMA Declaration have the meanings assigned
to them in the ICMA Declaration. In addition, the By-Laws of the ICMA Retirement Trust, as
the same may be amended from time-to-time, are adopted as the By-Laws of the Group Trust to
the extent not inconsistent with the terms of this Group Trust Agreement.
Notwithstanding the foregoing, the terms of the ICMA Declaration and By-Laws are further
modified with respect to the Group Trust created hereunder, as follows:
(a) any reporting, distribution, or other obligation of the Group Trust vis-i-vis any
Deferred Compensation Plan, Qualified Plan, Public Employer, Public Employer
Trustee, or Employer Trust shall be deemed satisfied to the extent that such
obligation is undertaken by the ICMA Retirement Trust (in which case the obligation
of the Group Trust shall run to the ICMA Retirement Trust); and
(b) all provisions dealing with the number, qualification, election, term and nomination
of Trustees shall not apply, and all other provisions relating to trustees (including, but
not limited to, resignation and removal) shall be interpreted in a manner consistent
with the appointment of a single corporate trustee.
20
2. Compliance with Reeenne Proced~zre 81-100. The requirements of Revenue Procedure 81-
100 are applicable to the Group Trust as follows:
(a) Pursuant to the termi~of this Group Trust Agreement and Article X of the By-Laws,
investment in the Group Trust is limited to assets of Deferred Compensation and
Qualified Plans, investing through the lC/viA Retirement Trust.
(b) Pursuant to the By-Laws, the Group Trust is adopted as a part of each Qualified Plan
that invests herein through the ICMA Retirement Trust.
(c) In accord with the By-Laws, that part of the Group Trust's corpus or income which
equitably belongs to any Deferred Compensation and Qualified Plan may not be
used for or diverted to any purposes other than for the exclusive benefit of the Plan's
employees or their beneficiaries who are entided to benefits under such Plan.
(d) In accord with the By-Laws, no Deferred Compensation Plan or Qualified Plan may
assign any or part of its equity or interest in the Group Trust, and any purported
assignment of such equity or interest shall be void.
Govemlng Law. Except as otherwise required by federal, state or local law, this Declaration of
Trust (including the ICMA Declaration to the extent incorporated herein) and the Group Trust
created hereunder shall be construed and determined in accordance with applicable laws of the
State of New Hampshire.
4. Judicial Proceedings. The Trustee may at any time initiate an action or proceeding in the appro-
priate state or federal courts within or outside the state of New Hampshire for the settlement of
its accounts or for the determination of any question of construction which may arise or for
instructions.
l~l ~TNESS WHEREOF, the Trustee has executed this Declaration of Trust as of the day and year first
above written.
VANTAGETRUST COMPANY
Name: Paul E Gallagher
Tide: Assistant Secretary
777 North Capitol Street, NE
Washington. DC 20002-4240
FAX 1-202-962.4601
Toll Free 1-800-869-7400
Intemet: http://www.h:marc.org
November 2003
Dear Employer:
The ICMA Retirement Corporation (ICMA-RC) is providing you this package of marerials to help you implement the final regulations
governing Section 457 deferred compensation plans that were recently issued by the Internal Revenue Service. In most cases, these provi-
sions are effective retroactivdy to January 1, 2002, as specified by the regulations.* For the vast majority of ICMA-RC's participating
employers, no formal action will be required and these new 457 plan provisions will automatically be implemented.
As your 457 deferred compensation plan provider, ICMA-RC will take care of the majority of additional administrative tasks associated
with the recently finalized regulations, to the extent this is feasible. This will indude updating forms, brochures, and our VanragelAnk
website. Included in this package is the new ICMA-RC 457 deferred compensation plan document. We have designed the plan to be the
most flexible allowed under ~e law.
ICMA-RC is using a "negative election" process for adoption of the regulatory changes. Under this process, you are given 30 business days
from the date this packet was mailed to review the materials in the packet - including the ICMA-RC model deferred compensation plan
document.
If you decide to use the ICMA-RC model deferred compensation plan document you will not have to notify ICMA-RC, and the
I
changes will be considered automatically adopted into your plan 30 days from the postmark date on this packet. ]
I
Note: If you wish to make changes to an aspect of your 457 plan that cannot be accommodated by this Section 457 Regulatory Implemen-
radon Packet, for example, by adding a loan provision, please contact Employer Services at 1-800-326-7272.
ICMA-RC also used a negative dection process for the amendment of our 457 plan document following the enactment of the Economic
Growth and Tax Relief Reconciliation Act of 2001 (~EGTRRA"). Over ninety-five percent of our 457 employers were able to use the
negative election, did not have to notify ICMA-RC, and the EGTRRA law changes were automatically implemented in their 457 plans. A
similar result is expected with the implementation of the 457 regulations.
will
ICMA-RC model
perform an o
outlined bdow:
If you do not plan m adopt the
r ICMA-RC and forward a copy of your revised plan document to us. ICMA-RC will
t to ensure that We~ administer your plan in accordance with your intentions. See
~ take advantage of I CMA-RC's easy plan adoption process, you
time.
, we suggest you follow the three-step process
plan document.
.'gularions must change before the federal
· state or local restrictions on the adoption of the recendy
(continued on back)
member NASD/$1PC.
777 North Capitol Street, NE
Washington. DC Z0~2-4240
tAX 1-202-962-4601
Tell Fr~e 1-800-669-7400
En Espa~ol Ilame al 1-800-689qi216
Intomst: htt p://w~w.icmarc.org
November 200~
De~r Employer:
The ICMA Retirement Corporation (ICMA-RC) is providing you this package of materials to help you implement the final regulations
governing Section 457 deferred compensation plans that were recently issued by the Internal Revenue Service. In most cases, these provi-
sions are effective retroactively to January 1, 2002, as specified by the regulations.* For the vast majority of ICMA-RC's participating
employers, no formal action will be required and these new 457 plan provisions will automatically be implemented.
As your 457 deferred compensation plan provider, ICMA-RC will take care of the majority of additional administrative tasks associated
with the recently finalized regulations, to the extent this is feasible. This will include updating forms, brochures, and our VantageLink
website. Induded in this package is the new ICMA-RC 457 deferred compensation plan document. We have designed the plan to be the
most flexible allowed under tl3e law.
ICMA-RC is using a "negative election" process for adoption of the regulatory changes. Under this process, you are given 30 business days
bom the date this packet was mailed to review the materials in the packet - including the ICMA-RC model deferred compensation plan
document.
If you decide to use the ICMA-RC model deferred compensation plan document you will not have to nodfy ICMA-RC, and the
changes will be considered automatically adopted into your plan 30 days from the postmark date on this packet.
Note:. If you wish to make changes to an aspect of your 457 plan that cannot be accommodated by this Section 457 Regulatory Implemen-
tation Packet, for example, by adding a loan provision, please contact Employer Services at 1-800-326-7272.
ICMA-RC also used a negative election process for the amendment of our 457 plan document following the enactment of the Economic
Growth and Tax Relief Reconciliation Act of 2001 ("EGTRRA"). Over ninety-five percent of our 457 employers were able m use the
negative election, did not have to noti~, ICMA-RC, and the EGTRRA law changes were automatically implemented in their 457 plans. A
similar result is expected with the implementation of the 457 regulations.
If you do not plan to adopt the
ICMA-RC model ~ ICMA-RC ~d forward a copy of your revised plan document to us. ICMA-RC will
t to ensure that~~ administer your plan in accordance with your intentions. See
Attachment take advantage of ICMA-RC's easy plan adoption process, you
m~. his time.
To determine what a , we suggest you follow the three-step pmcess
outlined bdow:
Step
.'guladons must change before the federal
: or local restrictions on the adoption of the recendy
of information regarding your jurisdiction's
(continued on back)
[(3MA
r affiliate of ICMA-RC, member NASD/SIPC.
Step 3: Determine whether any formal action is required to amend your plan to implement thc 457 regulations, depending upon
the procedures you must follow. If you adopt the ICMA-RC model document, you will not need to notify us.
In addition to'the plan document, tCMA-RC has developed additional materials to assist you in implementing the changes under the new
reguladous. This material is enclosed and contains information that you can use for your internal review of how the new rules will impact
your plan and your employees. (See Table of Contents.) Again, note that no notification to ICMA-RC is required if you adopt our
model document.
For your convenience, a postage-paid return envelope is endosed for any documents you need to return to ICMA-RC.
We believe that this comprehensive package will addres~ the vast majority of questions associated with implementing the regulations and
put you in a favorable position to adopt the new provisions.
ICMA-RC's Employer Services Unit is always available to speak to you about your specific concerns. Please call us at 1-800-326-7272.
Sincerd~
Jerry Backemtoe
Vice President
Investor Services
Howeven, )$r taxable years be~nning after December 3 L 2001 and bq~re January L 2004, a plan will not fail to be an eh~ible plan if it is operated in
accordance with a remonable, good~ith interpretation of lnternal Revenue Code Section 457(b).
TABLE OF CON'i'~fS
Pag~
/tt~¢hment A
An overview of the recently finalized 457 regulations, a reference to the appropriate ICMA-RC plan
document section, the purpose of the provision, and a summary of additional administrative tasks you
can expect as a result of the new regulations ........................................................................................................ 5
Ait-thm~t B
An analysis of the suggested implementation steps required to adopt the 457 regulatory changes ........................ 15
~k~chment C
An easy-to-follow chart to help guide you to the correct action if formal action is required for adoption
of the revised plan document. Suggested resolutions and suggested affirmative statements of plan
amendment are included, which you can use if formal action is required .............................................. 17
Atxadunent D
A response form for employers opting either to use the ICMA-RC model plan document with modifications
or their own individually designed plan document .............................................................................................. 27
~0
6
lO
11
12
13
14
ATTACHMENT B:
457 REGULATORY CHANGES
SUGGESTED IMPLEMENTATION STEPS
The~llawing three steps can be ~llowed to simpli~ your implementation of the 457 regulatory changes.
Step 1: Review the new ICMA-RC 457 model deferred compensation plan document. (See accompanying booklet.)
If you currendy use the ICMA-RC Section 457 deferred compensation plan document, you will find the language necessary for you to
adopt the 457 regulations already incorporated in the amended plan document. Using the ICMA-RC plan document will make your
implementation of the regulations straightforward.
If you do not use the 457 plan document, but use your own plan document, please refer to Attachment D for instructions and additional
information.
ICMA-RC will submit the revised 457 model plan document to the Internal Revenue Service (IRS) through a participating employer, to
obtain a private letter ruling. ICMA-RC will be operating under the new "interim" plan document until the private letter ealing is
obtained. This will ensure that you and your participants can take immediate advantage of the 457 regulations.
Normally, ICMA-RC would not begin operating under a 457 plan document until a favorable ptivare letter ruling is received from the IRS,
which could take as long as a year. However, because the existing plan document generally was amended simply to conform to the new 457
regulations, ICMA-RC is comfortable operating under this amended plan document. ICMA-RC will inform you when the private letter
ruling is obtained.
Step 2: Consult with legal counsel to determine whether any state or local laws or regulations must change before the federal section
457 reguhxfions may be adopted. [This step will not apply for the majority of employers.]
While ICMA-RC is not aware of any state statutes, regulations or local ordinances that conflict with the provisions of the recendy finalized
457 regulations, you may want to consult your legal counsel. He or she may wish to review the state or local government's laws or regula-
tions governing your deferred compensation plan.
If you are an employer with a state and/or local law issue, a sample resolution and statement of affirmative action are provided for your use,
if required (see Attachment C). These documents were prepared to allow you to adopt the 457 regulations now, pending enactment of any
required state or local statutory or regulatory amendments permitting the changes. See Step 3 below for further information.
Step 3: Determine whether formal action is required to amend your plan to implement the 457 regulations, depending upon the
procedures you must follow. If you adopt the ICMA-RC 457 model deferred compensation plan document, you will not need to notify
ICMA-RC.
Under the provisions of ICMA-RC's prior 457 plan document (Article XI), the amendments contained in the new revised plan document
are deemed to be adopted by you unless you notify ICMA-RC within 30 days of the postmark date on this plan implementation package.
In this situation, the changes are considered implemented ~utomatically and employers do not need to notify ICMA-RC. Please retain the
new plan document as well as a copy of the previous plan document.
Employers that wish to either revise the ICMA-RC model plan document or use an individually designed plan document should refer to
Attachment D for instructions and information. However, you may wish to consult with legal counsel to determine if formal employer
action is necessary. Some state or local statutes may require the passage of a council resolution. Others may simply require an affirmative
statement of plan amendment. Attachment C contains two suggested resolutions and two suggested affirmative statements of plan amend-
ment to accommodate your particular situation. Note that if you intend to adopt the ICMA-RC 457 model deferred compensation plan
document, you do not need to provide ICMA-RC with a copy of your resolution or affirmative statement. These documents are for your
internal records only.
The following chart (Attachment C) will assist you in determining the appropriate formal action, if any, necessary to adopt changes to your
457 plan. If, afrer reading the chart, you have any questions about implementing the regulatory changes or the plan amendment process,
please call our Employer Services Unit at 1-800-326-7272.
15
ATTACHMF2qT C:
RECOMMENDED ACTIONS
FOR AMENDING YOUR 457 PLAN
Are you adopting the
ICMA-RC model
457 plan docttment?
Yes
Yes
Do you have any state
and/or local laws that
conflict with the
457 regulatory' changes?
No
No
No
What formal action are
you required to take
by state or local law
to amend your 457 plan?
None
At~.rmative statement
of amendment
Passage of council
resolution
Action
Recommended
Execute Al~.rmative Statement A
(Attachment C1) for your files
only. *
Execute Resolution A (Attachment
C2) for your files only.*
If you have any questions about implementing the 457 regulatory changes or the plan amendment process, please call ICMA-RC's Em-
ployer Services Unit at 1-800-326-7272.
* Your plan will be considered adopted 30 days from the postmark date on this packet.
17
18
ATTACHMF~NT CI:
SUGGESTED AFFIRMATIVE STATEMENT A
FOR AMENDING A DEFERRED COMPENSATION PLAN
Name of Employer: State: Plan Number:.
As a duly authorized agent of the above named Employer, I hereby
AMEND and restate the Employer s deferred compensauon plan (the Plan ) tn the form off (Select one)
[~ The ICMA Retirement Corporation Deferred Compensation Plan and Trust
~1 The Plan and Trust provided by the Employer (executed copy attached hereto)
SPECIFY that the assets of the Plan shall be held in trust, with the Employer serving as trustee ("Trustee"), for the exdusive benefit of the
Plan parfidpants and their beneficiaries, and the assets shall not be diverted to any other purpose. Indicia of the Employer's beneficial
ownership of Plan assets held in VantageTrust further shall be held for the exclusive benefit of the Plan participants and their beneficiaries;
AND AFFIRM that the Employer hereby agrees to senre as Trustee under the Plan.
(Tide of Designated Agent)
(Signature)
If you adopt the ICMA-RC 457 model plan document without changes,
there is no need to mail this affirmative statement m ICMA-RC.
If you adopt your own individually designed plan document, mail this executed
affirmative statement in the enclosed postage-paid envelope or m:
ICMA Retirement Corporation
Attention: New Business Analyst
777 North Capitol Street NE
Washington, DC 200024240
19
20
ATTACHMENT C2:
SUGGESTED RESOLUTION A
FOR A LEGISLATIVE BODY RELATING TO AMENDING
A DEFFERED COMPENSATION PLAN
Name of Employer:. State:
Resolution of the above named Employer ("Employer")
WHEREAS, the Employer has employees rendering valuable services; and
Plan Numben 3 0
WHEREAS, the Employer has established a deferred compensation plan for such employees that serves the interest of the Employer by
enabling it to provide reasonable retirement security for its employees, by providing increased flexibility in its personnel management
system, and by assisting in the attraction and retention of competent personnel; and
WHEREAS, the Employer has determined that the continuance of the deferred compensation plan will serve these objectives; and
WHEREAS, amendments to the 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 that the Employer hereby amen& and restates the deferred compensation plan (the "Plan") in
the form of.' (Select one)
The ICMA Retirement Corporarion Deferred Compensation Plan and Trust
The Plan and Trust provided by the Employer (executed copy attached hereto)
BE IT FURTHER RESOLVED that the assets of the Plan shall be held in trust, with the Employer serving as trustee (~Trustee"), for the
exclusive benefit of Plan participants and their beneficiaries, and the assets shall not be diverted to any other purpose. Indicia of the
Trustee s benefictal ownership of Plan assets held ~n VantageTrust further shall be held for the exclusive benefit of the P an parnc~pants and
their beneficiaries;
BE 1T FURTHER RESOLVED that the employer hereby agrees m serve as Trustee under the Plan.
I, , Clerk of the (City, County, etc.) of.
hereby certify that the foregoing resolution, proposed by (council Member, Trustee, etc.)
passed and adopted in the (council, Board, etc.)
at a regular meeting thereof assembled this day of
following vote:
,do
of the (City, County, etc.) of
_,20
, by the
AYES:
NAYS:
ABSENT:
(Seal)
Clerk of the (Cit% County, etc.)
If you adopt the ICMA-RC 457 model plan document without changes,
there is no need to mail this resolution to ICMA-RC.
If you adopt your own individually designed plan document, mail th~ executed resolution
in the enclosed postage-p~id envelope or to:
ICMA Retirement Corporation
Attention: New Business Analyst
777 North Capitol Street NE
Washington, DC 20002-4240
21
22
ATTACHMENT C3:
SUGGESTED AFFIRMATIVE STATEMENT B
FOR AMENDING A DEFERRED COMPENSATION PLAN
To be used by emplayers in jur£'dictiom requiring amendmen~s
to state or local law
Name of Employer: State:
As a duly authorized agent of the above named Employer, I hereby
Plan Number: 3 0 ____
AMEND and restate the Employer s deferred compensanon plan (the Plan ) tn the form of.' (Select oneI
The IClvlA Retirement Corporation Deferred Compensation Plan and Trust
The Plan and Trust provided by the Employer (executed copy attached hereto)
Notwithstanding the fbregoing. Plan provisions shall become effective once the appropriate body makes the necessary statutory or regula-
tory amendments permitting the provisions.
SPECIFY that the assets of the Plan shall be held in trust, with the Employer serving as trustee ("Trustee"), for the exclusive benefit of the
Plan participants and their beneficiaries, and the assets shall not be diverted to any other purpose. Indicia of the Employer's beneficial
ownership of Plan assets held in VantageTrusr further shall be held for the exclusive benefit of the Plan participants and their beneficiaries;
AND AFFIRM that the Employer hereby agrees to serve as Trustee under the Plan.
Date
(Title of Designated Agent)
(Signature)
If you adopt the ICMA-RC 457 model plan document without changes,
there is no need to mail this affirmative statement to ICMA-RC.
If you adopt your own individually designed plan document, mail this af~rmative statement
in the enclosed postage-paid envelope or to:
ICMA Retirement Corporation
Attention: New Business Analyst
777 North Capitol Street NE
Washington, DC 20002-4240
23
24
AITACHM~NT CA:
SUGGESTED RESOLUTION B
FOR A LEGISLATIVE BODY RF.I ATING TO AMENDING
A DEFERRED COMPENSATION PLAN
To be used by employe~ in jurisdicu'ons requiring amendments to state or local law or regulations
N~me of Employer:.
State: Plan Number:. 3 0
Resolution of the above named Employer ("Employer")
WHEREAS, the Employer has employees rendering valuable services; and
WHEREAS, the Employer has established a deferred compensation plan for such employees that serves the interest of the Employer by
enabling it to provide reasonable retirement security for its employees, by providing increased flexibility in its personnel management
system, and by assisting in the attraction and retention of comperent personnel; and
WHEREAS, the Employer has determined that the continuance of the deferred compensation plan will serve these objectives; and
WHEREAS, amendments to the Internal Revenue Code have been enacted that require changes to the structure of and allow enhancements
of the benefits of the deferred compensation plan:
NOWTHEREFORE BE IT RESOLVED that the Employer hereby amends and restates the deferred compensation plan (the "Plan") in
the form of.' (Select one)
The ICMA Retirement Corporation Deferred Compensation Plan and Trust
The Plan and Trust provided by the Employer (executed copy attached hereto)
Notwithstanding the foregoing, Plan provisions shall become effective once the appropriate body makes the necessary stamtory or regula-
tory amendments permitting the provisions.
BE IT FURTHER RESOLVED that the assets of the Plan shall be held in trust, with the Employer serving as trustee ("Trustee'), for the
exclusive benefit of Plan participants and their beneficiaries, and the assets shall not be diverted to any other purpose. Indicia of the
Trustee's beneficial ownership of Plan assets held in VantageTrust further shall be held for the exclusive benefit of the Plan participants and
their beneficiaries.
BE IT FURTHER RESOLVED that the employer hereby agrees to serve as Trustee under the Plan.
I, , Clerk of the (City, County, etc.) of ' , do
hereby ceftin, that the foregoing resolution, proposed by (Council Member, Trustee, etc.) , was duly
passed and adopted in the (council, Board, etc.) of the (City, County, etc.) of.
at a regular meedng thereof assembled this day of , ,20
by the following vote:
AYES:
NAYS:
ABSENT:
(Seal)
Clerk of the (City, County, etc.)
If you adopt the ICMA-RC 457 model plan docunlent without changes,
there is no need to mail this resolution to ICMA-RC.
If you adopt your own individually designed plan document, mail this executed resolution
in the enclosed postage-paid envelope or to:
ICMA Retirement Corporation
Attention: New Business Analyst
777 North Capitol Street NE
Washington, DC 20002-4240
25
26
ATTACHMENT D:
STATEMENT OF INTENT AND ADDITIONAL INFORMATION FOR
EMPLOYERS NOT ADOPTING THE ICMA-RC MODEL PLAN DOCUMENT
Employers that choose to provide their own individually designed plan document, or to use the ICMA-RC model plan document with revisions,
must follow these steps:
Amend your plan document to conform, to the 457 regulations. You may wish to use the mended language in the ICMA-RC plan document
as a model. See Attachment A for references to the appropriate ICMA-RC plan document sections.
2. Determine if formal action is required to adopt your revised document. You may use the suggested resolutions or affirmative statements
found in Attachment C if formal action is required.
3. Return the following items to ICMA-RC in the enclosed postage-paid envelope (or to: ICMA Retirement Corporation, Attention: New
Business Analyst, 777 North Capitol Street NE, Washington, DC 20002-4240) within 30 days from the postmark date on this package:
· Completed Statement oflnrent (see following pages)
· Copy ofexecored resolution or ai~firmative statement (if required)
· Copy of your amended plan document.
If your revised plan document is not yet available, please return the Statement of Intent immediately, and send the remaining items as soon as
administratively feasible.
Note that your plan must be in good faith ~ with the new regulations effective January 1, 2002 as prescribed in the regula-
tiom, even if your plan document is not revised as of that date. Your plan document should be amended as soon as possible.
ICMA-RC will perform an operational review of your plan document to ensure that we are able to administer it in accordance with your inten-
tious. A Letter of Ptan Acceptance will be returned to you afl:er our review. Note that ICMA-RC cannot take responsibility for determining
whether or not your amended document fully complies with the 457 regulations or if it meets all of the requirements for 457 plans. You are
responsible for ensuring your plan meets these requirements.
ADDITIONAL INFORMATION
Employers that do not cunendy use the ICMA-RC 457 modal plan document may want to consider converting to the ICJdA-RC model
plan document. You will find that using the model plan document makes adopting the new law changes easie~ In additiom
· The ICMA-RC plan document is designed to provide employers and participants with as much flexibility as possible within IRS
guidelines.
· Adopting the ICMA-RC plan document rde~es you from the burden and cost of continually reviewing and revising your plan document
in response to changes in the Internal Revenue Code (IRC) and rdated regulations. ICMA-RC maintains the document in compliance
with all IRC and regulatory requirements.
· ICMA-RC always seeks a favorable private letter ruling from the Internal Revenue Service for the ICMA-RC 457 model plan document.
This is important because a plan deemed ineligible by the IRS could result in a significant tax liability to all plan participants. (Please see
Attachment B for additional information on the status of our private letter ruling.)
· As a result of the 457 regulatory changes~ 457 plan documents became even more similar thus fi~rther negating the need for multiple plan
documents. Prior to EGTRRA, some employers with multiple providers maintained multiple plan documents to allow their plan
participants the flexibility to elect a separate beginning payment date under each of these plan documents. Under current law, there is no
need to maintain two plan documents to allow this additional flexibility.
Information on adopting the ICMA-RC 457 model plan document is available from our Employer Services Unit by calling toll-free 1-800-326-
7272.
~nployers using MULTIPLE PLAN PROVIDERS are responsible for dete~r~;n~ng whether they ave required to anxeod and restate the plan
document for each provider's plan.
Many employers with multiple providers consider these providers to be part of one 457 plan. In this case, only one plan document is required, and
only this plan document must be amended for the regulatory changes. If you consider multiple plan providers as providing separate 457 plans, you
must amend and restate the plan document for each provider. You may wish to consult your legal counsel regarding this situation. If you have
multiple plans, you may also wish to consider consolidating all of your plans under the ICMA-RC model plan document.
It should be noted that during the implementation of EGTRRA, many of our participating employers stopped using their own plan document or
their other 457 plan providers plan document and decided it was easier to consolidate under the [CMA-RC 457 plan document.
27
STATEMENT OF INTENT
INSTRUCTIONS FOR EMPLOYERS NOT ADOPTING THE ICMA-RC MODEL PLAN DOCUMENT
Instrucdons
· You must complete and return this Statement of Intent to ICMA-RC no later than 30 days from the postmark date on this
package if your 457 deferred compensation plan document differs from ICMA-RC's model deferred compensation plan docu-
ment. Examples are, if
· you are adopting the ICMA-RC model document, but have revised one or more provisions
or
· you are developing your own individually designed plan document.
· If you do not return this form to ICMA-RC, we will assume you are adopting the ICMA-RC model plan document.
· Please attach the following documents to this Statement of Intent prior to mailing to ICMA-RC:
1 a copy of your executed resolution or statement of affirmative action, if required by your jurisdiction;
2. a copy of your plan document, updated for the regulatory changes outlined in this 457 Regulatory Changes Implementation
Package (see Attachment A).
If your plan document is not yet available, please forward it as soon as possible. Until we receive a copy of your plan document,
we will administer your plan as directed by you on the Statement of Intent. Note that your plan must be in good faith opera-
tional compliance with the final 457 regulations effective January 1, 2002, even though your plan document was not revised as
of that date. Your plan document should be amended as soon as possible.
ICMA-RC will perform an operational review of your plan document to ensure that we can administer it in accordance with your inten-
· Please keep a copy of this Statement of Intent for your records.
The completed Statement of Intent and attachments should be mailed in the endosed postage-paid envelope, or to:
ICMA Retirement Corpotafion
Attention: New Business Analyst
777 North Capitol Street NE
Washington, DC 20002-4240
28
Name of Employer:
I. Employer Intentions
Check one:
STATEMENT OF INTENT
SUMMARY OF CHANGES TO AN INDIVIDUAI.I.Y DESIGNED PLAN
PAGE 1
State:. Plan Number:. 3 0
[~ The employer is adopting (or intends to adopt) the ICMA-RC 457 deferred compensation plan document with revisions to
certain provisions.
~ The employer is adopting (or intends to adopt) an individually designed plan document which has been updated m incorpo-
rate the revised 457 regulations.
II. Employer Instructions Regarding Plan Administtafion
Check one:
[~ The employer instructs ICMA-RC to administer this plan in accordance with this statement ofintent.
O The employer insttucts ICMA-RC ro administer this plan as if the employer had adopted the ICMA-RC model plan docu-
ment.
If neither alternative is checked, ICMA-RC will administer your plan as if you had adopted the ICMA-RC model plan document.
III. Summary of Optional Provisions
Please indicate the options you have chosen. Please note that a choice of"XxrLIl" for these items conforms to the options in the ICMA-RC
model plan document. See Attachment A for a summary of the regulatory provisions related to these options.
l)Deemed or Sidecar IRA: The Plan
[~[ Will ~[ Will Not
offer a Sidecar IRA program. (See Attachment A for details.)
2)Terminated Plan Participants: The Plan
[~ Will [~ Will Not
allow terminated participants to consolidate other retirement plan assets induding IRAs in the Plan. (See Attachment A for details.)
3) Please specie, any other significant differences between your plan and ICMA-RC's revised model plan (See Attachment A for a summary
of the ICMA-RC model document's provisions).
IV. Attachments
Attach the following documents, prior to returning the Statement of Intent to ICMA-RC:
[~[ Copy of executed resolution or affirmative statement (see Attachment C)
~[ Copy of amended plan document
If your revised plan document is not yet available, please forward it as soon as possible.
29
Name of Employer:
V. Employer Signature
Sallie
Signature
D~te
STATEMENT OF INTENT (CONTINUED)
SUMMARY OF CHANGES TO AN INDIVIDUALLY DESIGNED PLAN
PAGE 2
State: Plan Numben 3 0
Telephone number
Email
The completed Statement of Intent and attachments should be mailed in the enclosed postage-paid envelope, or to:
ICMA Retirement Corporadon
Attention: New Business Analyst
777 North Capitol Street NE
Washington, DC 200024240
30
[lTV OF DELRI:IV BEI:I[H
CITY ATTORNEY'S OFFICE
200 NW Ist AVENUE · DELRAY BEACH, FLORIDA 33444
TELEPHONE 561/243-7090 · FACSIMILE 561/278-4755
Writer's Direct Line: 561/243-7091
DELRAY BEACH
Ag.k,m'ica City
1~93,
DATE:
TO:
MEMORANDUM
December 16, 2003
City Commission
FROM:
Susan A. Ruby, City Attorney
SUBJECT: Resolution Adopting the Amended and Restated Plan and Trust
Documents for the ICMA 457 Plan
Certain changes have been made to the ICMA 457 Deferred Compensation Plan,
reflecting changes in the law, as a result of the adoption of recently finalized 457
regulations adopted pursuant to the Economic Growth and Tax Relief
Reconciliation Act of 2001 (EGTRRA).
Attached, for your information, is a chart explaining the regulatory changes.
Also attached is a Resolution adopting the Restated Plan and Trust Document
which is attached as Appendix "A" to the Resolution and incorporated therein.
By copy to David Harden, City Manager, please place this Resolution on the
January 6, 2004 consent agenda for approval.
Once approved, the City's revised Declaration of Trust shall automatically be
deemed implemented by the City.
Please call if you have any questions.
Cc:
David Harden, City Manager
Barbara Garito, City Clerk
Joe Safford, Finance Director
Glenda Rivera, Payroll Administrator
5
RESOLUTION NO. 2-04
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
DELRAY BEACH, FLORIDA, ADOPTING THE AMENDED AND
RESTATED PLAN AND TRUST DOCUMENT FOR THE ICMA
RETIREMENT CORPORATION SECTION 457 DEFERRED
COMPENSATION PLAN EFFECTIVE JANUARY 1, 2004;
PROVIDING THAT THE ASSETS OF THE PLAN SHALL BE HELD
IN TRUST FOR THE EXCLUSIVE BENEFIT OF PLAN
PARTICIPATES AND THEIR BENEFICIARIES; PROVIDING THAT
THE PLAN WILL NOT PERMIT LOANS; PROVIDI1NG AN
EFFECTIVE DATE.
WHEREAS, the City 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
ICMA-RC); and,
WHEREAS, the City's deferred compensation plan benefits the City and its employees by providing
reasonable retirement security 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, the ICMA-RC is using a negative election process wherein no notification is necessary
to ICMA-RC to take advantage of changes in the law; and,
WHEREAS, however, the City for its own record keeping seeks to adopt this resolution which
adopts the amended and restated plan; 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 CITY
OF DELRAY BEACH, FLORIDA, AS FOLLOWS:
Section 1. That the City hereby amends and adopts the restated ICMA Retirement Corporation
Deferred Compensation Plan and Trust (the "Plan"), attached hereto and made a part hereof as Appendix
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 Vantage 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 regular session on this the __ day of January, 2004.
ATTEST:
MAYOR
City Clerk
2 RES. NO. 2-04
Deferred
Compensation
Plan
&TRUST
DEFERRED COMPENSATION PLAN & TRUST
As Amended and Restated Effective January 1, 2001
Article I. Purpose
The Employer hereby establishes the Employer's Deferred Compensation Plan and Trust, hereafter referred
to as the "Plan." The Plan consists of the provisions set forth in this document.
The primary purpose of this Plan is to provide retirement income and other deferred benefits to the Employ-
ees of the Employer and the Employees' Beneficiaries in accordance with the provisions of Section 457 of the
Internal Revenue Code of 1986, as amended (the "Code").
This Plan shall be an agreement solely between the Employer and participating Employees. The Plan and
Trust forming a part hereof are established and shall be maintained for the exclusive benefit of Participants
and their Beneficiaries. No part of the corpus or income of the Trust shall revert to the Employer or be used
for or diverted to purposes other than the exdusive benefit of Participants and their Beneficiaries.
Artide II. Definitions
2.01 Account: The bookkeeping account maintained for each Participant reflecting the cumulative amount
of the Participant's Deferred Compensation, including any income, gains, losses, or increases or decreases in
market value attributable to the Employer's investment of the Participant's Deferred Compensation, and
further reflecting any distributions to the Participant or the Participant's Beneficiary and any fees or expenses
charged against such Participant's Deferred Compensation.
2.02 Accounting Date: Each business day that the New York Stock Exchange is open for trading, as pro-
vided in Section 6.06 for valuing the Trust's assets.
2.03 Administrator: The person or persons named to carry out certain nondiscretionary administrative
functions under the Plan, as hereinafter described. The Employer may remove any person as Administrator
upon 60 days' advance notice in writing to such person, in which case the Employer sha~ name another
person or persons to act as Administrator. The Administrator may resign upon 60 days' advance notice in
writing to the Employer, in which case the Employer shall name another person or persons to act as Admin-
istrator.
· 2.04 Automatic Distribution Date: Prior to January 1, 2002, "Automatic Distribution Date" means the
60th day of the calendar year after the Plan Year of the Participant's Retirement or any other date permitted
under the regulations promulgated under Code section 457. On and after January 1, 2002, "Automatic
Distribution Date" means April 1 of the calendar year after the Plan Year the Participant attains age 70-I/2
or, if later, has a Severance Event.
2.05 Benefidary: The person or persons designated by the Participant in his or her Joinder Agreement who
shall receive any benefits payable hereunder in the event of the Participant's death. In the event that the
Participant names two or more Beneficiaries, each Beneficiary shall be enfided to equal shares of the benefits
payable at the Participant's death, unless otherwise provided in the Participant's Joinder Agreement. If no
beneficiary is designated in the Joinder Agreements if the Designated Beneficiary predeceases the Participant,
or if the designated Beneficiary does not survive the Participant for a period of fifteen (15) days, then the
estate of ~e Participant shall be the Beneficiary. If a married Participant resides in a community or marital
property state, the Participant shall be responsible for obtaining appropriate consent of his or her spouse in
the event the Participant designates someone other than his or her spouse as Beneficiary.
2.0~ Deferred Compensation: The amount of Normal Compensation otherwise payable to the Parfidpant
which the Participant and the Employer mutually agree to defer hereunder, any amount credited to a Pardci-
pant's Account by reason ora transfer under Section 6.09, a rollover under Section 6.10, or any other
amount which the Employer agrees to credit to a Participant's Account.
2.07 Dollar Limitation: The applicable dollar amount within the meaning of Section 457(b)(2)(A) of the
Code, as adjusted for the cost-of-living in accordance with Section 457(e)(15) of the Code.
2.08 Employee: Any individual who provides services for the Employer, whether as an employee of the
Employer or as an independent contractor, and who has been designated by the Employer as eligible to
participate in the Plan.
2.09 Employer: , which is a political subdivision, agency or
instrumentality of the [State/Commonwealth] of , within the
meaning of Section 414(d) of the Code and Section 3(32) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA").
2.10 457 Catch-Up Dollar I.imitadom Prior to January 1, 2002, "457 Catch-Up Dollar Limitation"
means $15,000. On and after January 1, 2002, "457 Catch-Up Dollar Limitation" means twice the Dollar
Limitation.
2.11 Indudlble Compensation: The amount of an Employee's compensation from the Employer for a
taxable year that is attributable to services performed for the Employer and that is indudible in the Employ-
ee's gross income for the taxable year for federal income tax purposes as defined in Section 457(e)(5) of the
Code; such term does not include any amount excludable from gross income under this Plan or any other
plan described in Section 457(b) of the Code or any other amount excludable from gross income for federal
income tax purposes. Includible Compensation shall be determined without regard to any community
property laws.
2.12 Joinder Agreement: An agreement entered into between an Employee and the Employer, including
any amendments or modifications thereof. Such agreement shall fix the amount of Deferred Compensation,
specify a preference among the investment alternatives designated by the Employer, designate the Employee's
Beneficiary or Beneficiaries, and incorporate the terms, conditions, and provisions of the Plan by reference.
2.13 Normal Compensation: The amount of Compensation which would be payable to a Participant by
the Employer for a taxable year if no Joinder Agreement were in effect to defer compensation under this
Plan.
2.14 Normal Limltafion: The maximum amount of Deferred Compensation for any Participant for any
taxable year (other than amounts referred to in Sections 6.09 and 6.10).
2.15 Normal Retirement Age: Age 70-1/2, unless the Participant has elected an alternate Normal Retire-
ment Age by written instrument delivered to the Administrator prior to a Severance Event. A Participant's
Normal Retirement Age determines the period during which a Participant may utilize the 457 Catch-Up
Dollar Limitation of Section 5.02(b) hereunder. Once a Participant has to any extent utilized the catch-up
limitation of Section 5.02(b), his Normal Re. tirement Age may not be changed.
A Participant's alternate Normal Retirement Age may not be earlier than the earliest date that the Participant
will become eligible to retire and receive unreduced retirement benefits under the Employer's basic retire-
ment plan covering the Participant and may not be later than the date the Parfidpant will attain age 70-1/2.
If a Participant continues employment after attaining age 70-1/2, not having previously elected alternate
Normal Retirement Age, the Participant's alternate Normal Retirement Age shall not be later than the
mandatory retirement age, if any, established by the Employer, or the age at which the Participant actually
has a Severance Event if the Employer has no mandatory retirement age. If the Participant will not become
eligible to receive benefits under a basic retirement plan maintained by the Employer, the Participant's
alternate Normal Retirement Age may not be earlier than age 55 and may not be later than age ,~0-1/2.
2.16 Participant: Any Employee who has joined the Plan pursuant to the requirements of Artide IX(.
2.17 Percentage Limitation: Prior to January 1, 2002, the Percentage Limitation means 33 1/3 percent of
the participant's Includible Compensation for the taxable year, which will ordinarily be equivalent to the
lesser of the Dollar Limitation in effect for the taxable year or 25 percent of the Participant's Normal Com-
pensation. After December 31, 2001, the Percentage Limitation means 100 percent of the partidpant's
Includible Compensation for the taxable year, which will ordinarily be equivalent to the lesser of the Dollar
Limitation in effect for the taxable year or 50 percent of the Participant's Normal Compensation.
2.18 Plan Year: The calendar year.
2.19 Retirement: The first date upon which both of the following shall have occurred with respect to a
participant: Severance ~F~vent and attainment of age 65.
2.20 Severance Event: Prior to January 1, 2002, severance of the Participant's employment with the Em-
ployer that constitutes a "separation from service" within the meaning of Section 402(e)(4)(D)(iii) of the
Code. After December 31, 2001, a Severance Event means a severance of the Participant's employment with
the Employer within the meaning of Section 457(d) ( 1 ) (A) (ii) of the Code.
In general, a Participant shall be deemed to have experienced a Severance Event for purposes of this Plan
when, in accordance with the established practices of the Employer, the employment relationship is consid-
ered to have actually terminated. In the case of a Participant who is an independent contractor of the Em-
ployer, a Severance Event shall be deemed to have occurred when the Participant's contract under which
services are performed has completely expired and terminated, there is no foreseeable possibility that the
Employer will renew the contract or enter into a new contract for the Participant's services, and it is not
anticipated that the Participant will become an Employee of the Employer, or such other events as may be
permitted under the Code.
2.21 Trust: The Trust created under Article VI of the Plan which shall consist of all compensation deferred
under the Plan, plus any income and gains thereon, less any losses, expenses and distributions to Participants
and Beneficiaries.
Article HL .A,4,-i,,i~tration
3.01 Dudes of the Employer:. The Employer shall have the authority to make all discretionary decisions
affecting the rights or benefits of Participants which may be required in the administration of this Plan. The
Employer's decisions shall be afforded the maximum deference permitted by applicable law.
3.02 Duties offldmlnistrator: The Administrator, as agent for the Employer, shall perform
nondiscrefionary administrative functions in connection with the Plan, including the maintenance of Par-
ticipants' Accounts, the provision of periodic reports of the status of each Account, and the disbursement of
benefits on behalf of the Employer in accordance with the provisions of this Plan.
Artlde IV.. Participation in the Plan
4.01 Initial Partidpatiom An Employee may become a Participant by entering into a Joinder Agreement
prior to the beginning of the calendar month in which the Joinder Agreement is to become effective to defer
compensation not yet earned, or such other date as may be permitted under the Code.
4.02 Amendment ofJoinder Agreementa A Participant may amend an executed Joinder Agreement to
change the amount of Normal Compensation not yet earned which is to be deferred (including the reduc-
tion of such future deferrals to zero). Such amendment shall become effective as of the beginning of the
calendar month commencing after the date the amendment is executed, or such oth,~r date as may be per-
mitted under the Code. A Participant may at any time amend his or her Joinder Agreement to change the
designated Beneficiary, and such amendment shall become effective immediately.
ArtideV. Limltafions on Deferrals
5.01 Normal Limitation: Except as provided in Section 5.02, the maximum amount of Deferred Com-
pensation for any Participant for any taxable year, shall not exceed the lesser of the Dollar Limitation or the
Percentage Limitation.
5.02 Catch-Up l.lmltations:
(a) Catch-up Contributions for Participants Age 50 and Over: A Participant who has attained the
age of 50 before the close of the Plan Year, and with respect to whom no other elective deferrals
may~be made to the Plan for the Plan Year by reason of the Normal Limitation of Section 5.01,
?~nay enter into a Joinder Agreement to make elective deferrals in addition to those permitted by
the Normal Limitation in an amount not to exceed the lesser of (1) the applicable dollar amount
as defined in Section 414(v)(2)(B) of the Code, as adjnsted for the cost-of-living in accordance
with Section 414(v)(2)(C) of the Code, or (2) the excess (if any) of (i) the Participant's compen-
sation (as defined in Section 415(c)(3) of the Code) for the year, over (ii) any other elective
deferrals of the Participant for such year which are made without regard to this Section 5.02(a).
An additional contribution made pursuant to this Section 5.02(a) shall not, with respect to the
year in which the contribution is made, be subject to any otherwise applicable limitation con-
tained in Section 5.01 above, or be taken into account in applying such limitation to other
contributions or benefits under the Plan or any other plan. This Section 5.02(a) shall not apply
in any year to which Section 5.02(b) applies. The provisions oft_his Section 5.02(a) of the Plan
shall only apply on and after January 1, 2002.
(b), Last Three Years Catch-up Contribution: For each of the last three (3) taxable years for a Partici-
pant ending before his or her attainment of Normal Retirement Age, the maximum amount of
Deferred Compensation shall be the lesser of: (1) the 457 Catch-Up Dollas Limitation, or (2)
the sum of (i) the Normal Limitation for the taxable year, and (ii) the Normal Limitation for
each prior taxable year of the Participant commencing after 1978 less the amount of the Partici-
pant's Deferred Compensation for such prior taxable years. A prior taxable year shall be taken
into account under the preceding sentence only if (x) the Participant was digible to participate in
the Plan for such year (or in any other eligible deferred compensation plan established under
Section 457(b) of the Code which is properly taken into account pursuant to regulations under
Section 457), and (y) compensation (if any) deferred under the Plan (or such other plan) was
subject to the Normal Limitation.
5.03 Other Plans: Notwithstanding any provision of the Plan to the contrary, the amount excludible from
a Participant's gross income under this Plan or any other eligible deferred compensation plan under Section
457(b) of the Code shall not exceed the limits set forth in Sections 457(b) and 414(v) of the Code. Prior to
January 1, 2002, the limits under Section 457(b) of the Code described in the first sentence of this Section
5.03 shall be further reduced by any amount excluded from gross income under Sections 401 (k), 402(e)(3),
402(h)(1)(B), and 403(b) of the Code, or any amount with respect to which a deduction is allowable by
reason of a contribution to an organization described in Section 501(c)(18) of the Code.
AttideVI. Trust and Investment of Accounts
6.01 Investment of Deferred Compensation: A Trust is hereby created to hold all the assets of the Plan
for the exclusive benefit of Participants and Beneficiaries, except that expenses and taxes may be paid from
the Trust as provided in Section 6.03. The trustee shall be the Employer or such other person that agrees to
act in that capacity hereunder.
6.02 Investment Powers: The trustee or the Administrator, acting as agent for the trustee, shall have the
powers listed in this Section with respect to investment of Trust assets, except to the extent that the invest-
ment of Trust assets is directed by Participants, pursuant to Section 6.05.
(a)
To invest and reinvest the Trust without distinction between principal and income in common or
preferred stocks, shares of regulated investment companies and other mutual funds, bonds, loans,
notes, debentures, certificates of deposit, contracts with insurance companies including but not
limited to insurance, individual or group annuity, deposit administration, guaranteed interest
contracts, and deposits at reasonable rates of interest at banking institutions induding but not
limited to savings accounts and certificates of deposic Assets of the Trust may be invested in
securities that involve a higher degree of risk than investments that have demonstrated their
investment performance over an extended period of time.
(b)
To invest and reinvest all or any part of the assets of the Trust in any common, collective or
commingled trust fund that is maintained by a bank or other institution and that is available to
Employee plans described under Sections 457 or 401 of the Code, or any successor provisions
thereto, and during the period of time that an investment through any such medium shall exist,
to the extent of participation of the Plans the declaration of trust of such commonly collective, or
commingled trust fund shall constitute a part of this Plan.
~ (c) To invest and reinvest all or any part of the assets of the Trust in any group annuity, deposit
administration or guaranteed interest contract issued by an insurance company or other financial
institution on a commingled or collective basis with the assets of any other 457 plan or trust
qualified under Section 401(a) of the Code or any other plan described in Section 401(a)(24) of
the Code, and such contract may be held or issued in the name of the Administrator, or such
custodian as the Administrator may appoint, as agent and nominee for the Employer. During
the period that an investment through any such contract shall exist, to the extent of participation
of the Plan, the terms and conditions of such contract shall constitute a part of the Plan.
(d) To hold cash awaiting investment and to keep such portion of the Trust in cash or cash balances,
without liability for interest, in such amounts as may from time to rime be deemed to be reason-
able and necessary to meet obligations under thesPian or otherwise to be in the best interests of
the Plan.
(e) To hold, to authorize the holding of, and to register any investment to the Trust in the name of
the Plan, the Employer, or any nominee or agent of any of the foregoing, including the Adminis-
trator, or in bearer form, to deposit or arrange for the deposit of securiries in a qualified central
depository even though, when so deposited, such securities may be merged and held in bulk in
the name of the nominee of such depository with other securities deposited therein by any other
person, and to organize corporations or trusts under the laws of any jurisdiction for the purpose
of acquiring or holding title to any property for the Trust, all with or without the addition of
words or other action to indicate that property is held in a fiduciary or representative capacity
but the books and records of the Plan shall at all times show that all such investments are part of
the Trust.
(f) Upon such terms as may be deemed advisable by the Employer or the Administrator, as the case
may be, for the protection of the interests of the Plan or for the preservation of the value of an
investment, to exercise and enforce by suit for legal or equitable remedies or by other action, or
to waive any right or claim on behalf of the Plan or any default in any obligation owing m the
Plan, to renew, extend the time for payment of, agree to a reduction in the rate of interest on, or
agree to any other modification or change in the terms of any obligation owing to the Plan, to
settle, compromise, adjust, or submit to arbitration any claim or right in favor of or against the
Plans to exercise and enforce any and all rights of foreclosure, bid for property in foreclosure, and
take a deed in lieu of foreclosure with or without paying consideration therefor, to commence or
defend suits or other legal proceedings whenever any interest of the Plan requires it, and to
represent the Plan in all suits or legal proceedings in any court of law or equity or before any
body or tribunal.
(g) To employ suitable consultants, depositories, agents, and legal counsel on behalf of the Plan.
(h) To open and maintain any bank account or accounts in the name of the Plan, the Employer, or
any nominee or agent of the foregoing, induding the Administrator, in any bank or banks.
(i) To do any and all other acts that may be deemed necessary to carry out any of the powers set
forth herein.
6.03 Taxes and Expenses: All taxes of any and all kinds whatsoever that may be levied or assessed under
existing or furore laws upon the Plan, or in respect to the Trust, or the income thereof, and all commissions
or acquisitions or dispositions of securities and similar expenses of investment and reinvestment of the Trust,
shall be paid from the Trust. Such reasonable'compensation of the Administrator, as may be agreed upon
from time to time by the Employer and the Administrator, and reimbursement for reasonable expenses
incurred by the Administrator in performance of its duties hereunder (including but not limited to fees for
legal, accounting, investment and custodial services) shall also be paid from the Trust.
6.04 Payment of Benefits: The payment of benefits from the Trust in accordance with the terms of the
Plan may be made by the Administrator, or by any custodian or other person so authorized by the Employer
to make such disbursement. The Administrator, custodian or other person shall not be liable with respect to
any distribution of Trust assets made at the direction of the Employer.
6.05 Investment Funds: In accordance with uniform and nondiscriminatory rules establisked by the
Employer and the Administrator, the Participant may direct his or her Accounts to be invested in one (1) or
more investment funds available under the Plan; provided, however, that the Participant's investment direc-
tions shall not violate any investment restrictions established by the Employer. Neither the Employer, the
Administrator, nor any other person shall be liable for any losses incurred by virtue of following such direc-
tions or with any reasonable administrative delay in implementing such directions.
6.06 Valuation of Accounts: As of each Accounting Date, the Plan assets held in each investment fund
offered shall be valued at fair market value and the investment income and gains or losses for each fund shall
be determined. Such investment income and gains or losses shall be allocated proportionately among all
Account balances on a fund-by-fund basis. The allocation shall be in the proportion that each such Account
balance as of the immediately preceding Accounting Date bears to the total of all such Account balances as
of that Accounting Date. For purposes of this Article, all Account balances indude the Account balances of
all Participants and Ber~,~ciaries.
6.07 Participant Loan Account: Participant Loan Accounts shall be invested in accordance with Section
8.03 of the Plan. Such Accounts shall not share in any investment income and gains or losses of the invest-
ment funds described in Sections 6.05 and 6.06.
6.08 Crediting of Accounts: The Participant's Account shall reflect the amount and value of the invest-
ments or other property obtained by the Employer through the investment of the Participant's Deferred
Compensation pursuant to Sections 6.05 and 6.06. It is anticipated that the Employer's investments with
respect to a Participant will conform to the investment preference specified in the Participant's Joinder
Agreement, but nothing herein shall be construed to require the Employer to make any particular invest-
ment ora Participant's Deferred Compensation. Each Partidpant shall receive periodic reports, not less
frequendy than annually, showing the then current value of his or her Account.
6.09 Trat~fers:
(a) Incoming Transfers: A transfer may be accepted from an eligible deferred compensation plan
maintained by another employer and credited to a Participant's Account under the Plan if (i) the
Participant has had a Severance Event with that employer and become an Employee of the
Employer, 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 in accordance with Section 457(e)(10) of the Code, to confirm that such
plan is an eligible deferred compensation plan within the meaning of Section 457(b) 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 ofassers other than cash, unless the Employer and the Administra-
tor agree to hold such other assets under the Plan.
Any such transferred amount shall not be treated as a deferral subject to the limitations of Artide
V, except that, for purposes of applying the limitations of Sections 5.01 and 5.02, an amount
deferred during any taxable year under the plan from which the transfer is accepted shall be
treated as if it has been deferred under this Plan during such taxable year and compensation paid
by the transferor employer shall be treated as if it had been paid by the Employer.
(b)
Outgoing Transfers: An amount may be transferred to an digible deferred compensation plan ,
maintained by another employer, and charged to a Participant's Account under this Plan, if (i)
the Participant has a Severance Event with the Employer and becomes an employee of the other
employer, (ii) the other employer's plan provides that such transfer will be accepted, and (iii) the
Participant and the employers have signed such agreements as are necessary to assure that the
Employer's liability to pay benefits to the Participant has been discharged and assumed by the
other employer. The Employer may require such documentation from the other 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(b) of the Code, and to assure that transfers are provided
for under such plan. Such transfers shall be made only under such circumstances as are permit-
ted under Section 457 of the Code and the regulations thereunder.
6.10 F]i~ble Rollover Distributions:
(a) Effective Date: This Section 6.10 is effective January 1, 2002.
(b)
Incoming Rollovers: An eligible rollover distribution may be accepted from an eligible retire-
ment plan maintained by another employer and credited to a Participant's Account under the
Plan. The Employer may require such documentation from the distributing plan as it deems
necessary to effectuate the rollover in accordance with Section 402 of the Code and to confirm
that such plan is an eligible retirement plan within the meaning of Section 402(c)($)(B) of the
Code. The Plan shall separately account for eligible rollover distributions from any eligible
retirement plan that is not an eligible deferred compensation plan described in Section 457(b) of
the Code maintained by an eligible governmental employer described in Section 457(e)(1)(A) of
Code.
Outgoing Rollovers: Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a distributee's election under this Section, a distributee may elect, at the time and
in the manner prescribed by the Administrator, to have any portion of an eligible rollover distri-
bution paid directly to an eligible retirement plan specified by the distributee in a direct rollover.
(d) Definitions:
(1) Eligible Roltover Distribution: An eligible rollover distribution is any distribution of
all or any portion of the balance to the credit of the distributee, except that an eligible
rollover distribution does not include: any distribution that is one of a series of sub-
stantially equal periodic payments (not less frequently than annually) made for the life
(or life expectancy) of the distributee or the joint lives (or joint life expectancies) of the
distributee and the distrihutee's designated beneficiary, or for a specified period of ten
years or more; any distribution to the extent such distribution is required under Sec-
tions 401 (a)(9) and 457(d)(2) of the Code; and any distribution made as a result of an
unforeseeable emerger~cy of the employee. For purposes of distributions from other
eligible retirement plans rolled over into this Plan, the term eligible rollover distribu-
tion shall not include the portion of any distribution that is not includible in gross
income (determined without regard to the exclusion ,for net unrealized appreciation
with respect to employer securities).
(2)
Eligible Retirement Plan: An eligible retirement plan is an individual retirement
account described in Section 408(a) of the Code, an individual retirement annuity
described in Section 408(b) of the Code, an annuity plan described in Secfious 403(a)
or 403(b) of the Code, a qualified trust described in Section 401(a) of the ~ode, or an
eligible deferred compensation plan described in Section 457(b) of the/Cdde which is
maintained by an eligible governmental employer described in Section 457(e)(1 )(A) of
the Code, that accepts the disttibutee's eligible rollover distribution.
(3)
Distributee: A distributee includes an employee or former employee. In addition, the
employee's or former employee's surviving spouse and the employee's or former em-
ployee's spouse or former spouse who is the alternate payee under a qualified domestic
relations order, as defined in Section 414(p) of the Code, are distribmees with regard
to the interest of the spouse or former spouse.
(4) Direct Rotlover: A direct rollover is a payment by the plan to the eligible retirement
plan specified by the disttibutee.
6.11 Trustee-to.Tru~ Transfers to Purchase Permissive Service Credit: All or a portion ora Partici-
pant's Account may be ~anSferred direcdy to the trustee of a defined benefit governmental plan (as defined
in Section 414(d) of the Code) if such transfer is (A) for the purchase of permissive service credit (as defined
in Section 415(n)(3)(A) of the Code) under such plan, or (B) a repayment to ~hich Section:415 of the Code
does not apply by reason of subsection (k)(3} thereof, within the meaning of Section 457(e)(17) of the Code.
6.12 Treatment of Distributious of Amounts Previously Rolled Over From 401(a) and 403(b) P~n~
and IRAs. For purposes of Section 72(t) of the Code, a distribution from this Plan shall be treated as a
distribution from a qualified retirement plan described in Section 4974(c)(1) of the Code to the extent that
such distribution is attributable to an amount transferred to an eligible deferred compensation plan from a
qualified retirement plan (as defined in Section 4974(c) of the Code).
6.13 Deemed IRAs: Effective for Plan Years beginning after December 31, 2002, the Employer may elect
to allow Employees to make voluntary employee contributions to a separate account or annuity established
under the Plan that complies with the requirements of Code section 408(q) and any regulations promul-
gated thereunder. Such accounts or annuities shall meet the applicable requirements of Code sections 408 or
408A and shall be treated as an individual retirement plan that is not part of the Plan.
6.14 Employer Liability: In no event shall the Employer's liability to pay benefits to a Participant under
this Plan exceed the value of the amounts credited to the Participant's Account; neither the Employer nor
the Administrator shall be liable for losses arising from depreciation or shrirflmge in the value of any invest-
ments acquired under this Plan.
9
Article VII. Benefits
7.01 Retirement Benefits and Election on Severance Event:
General Rule: Except as otherwise provided in this Article VII, the distribution of a Participant's
Account shall commence as of a Participant's Automatic Distribution Date, and the distribution
of such benefits shall be made in accordance with one of the payment options described in
Section 7.02. Notwithstanding the foregoing, but subject to the following paragraphs of this
Section 7.01, the Participant may elect following a Severance Event to have the distribution of
benefits commence on a £nced determinable date other than that described in the preceding
sentence, but not later than April I of the year following the year of the Participant's Retirement
or attainment of age 70-1/2, whichever is later. Prior to January 1, 2002, an election made
pursuant to the preceding sentence shall not be valid unless such election is made not less than
30 days'prior to the date that the distribution of a Participant's Account would otherwise com-
mence.
(b)
Additional Delay in Distribution: Prior to Januaqr 1, 2002, the Participant may elect to defer
the commencement of distribution of benefits to a fixed determinable date later than the date
provided in Section 7.01 (a), but not later than April 1 of the year following the year of the
Participant's retirement or attainment of age 70 1/2, whichever is later, provided, however, that
(a) such election is made after the 61st day following the Participant's Severance Event and before
commencement of disttibutions, (b) the Participant may make only one (t) such election, and
(c) such election is made not less than 30 days prior to the date the distribution of a Participant's
Account would otherwise commence. On or after January 1, 2002, the Participant's right to
change his or her election with respect to commencement of the distribution of benefits shall not
be restrained by this Section 7.01. Notwithstanding the foregoing, the Administrator, in order
to ensure the orderly administration of this provision, may establigh a deadline after which such
election to defer the commencement of distribution of benefits shall not be allowed.
(c)
Loans: Notwithstanding the foregoing provisions of this Section 7.01, no election to defer the
commencement of benefits after a Severance Event shall operate to defer the distribution of any
amount in the Participant's Loan Account in the event of a default of the Participant's loan.
7.02 Payment Options: As provided in Sections 7.01, 7.04 and 7.05, a Participant may elect to have
value of the Partidpant's Account distributed in accordance with one of the following payment options,
provided that such option is consistent with the limitations set forth in Section 7.03.
(a) Equal monthly, quarterly, semi-annual or annual payments in an amount chosen by the Partici-
pant, continuing until his or her Account is exhausted;
(b) One lump-sum payment;
(c) Approximately equal month135 quarterly, semi-annual or annual payments, calculated to con-
tinue for a period certain chosen by the Participant.
(d)
Annual Payments equal to the minimum distributions required under Section 401 (a)(9) of the
Code, including the inddental death benefit requirements of Section 401 (a)(9)(G), over the life
expectancy of the Participant or over the life expectancies of the Participant and his or her
Beneficiary.
10
(e) Payments equal to payments made by the issuer of a retirement annuity policy acquired by the
Employer.
(f)
A split distribution under whid~ payments under options (a), (b), (c) or (e) commence or are
made at the same time, as elected by the Participant under Section 7.01, provided that all
payments commence (or are made) by the latest benefit commencement date under Section
7.01.
(g) Any other payment option elected by the Participant and agreed to by the Employer and Ad-
ministrator.
A Participant's selection of a payment option made after December 31, 1995, under Subsections (a), (c), or
(g) above may include the sel<fion 0fan automatic annual cost-of-living increase. Such increaseAvill be
based on the rise in the Consumer Price Index for All Urban Consumers (CPI-U) from the third quarter of
the last year in which a cost-of-living increase was provided to the third quarter of the current year. Any
increase will be made in periodic payment Checks beginning the following January.
If, prior to January 1, 2002, a Participant made a timely election of a payment date but failed to specify a
payment option or failed to make a timely election of both payment date and option, and as a result, was
defaulted to benefit commencement at age 65, or such other date as the Participant may have specified,
benefits shall be paid annually in the amount of $100 per year commencing at age 65 or the date specified
by the Participant until the Participant reaches age 70-1/2. When the Participant reaches age 70-1/2,
payments shall be made in accordance with Code section 401 (a)(9) and the regulations thereunder.
7.03 l.imitatlon on Options: No payment option may be selected by a Participant under subsections
7.02(a) or (c) unless the amount of any installment is not less than $100. No payment option may be
selected by a Participant. aander Sections 7.02, 7.04, or 7.05 unless it satisfies the requirements Of Sections
401 (a)(9) and 457(d)(2j'of the Code, including that payments commencing before the death of the Partici-
pant shall satisfy the incidental death benefit requirements under Section 401 (a)(9)(G).
7.04 Post-Retirement Death Benefits:
(a)
Should the Participant die after he/she has begun to receive benefits under a payment option, the
remaining payments, if any, under the payment option shall continue until the Administrator
receives notice of the Participant's death. Upon notification of the Participant's death, benefits
shall be payable to the Participant's Beneficiary commencing not later than December 31 of the
year following the year of the Participant's death, provided that the Beneficiary may elect to
begin benefits earlier than that date.
(b)
If the Beneficiary has not attained age 80 at the time payments commence, he or she may elect to
receive payments in a single lump-sum payment or in equal or approximately equal monthly,
quarterly, semi-annual or annual payments continuing over a period not to exceed ten years from
the first payment. The Benefidary also may elect to receive a partial lump-sum payment fol-
lowed by monthly, quarterly, semi-annual or annual installments, provided that all payments are
made within a petiod often years from the initial payment. In the event that the Benefidary is
age 80 or over, the remaining balance in the Participant's account will be paid to the Beneficiary
in a single lump sum.
11
(c) In the event that the Beneficiary dies before the payment of death benefits has commenced or
been completed, the remaining value of the Participant's Account shall be paid to the estate of
the Beneficiary in a lump sum. In the event that the Partidpant's estate is the Beneficiary,
payment shall be made to the estate in a lump sum.
7.05 Pre-Retirement Death Benefits:
(a)
Should the Participant die before he or she has begun to receive the benefits provided by Section
7.01, the value of the Participant's Account shall be payable to the Beneficiary commencing not
later than December 31 of the year following the year of the Participant's death, provided that
the Beneficiary may elect to begin benefits earlier than that date.
(b)
If the Beneficiary has not attained age 80 at the time payments commence, he or she may elect to
receive payments in a single lump-~sum payment or in equal or approximatdy equal monthly,
quarterly, semi-annual or annual payments continuing over a period not to exceed ten years from
the first payment. The Beneficiary also may elect to receive a partial lump-sum payment
followed by monthly, quarterly, semi-annual or annual installments, provided that all payments
are made within a period often years from the initial payment. In the event that the Beneficiary
is age 80 or over, the remaining balance in the Participant's account will be paid to the
Beneficiary in a single lump sum.
(0
In the event that the Beneficiary dies before the payment of death benefits has commenced or
been completed, the remaining value of the Participant's Account shall be paid to the estate of
the Beneficiary in a lump sum. In the event that the Participant's estate is the Beneficiary,
payment shall be made to the estate in a lump sum.
7.06 Unforeseeable Emergencies:
In the event an unforeseeable emergency occurs, a Participant may apply to the Employer to
receive that part of the value of his or her Account that is reasonably needed to satisfy the emer-
gency need. If such an application is approved by the Employer, the Participant shall be paid
only such amount as the Employer deems necessary to meet the emergency need, but payment
shall not be made to the extent that the financial hardship may be relieved through cessation of
deferral under the Plan, insurance or other reimbursement, or liquidation of other assets to the
extent such liquidation would not itself cause severe financial hardship.
(b)
An unforeseeable emergency shall be deemed to involve only circumstances of severe fmandal
hardship to the Participant resulting from a sudden unexpected illness, accident, or disability of
the Participant or ora dependent (as defined in Section 152(a) of the Code) of the Participant,
loss of the Participant's property due to casualty, or other similar and extraordinary unforeseeable
circumstances arising as a result of events beyond the control of the Participant. The need to
send a Participant's child to college or to purchase a new home shall not be considered unforesee-
able emergencies. The determination as to whether such an unforeseeable emergency exists shall
be based on the merits of each individual case.
7.07 De MJnlm~ Accounts: Notwithstanding the foregoing provisions of this Article, prior tO January I,
2002, if the value of a Participant's Account does not exceed the dollar limit under Section 41 l(a)(11)(A) of
the Code as described in Section 457(e)(9)(A) of the Code and (a) no amount has been deferred under the
12
Plan with respect tothe Parfiei~t ~ng the 2-year ~ti~ ending on the date of the distribution and (b)
there has been no prior ~b~fi6~ ~der the Plan to the P~eipant pursuant to this Section 7.07, the
Parucipant may elect to recen~e or the Employer may ~nvoluntarIly distribute the Paruclpant s entire Account
without the consent of the Participant. Such distribution shall be made in a lump sum.
On or after January 1, 2002, if the value of a Participant's Account is less than $ t,000, the Participant's
Account shall be paid to the Patfieip~t ina single lump sum distribution; provided that (a) no amount has
been deferred under the Plan with ~peCt to the Pmi~ii~ant during the 2-yeat period ending on the date of
the distribution and (b) there has been no prior distribution under the Plan to the Participant pursuant to
this Section 7.07. ' '
If the value of the PartIcapant s Account is at least $1,000 but not more than the dollar
limit under Code Section 411 (a) ( 11 )(A) and (a) no amount has been deferred under the Plan with respect to
the Participant during the 2-year period ending on the date of the distribution and (b) there has been no
prior distribution under the Plan to the P~tieipant pursuant to this SectiOn 7.07, the Participan~ may elect
to receive his or her entire Account. Such distribution shall be made in a lump sum. t
8.01 Availability of Lo , to Partlciivants=. ,
(a) The Employer may elect to make loans available to Participants in this Plan. If the Employer has
elected to make loans available to Pariicipants, a Participant may apply for a loan from the Plan
subject to the limitations a~d Other provisions of this Artide.
(b) The Employer shalI'establigh writter/gu~' elin~ governing the granting of loans, provided that
such guidelines are approved by the Administrator and ate not inconsistent with the provisions
of this Article, and that loans are made available toall Participants on a reasonably equivalent
basis. %~
8.02 Terms and Condiuons of L0ans to Participants:
An};Ioan by the Plan to a Participant under Section 8.01 of the Plan shall satisfy the following requirements:
(a) Availability. Loans shalt be made available to all participants on a reasonably equivaleht basis.
(b) Interest Rate. Loans must be adequately secured and bear a reasonable interest rate.
(c) Loan Limit. No participant loan shall exceed the present value of the Participant's Account.
(d) Foreclosure. In the event of default on any installment payment, the outstanding balance of the
loan shall be a deemed distribution. In such event, an actual distribution of a plan loan offset
amount will not occur until a distributable event occurs in the Plan.
(e) Reduction of Account. Notwithstanding any other provision ofthls Plan, the portion of the
Partidpa:nt's Account balance used as a security interest held by the Plan by reason of a loan
outstanding to the Participant sh~ be taken into account for purposes of determining the
amount of the Account balance payable at the time of death or distribution, but only if the
reduction is used as repayment of the loan.
13
(f) Amount of Loan. At the time the loan is made, the principal amount of the loan pins the out-
standing balance (principal pins accrued interest) due on any other outstanding loans to the
Participant from the Plan and from all other plans of the Employer that are qualified employer
plans under Section 72(p)(4) of the Code shall not exceed the lesser of.'
(1) $50,000, reduced by the excess (if any) of
(a) The highest outstanding balance of loans from the Plan during the one (1) year
period ending on the day before the date on which the loan is made, over
(b) The outstanding balance of loans from the Plan on the date on which such loan
is made; or
(2) One-half of the value of the Participant's interest in all of his or her Accounts under this
Plan.
(g) Application for Loan. The Participant must give the Employer adequate written notice, as
determined by the Employer, of the amount and desired time for receiving a loan. No more than
one (1) loan may be made by the Plan to a Participant's in any calendar year. No loan shall be
approved if an existing loan from the Plan to the Participant is in default to any extent.
(h) Length of Loan. Any loan issued shall require the Participant to repay the loan in substantially
equal installments of principal and interest, at least monthly, over a period that does not exceed
five (5) years from the date of the loan; provided, however, that if the proceeds of the loan are
applied by the Participant to acquire any dwelling unit that is to be nsed within a reasonable time
(determined at the time of the loan is made) after the loan is made as the principal residence of
the Participant, the five (5) year limit shall not apply. In this event, the period of repayment shall
not exceed a reasonable period determined by the Employer. Principal installments and interest
payments otherwise due may be snspended for up to one (I) year during an authorized leave of
absence, if the promissory note so provides, but not beyond the original term permitted under
this subsection (h), with a revised payment schedule (within such term) instituted at the end of
such period of suspension.
(i) Prepayment. The Participant shall be permitted to repay the loan in whole or in part at any time
prior to maturity, without penalty.
(j) Promissory Note. The loan shall be evidenced by a promissory note executed by the Participant
and delivered to the Employer, and shall bear interest at a reasonable rate determined by the
Employer.
(k) Security. The loan shall be secured by an assignment of the participant's fight, tide and interest
in and to his or her Account.
(1) Assignment or Pledge. For the purposes of paragraphs (f) and (g), assignment or pledge of any
portion of the Participant's interest in the Plan and a loan, pledge, or assignment with respect to
any insurance contract purchased under the Plan, will be treated as a loan.
14
(m) Other Terms and Conditions. The Employer shall fix such other terms and conditions of the
~ loan as it deems necessary to comply with legal requirements, to maintain the qualification of
the Plan and Trust under Section 457 of the Code, or to prevent the treatment of the loan
for tax purposes as a distribution to the Participant.
The Employer, in its discretion for any reason, may also fix other terms and conditions of the loan, indud-
ing, but not limited to, the provision of grace periods following an event of default, not inconsistent with the
provisions of this Article and Section 72(p) of the Code, and any applicable regulations thereunder.
8.03 Participant Loan Accounts:
Upon approval of a loan to a Participant by the Employer, an amount not in excess of the loan
shall be transferred from the Participant's other investment fund(s), described in Se%ion 6.05 of
the Plan, to the Participant's Loan Account as of the Accounting Date immediat~ely i3receding
the agreed upon date on which the loan is to be made.
(b)
The assets of a Participant's Loan Account may be invested and reinvested only in promissory
notes received by the Plan from the Participant as consideration for a loan permitted by Section
8.01 of the Plan or in cash. Uninvested cash balances in a Participant's Loan Account shall not
bear interest. Neither the Employer, the Administrator, nor any other person shall be liable for
any loss, or by reason of any breach, that results from the Participant's exercise of such control.
(c) Repayment of principal and payment of interest shall be made by payroll deduction or, where
repayment cannot be made by payroll deduction, by check, and shall be invested in one (1) or
more other investment funds, in accordance with Section 6.05 of the Plan, as of the next Ac-
counting Date after payment thereof to the Trust. The amount so invested shall be deducted
from the Participant's Loan Account
(d) The Employer shall have the authority to establish other reasonable rules, not inconsistent with
the provisions of the Plan, governing the establishment and maintenance of Participant Loan
Accounts.
Artide IX. Non-Assignability
9.01 In General: Except as provided in Artide VIII and Section 9.02, no Participant'or Beneficiary shall
have any right to commute, sell, assign, pledge, transfer or otherwise convey or encumber the right to receive
any payments hereunder, which payments and rights are expressly declared to be non-assignable and non-
transferable.
9.02 Domestic Reladon~ Orders:
Allowance of Transfers: To the extent required under a final judgment, decree, or order (indud-
ing approval of a property settlement agreement) that (i) relates to the provision of child support,
alimony payments, or marital property rights and (ii) is made pursuant to a state domestic
relations law, any portion ofa Partidpant's Account may be paid or set aside for payment to a
spouse, former spouse, child, or other dependent of the Participant. Where necessary to carry
out the terms of such an order, a separate Account shall be established with respect to the spouse,
former spouse, or child who shall be entitled to make investment selections with respect thereto
in the same manner as the Partidpant; any amount so set aside for a spouse, former spouse, or
child shall be paid out in a lump sum at the earliest date that benefits may be paid to the Partici-
pant, unless the order directs a different time or form of payment. Nothing in this Section shall
be construed to authorize any amount to be distributed under the Plan at a time or in a form
that is not permitted under Section 457(b) of the Code. Any payment made to a person pursu-
ant to this Section shall be reduced by any required income tax withholding.
(h)
Release from Liability to Participant: The Employer's liability to pay benefits to a participant
shall be reduced to the extent that amounts have been paid or set aside for payment to a spouse,
former spouse, or child pursuant to paragraph (a) of the Section. No such transfer shall be
effectuated unless the Employer or Administrator has been provided with satisfactory evidence
that the Employer and the Administrator are released from any further daim by the Participant
with respect to such amounts. Th~ Pas'ficipant shall be deemed to have released the Employer
and the Administrator from any claim with respect to such amounts, in any case in which (i) the
Employer or Administrator has been served with legal process or otherwise joined in a proceed-
ing relating to such transfer, (ii) the Participant has been notified of the pendency of such pro-
ceeding in the manner prescribed by the law of the jurisdiction in which the proceeding is pend-
ing for service of process in such action or by mail from the Employer or Administrator to the
Participant's last known mailing address, and (iii) the Participant fails to obtain an order of the
court in the proceeding relieving the Employer or Administrator from the obligation to comply
with the judgment, decree, or order.
(c)
Participation in Legal Proceedings: The Employer and Administrator shall not be obligated to
defend against or set aside any judgement, decree, or order described in paragraph (a) or any
legal order relating to the garnishment of a Participant's benefits, unless the full expense of such
legal action is borne by the Participant. In the event that the Participant's action (or inaction)
nonetheless causes the Employer or Administrator to incur such expense, the amount of the
expense may be charged against the Participant's Account and thereby reduce the Employer's
obligation to pay benefits to the Participant. In the course of any proceeding relating to divorce,
separation, or child support, the Employer and Administrator shall be authorized to disclose
information relating to the Participant's Account to the Participant's spouse, former spouse,
dependent, or child (including the legal representatives of the spouse, former spouse, or child), or
tO a court.
Article X. Relationship to other Plans and l~mployment Agreements
This Plan serves in addition to any other retirement, pension, or benefit plan or system presently in existence
or hereinafter established for the benefit of the Employer's employees, and participation hereunder shall not
affect benefits receivable under any such plan or system. Nothing contained in this Plan shall be deemed to
constitute an employment contract or agreement between any Participant and the Employer or to give any
Participant the right to be retained in the employ of the Employer. Nor shall anyihing herein be construed
to modifi/the terms of any employment contract or agreement between a Participant and the Employer.
16
Article XI. Amendment or Termination of Plan
The Employer may at any time amend this Plan provided 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 Admin-
istrator 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 ai an~ tlme Pr0P°~ean amendment to the Plan by an instrument in writing trans-
mitted to the Employer at least 3Qdays before the effective date o£the amendment. Such amendment shall
become effective unless, within such 30-day period, the Employer 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 here-
Except as may be required to maintain the status of the Plan as an eligible deferred compensation plan under
Section 457(b) of the Code or to comply with other applicable laws, no amendment or termination of the
Plan shall divest any Participant of any rights with respect to compensation deferred before the date of the
amendment or termination.
Article XII. Applicable Law
This Plan and Trust shall be construed under the laws of the state where the Employer is located and is
established with the intent that it meet the requirements of an "eligible deferred compensation plan" under
Section 457(b) of the Code, as amended. The provisions of this Plan and Trust shall be interpreted wherever
possible in conformity with the requirements of that Section of the Code.
In addition, notwithstafi~ding any provision of the Plan to the contrary, the Plan shall be administered in
compliance with the requirements of Code Section 414(u).
Article XIII. Gender and Number
The masculine pronoun, whenever used herein, shall indude the feminine pronoun, and the singular shall
include the plural, except where the context requires otherwise.
18
ICMA RE IREMEN CORPORATION
DECLARATION
OF TRUST
ICMA RETIREMENT CORPORATION
The public service Vantagepoint® since t972
DECLARATION OF TRUST
This Declaration of Trust (the "Group Trust Agreement") is made as of the 19th day of May, 2001, by
YantageTmst Company, which &dares itself to be the sole Trustee of the trust hereby created.
WHEREAS, the ICMA Retirement Trust was created as a vehide for the commingling of the assets of
governmental plans and governmental units described in Section 818(a)(6) of the Internal Revenue Code of
1986, as amen&d, pursuant to a Dedaration of Trust dated October 4, 1982; as subsequently amended, a
copy of which is attached hereto and incorporated by reference as set out below (the "ICMA Declaration');
and
WHEREAS, the trust created hereunder (th.e =Group Trust') is intended to meet the requirements of Rev-
enue Ruling 81-100, 1981-1 C.B. 326, and is established as a common trust fund within the meaning of
Section 391:1 of Title 35 of the New Hampshire Revised Statutes Annotated, to accept and hold for invest-
ment purposes the assets of the Deferred Compensation and Qualified Plans held by and through the ICMA
Retirement Trust.
NOW;, THEREFORE, the Group Trust is created by the execution of this Declaration of Trust by the
Trustee and is established with respect to each Deferred Compensation and Qualified Plan by the transfer to
the Trustee of such Plan's assets in the ICMA Retirement Trust, by the Trustees thereof, in accord with the
following provisions:
Incorporation of ICMA Declaration by Reference; ICMA By-Laws. Except as otherwise
provided in this Group Trust Agreement, and to the extent not inconsistent herewith, all provi-
sions of the ICMA Declaration are incorporated herein by reference and made a part hereof, to
be read by substituting the Group Trust for the Retirement Trust and the Trustee for the Board of
Trustees referenced therein. In this respect, unless the context dearly indicates otherwise, all
capitalized terms used herein and defined in the ICMA Dedaration have the meanings assigned
to them in the ICMA Declaration. In addition, the By-Laws of the ICMA Retirement Trust, as
the same may be amended from time-to-time, are adopted as the By-Laws of the Group Trust to
the extent not inconsistent with the terms of this Group Trust Agreement.
Notwithstanding the foregoing, the terms of the ICMA Declaration and By-Laws are further
modified with respect to the Group Trust created hereunder, as follows:
any reporting, distribution, or other obligation of the Group Trust vis-i-vis any
Deferred Compensation Plan, Qualified Plan, Public Employer, Public Employer
Trustee, or Employer Trust shall be deemed satisfied to the extent that such
obligation is undertaken by the ICMA Retirement Trust (in which case the obligation
of the Group Trust shall run to the ICMA Retirement Trust); and
(D
all provisions dealing with the number, qualification, decfion, term and nomination
of Trustees shall not apply, and all other provisions relating to trustees (induding, but
not limited to, resignation and removal) shall be interpreted in a manner consistent
with the appointment of a single corporate trustee.
2.. Compliance with IL-venue h'oa~lu~e 81-100. The requirements of Revenue Procedure 81-
~100 are applicable to the Group Trust as follows:
(a) Pursuant to the terrni?of this Group Trust Agreement and Article X of the By-Laws,
investment in the Group Trust is limited to assets of Deferred Compensation and
Qualified Plans, investing through the lC/vIA Retirement Trust.
(b) Pursuant to the By-Laws, the Group Trust is adopted as a part of each Qualified Plan
that invests herein through the ICMA Retirement Trust.
(c) In accord with the By-Laws, that part of the Group Trust's corpus or income which
equitably belongs to any Deferred Compensation and Qualified Plan may not be
used for or diverted to any purposes other than for the exclusive benefit of the Plan's
employees or their beneficiaries who are entitled to benefits under such Plan.
(d) In accord with the By-Laws, no Deferred Compensation Plan or Qualified Plan may
assign any or part of its equity or interest in the Group Trust, and any purported
assignment of such equity or interest shall be void.
Governing Law. Except as otherwise required by federal, state or local law, this Declaration of
Trust (including the ICMA Dedaradon to the extent incorporated herein) and the Group Trust
created hereunder shall be construed and determined in accordance with applicable laws of the
State of New Hampshire.
4. Judicial Proceedings. The Trustee may at any time initiate an action or proceeding in the appro-
priate state or federal courts within or outside the state of New Hampshire for the settlement of
its accounts or for the determination of any question of construction which may arise or for
iustrucdons.
IN WITNESS WHEREOF, the Trustee has executed this Declaration of Trust as of the day and year first
above written.
VANTAGETRUST COMPANY
Name: Paul E Gallagher
Title: Assistant Secretary
21 :
777 North Capitol Street. NE
Washington, DC 20~2-424~
FAX 1-202-9~2-4601
Toll Free 1-800-669.7400
En Espafiol Ilam$ al 1-800-669-8215
Internet: htt,0://ve~N.icmarc.or g
November 200~
De~r Employer:
The ICMA Retirement Corporation (ICMA-RC) is providing you this package of materials m help you implement the final regulations
governing Secdon 457 deferred compensation plans that were recendy issued by the Internal Revenue Service. In most cases, these provi-
sions are effective retroactively m January 1, 2002, as specified by the regulations.* For the vast majority of ICMA-RC's participating
employers, no formal action will be required and these new 457 plan provisions will automatically be implemented.
As your 457 deferred compensation plan provider, ICMA-RC will rake care of the majority of additional administrative tasks associated
with the recently finalized regulations, to the extent this is feasible. This will indude updadng forms, brochures, and our VantageLink
website. Included in this package is the new ICMA-RC 457 deferred compensation plan document. We have designed the plan to be the
most flexible allowed under ~e law.
ICMA-RC is using a "negative election" process for adopdon of the regulatory changes. Under this process, you are given 30 business days
from the date this packet was mailed to review the materials in the packet - including the ICMA-RC model deferred compensation plan
document.
If you decide to use the ICMA-RC model deferred compensation plan document you will not have to nodfy ICMA-RC, and the
changes will be considered automat cally adopted into your plan 30 days from the postmark date on this packet.
Note: If you wish to make changes to an aspect of your 457 plan that cannot be accommodated by this Section 457 Regulatory Implemen-
radon Packet, for example, by adding a loan provision, please contact Employer Services at 1-800-326-7272.
ICMA-RC also used a negadve election process for the amendment of our 457 plan document following the enactment of the Economic
Growth and Tax Relief Reconciliation Act of 2001 ("EGTRRA"). Over ninety-five percent of our 457 employers were able to use the
negative election, did not have to notify ICMA-RC, and the EGTRRA law changes were automatically implemented in their 457 plans. A
shnilar result is expected with the i~plementation of the 457 regulations.
ICMA-RC modal plan
perform an o
Attachment D for more i
may
If you do not plan to adopt the
r ICMA-RC and forward a copy of your revised plan document to us. ICMA-RC will
to ensure that we can administer your plan in accordance with your intentions. See
~ advantage of ICMA-RC's ea~ plan adoption proce~, you
plan document at this time.
outlined below:
Step,
, we suggest you follow the three-step process
plan document.
.'gulations must change before the federal
of information regarding your jurisdiction's
?ontinued on back)
iate of ICMA-RC, member NASD/SIPC.
777 North Capitoi Street. NE
Washington, DC 20002-4240
FAX 1-202-962-4E01
Tell Free 1-800-669-7400
En Espa~ol tlame al 1-800-669~216
Internet: http://wv~v.icmarc.or§
November 2003
Dear Employer:
The ICMA Retirement Corporation (ICMA-RC) is providing you this package of materials m help you implement the final regulations
governing Section 457 deferred compensation plans that were recendy issued by the Internal Revenue Service. In most cases, these provi-
sions are effective retroactively to January 1, 2002, as specified by the regulations.* For the vast majority of ICMA-RC's participating
employers, no formal action will be required and these new 457 plan provisions will automatically be implemented.
As your 457 deferred compensation plan provider, ICMA-RC will take care of the majority of additional administrative tasks associated
with the recendy finalized regulations, to the extent this is feasible. This will include updating forms, brochures, and our VantageLink
website, lnduded in this package is the new ICMA-RC 457 deferred compensation plan document. We have designed the plan to be the
most flexible allowed under tl3e law.
ICMA-RC is using a ~negative election~ process for adoption of the regulatory changes. Under this process, you are given 30 business days
from the date this packet was mailed to review the materials in the packet - including the ICMA-RC modal deferred compensation plan
document.
If you decide to use the ICMA-RC model deferred compensation plan document you will not have to notify ICMA-RC, and the
changes will be considered automatically adopted into your plan 30 days from the postmark date on this packet.
Note.. If you wish to make changes to an aspect of your 457 plan that cannot be accommodated by this Section 457 Regulatory Implemen-
tation Packet, for example, by adding a loan provision, please contact Employer Services at 1-800-326-7272.
ICMA-RC also used a negative election process for the amendment of our 457 plan document following the enactment of the Economic
Growth and Tax R_elief Reconciliation Act of 2001 (~EGTRRA'). Over ninety-five percent of our 457 employers were able to use the
negative election, did not have to notify ICMA-RC, and the EGTRRA law changes were automatically implemented in their 457 plans. A
similar result is expected with the implementation of the 457 regulations.
ICMA-RC model
perform an o
Attachment D for more i
m~y wlsh te
To determine what acti0~i i
outlined below:
~57 re_~flations and other post-EGTRRA chan~. If you do not plan to adopt the
r ICMA-RC and forward a copy of your revised plan document to us. ICMA-RC will
to ensure that we~ administer your plan in accordance with your intentions. See
~ of ICMA-RC's easy plan adoption process, you
, we suggest you follow the three-step process
Step
document.
', before the federal
e or local restrictions on the adoption of the recently
source of information regarding your jurisdiction's
(continued on back)
securities are dislfibuted by ICMA-RC Services, U.C., e broker-dealer affiliate of ICMA-RC, member NASD/SIPC.
Step 3: Determine whether any formal action is required m amend yom plan to implement the 457 regulations, depending upon
the procedures you must follow. If you adopt the ICMA-RC model document, you will not need to notify us.
In addidon rathe plan document, tCMA-RC has developed additional materials to assist you in implementing the changes under the new
regulations. This material is enclosed and contains information that you can use for your internal review of how the new rules will impact
your plan and your employees. (See Table of Contents.) Again, note that no notification to ICMA-RC is required if you adopt our
model document.
For your convenience, a postage-paid return envelope is endosed for any documents you need to return to ICMA-RC.
We believe that this comprehensive package will address the vast majority of questions associated with implementing the'regulations and
put you in a favorable position to adopt the new provisions.
ICMA-RC's Employer Services Unit is always available to speak to you about your specific concerns. Please call us at 1-800-326-7272.
Sincerely,
Jerry Backemtoc
Vice President
Investor Services
* How~, for taxable years beginning after December 31, 2001 and boSre January L 2004, a plan will nat)~il to be an ek~ible plan if it is operattd in
accontance with a reatonable, good faith interpretation of lnternal Revenue Code Section 457(b).
TABLE OF CONTENTS
Page
Attachment A
An overview of the recently finalized 457 regulations, a reference to the appropriate ICMA-RC plan
document section, the purpose of the provision, and a summary of additional administrative tasks you
can expect as a result of the new regulations ........................................................................................................ 5
~'h ment B
An analysis of the suggested implementation steps required to adopt the 457 regulatory changes ........................ 15
Attachment C
An easy-m-follow chart to help guide you to the correct action if formal action is required for adoption
of the revised plan document. Suggested resolutions and suggested affirmative statements of plan
amendment are included, which you can use if formal action is required ............................................................ 17
Attachment D
A response form for employers opdng either to use the ICMA-RC model plan document with modifications
or their own individually designed plan document .............................................................................................. 27
4
7
10
11
12
13
ATTACHMENT B:
457 REGULATORY CHANGES
SUGGESTED IMPLEMENTATION STEPS
The following three steps can be ~llowed to simpli~ your implementation of the 457 regulatory changes.
Step 1: Review the new ICMA-RC 457 model deferred compeusadon plan document. (See accompanying booklet.)
If you curtenfly use the ICMA-RC Section 457 deferred compensation plan document, you will find the language necessary for you to
adopt the 457 regulations already incorporated in the amended plan document. Using the ICMA-RC plan document will make your
implementation of the regulations straightforward.
If you do not use the 457 plan document, but use your own plan document, please refer to Attachment D for instructions and additional
information.
ICMA-RC will submit the revised 457 model plan document m the Internal Revenue Service (IRS) through a partidpating employer, to
obtain a private letter ruling. ICMA-RC will be operating under the new "interim" plan document until the private letter ruling is
obtained. This will ensure that you and your participants can take immediate advantage of the 457 regulations.
Normally, ICMA-RC would not begin operating under a 457 plan document until a favorable private letter ruling is received from the IRS,
which could take as long as a year. However, because the existing plan document generally was amended simply to conform m the new 457
regulations, ICMA-RC is comfortable opetadng under this amended plan document. ICMA-RC will inform you when the private letter
ruling is obtained.
Step 2: Consult with legal counsel to determine whether any state or local l~w~ or rcguladous must change before the federal s~don
457 regnlarious may be adopted. [This step will not apply for the majority of employers.]
While ICMA-RC is not aware of any state statutes, regulations or local ordinances that conflict with the provisions of the recently finalized
457 regulations, you may want to consult your legal counsel. He or she may wish to review the state or local government's laws or regula-
tions governing your deferred compensation plan.
If you are an employer with a state and/or local law issue, a sample resolution and statement of aftlrmadve action are provided for your use,
if required (see Attachment C). These documents were prepared to allow you to adopt the 457 regulations now, pending enactment of any
required state or local statutory or regulatory amendments permitting the changes. See Step 3 below for further information.
Step 3: Determine whether formal action is required to mend your plan to implement the 457 regulations, depending upon the
procedures you must follow. If you adopt the ICMA-RC 457 model deferred compensation plan document, you will not need to notify
ICMA-RC.
Under the provisions of ICMA-RC's prior 457 plan document (Axtide XI), the amendments contained in the new revised plan document
are deemed to be adopted by you unless you notify ICMA-RC within 30 days of the postmark date on this plan implementation package.
In this situation, the changes are considered implemented automatically and employers do not need to notify ICMA-RC. Please retain the
new plan document as well as a copy of the previous plan document.
Employers that wish to either revise the ICMA-RC model plan document or use an individually designed plan document should refer to
Attachment D for instructions and information. However, you may wish to consult with legal counsel to determine if formal employer
action is necessary. Some state or local statutes may require the passage of a council resolution. Others may simply require an af~rmative
statement of plan amendment. Attachment C contains two suggested resolutions and two suggested affirmative statements of plan amend-
ment to accommodate your particular situation. Note that if you intend to adopt the ICMA-RC 457 model deferred compensation plan
document, you do not need to provide ICMA-RC with a copy of your resolution or affirmative statement. These documents are for your
internal records only.
The following chart (Attachment C) will assist you in determining the appropriate formal action, if any, necessary to adopt changes to your
457 plan. If, after reading the chart, you have any questions about implementing the regulatory changes or the plan amendment process,
please call out Employer Services Unit at 1-800-326-7272.
15
ATTACHMF~NT C:
RECOMMENDED ACTIONS
FOR AMENDING YOUR 457 PLAN
Are you adopting the
ICMA-RC model
457 plan document?
Do you have any state
and/or local laws that
conflict with the
457 regulatory changes?
No
What forlnal action are
you required to take
by state or local law
to amend your 457 plan?
None
Action
Recommended
None.*
Yes No A~rmafive statement Execute Affirmative Statement A
of amendment (Attachment C1) for your files
Yes No Passage of council Execute Resolution A (Attachment
resolution C2) for your files only.*
If you have any questions about implementing the 457 regulatory changes or the plan amendment process, please call ICMA-RC's Em-
ployer Services Unit at 1-800-326-7272.
* Your plan will be considered adopted 30 days from the postmark date on this packet.
17
ATTACHMENT CI:
SUGGES'~D AFFIRMATIVE STATEMENT A
FOR AMENDING A DEFERRED COMPENSATION PLAN
State:
Phn Numar.
Name of Employer:
Az a duly authorized agent of the above named Employer, I hereby
AMEND and restate the Employer's deferred compensation plan (the "Plan") in the form of:. (Select one)
~l The ICMA Retirement Corporation Deferred Compensation Plan and Trust
[~l The Plan and Trust provided by the Employer (executed copy attached hereto)
SPECIFY that the assets of the Plan shall be held in trust, with the Employer serving as trustee ("Trustee"), for the exclusive benefit of the
Plan participants and their benefidaries, and the assets shall not be diverted to any other purpose. Indicia of the Fanployer's benefidal
ownership of Plan assets held in VantageTrust further shall be held for the exclusive benefit of the Plan participants and their beneficiaries;
AND AFFIRM that the Employer hereby agrees to serve as Trustee under the Plan.
(Tide of Designated Agent)
(Signature)
If you adopt the ICMA-RC 457 model plan document without changes,
there is no need to mail this affirmative statement to ICMA-RC.
If you adopt your own individually designed plan document, mall this executed
ai~armadve statement in the enclosed postage-paid envelope or to:
ICMA Retirement Coqoorafion
Attention: New Busines~ Analyst
777 North Capitol Street NE
Washington, DC 200024240
19
20
ATTACHMF. NT C2:
SUGGESTED RESOLUTION A
FOR A LEGISLATIVE BODY RI~I ATING TO AMENDING
A DEFFERED COMPENSATION PLAN
Name of Employer: State:
Plan Number. ~ 0
Resolution of the above named Fanployer ("Employer")
WHEREAS, the Employer has employees rendering valuable services; and
WHEREAS, the Employer has established a deferred compensation plan for such employees that serves the interest of the Employer by
enabling it to provide reasonable retirement security for its employees, by providing increased flexibility in its personnel management
system, and by assisting in the attraction and retention of competent personnel; and
WHEREAS, the Employer has determined that the continuance of the deferred compensation plan will serve these objectives; and
WHEREAS, amendments to the Intemal 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 that the Employer hereby amends and restates the deferred compensation plan (the "Plan") in
the form of: (Select one)
[~l The ICMA Retirement Corporation Deferred Compensation Plan and Trust
[~ The Plan and Trust provided by the Employer (executed copy attached hereto)
BE IT FURTHER RESOLVED that the assets of the Plan shall be held in trust, with the Employer serving as trustee (~Trustee~), for the
exclusive benefit of Plan participants and their beneficiaries, and the assets shall not be diverted to any other purpose. Indicia of the
Trusree's beneficial ownership of Plan assets held in VantageTrust further shall be held for the exclusive benefit of the Plan participants and
their beneficiaries;
BE 1T FURTHER RESOLVED that the employer hereby agrees to serve as Trustee under the Plan.
I, , Clerk of the (City, County, etc.) of.
hereby certify that the foregoing resolution, proposed by (Council Member, Trustee, etc.)
passed and adopted in the (Council, Board, etc.)
at a regular meeting thereof assembled this __ day of
following vote:
of the (City, County, etc.) of
,20
, by the
AYES:
NAYS:
ABSENT:
(Seal)
Clerk of the (City, County; etc.)
If you adopt the ICMA-RC 457 model plan document without changes,
there is no need to mail this resolution to ICMA-RC.
If you adopt your own individually designed plan document, mail this executed resolution
in the endosed postage-paid envelope or to:
ICMA Retirement Corporation
Attention: New Business Analyst
777 North Capitol Street NE
Washington, DC 200024240
21
22
ATTACHMENT C3:
SUGGESTED AFFIRMATIVE STATEMENT B
FOR AMENDING A DEFERRED COMPENSATION PLAN
To be used by emplvyers in jurisdictiom requiring amendmen~s
to state or local law
Name of Eraployer: State: Plan Number: 3 0 __ __
.4a a duly authorized agent of the above named Employer, I hereby
AMEND and restate the Employer s deferred compensation plan (the Plan ) in the form of: (Select one/
The ICivlA Retirement Corporation Deferred Compensation Plan and Trust
The Plan and Trust provided by the Employer (executed copy attached hereto)
Notwithstanding the t'bregoing, Plan provisions shall become effective once the appropriate body makes the necessary statutory or regula-
tory amendments permitting the provisions.
SPECIFY that the assets of the Plan thai be held in trust, with the Employer serving as trustee ("Trustee"), for the exclusive benefit of the
Plan participants and their beneficiaries, and the assets shall not be diverted to any other purpose. Indicia of the Employer's beneficial
ownership of Plan assets held in VantageTrust further shall be held for the exclusive benefit of the Plan participants and their beneficiaries;
AND AFFIRM that the Employer hereby agrees to serve as Trustee under the Plan.
Date
(Title of Designated Agent)
(Signature)
If you adopt the ICMA-RC 457 model plan document without changes,
there is no need to mail this afllrmadve statement to ICMA-RC.
If you adopt your own individually designed plan document, mail this affirmative statement
in the enclosed postage-paid envelope or to:
ICMA Retirement Corporation
Attention: New Business Analyst
777 North Capitol Street NE
Washington, DC 200024240
23
24
ATTACHMENT C4:
SUGGESTED RESOLUTION B
FOR A LEGISLATIVE BODY RELATING TO AMENDING
A DEFERRED COMPENSATION PLAN
To be used by employe~ in jurisdictions requiring amendments to state or local law or regulations
Nme of Employer..
State: Plan Number. 3 0
Resolution of the above named Employer ("Employer")
WHEREAS, the Employer has employees rendering valuable services; and
WHEREAS, the Employer has established a deferred compensation plan for such employees that serves the interest of the Employer by
enabling it to provide reasonable retirement security for its employees, by providing increased flexibility in its personnel management
system, and by aasisfing in the attraction and retention of competent personnel; and
WHEREAS, the Employer has determined that the continuance of the deferred compensation plan will serve these objectives; and
WHEREAS, amendments to the Internal Revenue Code have been enacted that require changes to the structure of and allow enhancements
of the benefits of the deferred compensation plan:
NOWTHEREFORE BE IT RESOLVED that the Employer hereby mends and restates the deferred compensation plan (the "Plan") in
the form of.' (Select one)
The ICMA Retirement Corporation Deferred Compensarion Plan and Trust
The Plan and Trust provided by the Employer (executed copy attached hereto)
Notwithstanding the foregoing, Plan provisions shall become effective once the appropriate body makes the necessary statutory or regula-
tory amendments permitting the provisions.
BE IT FURTHER RESOLVED that the assets of the Han shall be held in trust, with the Employer serving as trustee (~Trustce'), for the
exclusive benefit of Plan participants and their beneficiaries, and the assets shall not be diverted to any other purpose. Indicia of the
Trustee's beneficial ownership of Plan assets held in VantageTrust further shall be held for the exclusive benefit of the Plan participants and
their benefidaries.
BE IT FURTHER RESOLVED that the employer hereby agrees to serve as Trustee under the Plan.
I, , Clerk of the (City, County, etc.) of
hereby certify that the foregoing resolution, proposed by (Council Member, Trustee, etc.)
passed and adopted in the (Council, Board, etc.)
at a regular meedng thereof assembled this __
by the following vote:
, do
, was duly
of the (City, Count)~ etc.) of
day of __, 20 ,
AYES:
NAYS:
ABSENT:
(Seal)
Clerk of the (City, County, etc.)
If you adopt the ICMA-RC 457 model plan document without changes,
there is no need to mail this resolution to ICMA-RC.
If you adopt your own individually designed plan docttment, mail this executed resolution
in the enclosed postage-paid envelope or to:
ICMA Retirement Corporation
Attention: New Business Analyst
777 North Capitol Street NE
Washington, DC 200024240
25
26
AI-IACI-IMENT D:
STATEMENT OF INTENT AND ADDITIONAL INFORMATION FOR
EMPLOYERS NOT ADOPTING THE ICMA-RC MODEL PLAN DOCUMENT
Employers that choose to provide their own individually designed plan document, or to use the ICMA-RC model plan document with revisions,
most follow these steps:
Amend your plan document to conform to the 457 regulations. You may wish to use the amended language in the ICMA-RC plan document
as a modal. See Attachment A for references to die appropriate ICMA-RC plan document sections.
2. Determine if formal action is required to adopt your revised document. You may use the suggested resolutions or affirmative statements
found in Attachment C if formal action is required.
3. Return the following items to ICMA-RC in the enclosed postage-paid envelope (or to: ICMA Retirement Corporation, Attention: New
Bosiness Analyst, 777 North Capitol Street NE, Washington, DC 200024240) within 30 days from the postmark date on this package:
· Completed Statement oflntent (see following pages)
· Copy of executed resolution or al~rmative statement (if required)
· Copy of your amended plan document.
If your revised plan document is not yet available, please return the Statement of Intent immediately, and send the remaining items as soon as
administratively feasible.
Note that your plan must be in good faith ~ with the new regulations effective January 1, 2002 as prescribed in the regula-
tions, even if your plan document is not revised as of that date. Your plan document should be amended as soon as possible.
ICMA-RC will perform an operational review of yont plan document to ensure that we are able to administer it in accordance with your inten-
tioos. A Letter of Plan Acceptance will be returned to you a~er our review. Note that ICMA-RC cannot take responsibility for determining
whether or not your amended document fully complies with the 457 regulations or if it meets all of the requirements for 457 plans. You are
responsible for ensuring your plan meets these requirements.
ADDITIONAL INFORMATION
Employers that do not cusrent~ use the ICMA-RC 457 model plan document may want to consider conve~xing to the IC2vIA-RC model
plan document. You will find that using the model plan docurnent makes adopting the new law changes easie~ In addition:
· The ICMA-RC plan document is designed to provide employers and participants with as much flexibility as possible within IRS
guidelines.
· Adopting the ICMA-RC plan document releases you from the burden and cost of continually reviewing and revising your plan document
in response to changes in the Internal Revenue Code (IRC) and related regulations. ICMA-RC maintains the document in compliance
with all IRC and regulatory requirements.
· ICMA-RC always seeks a favorable private letter ruling from the Internal Revenue Service for the ICMA-RC 457 model plan document.
This is important became a plan deemed ineligible by die IRS could result in a significant tax liability to all plan parfidpants. (Please see
Attachment B for additional information on die statos of our private letter ruling.)
· As a result of the 457 regulatory changes, 457 plan documents became even more similar thos further negating the need for toultiple plan
documents. Prior to EGTRRA, sotoe employers with multiple providers maintained multiple plan documents to allow their plan
participants the flexibility to elect a separate beginning payment date under each of these plan documents. Under current law, there is no
need to maintain two plan documents to allow this additional flexibility.
Information on adopting the ICMA-RC 457 model plan document is available from our Employer Services Unit by calling toll-free 1-800-326-
7272.
Employers using MULTIPLE PLAN PROVIDERS are responsible fur deter~;~ing whether they ate required to antend and ~estate the plan
document for each pmvider's plan.
Many employers with multiple providers consider these providers to be part of one 457 plan. In this case, only one plan document is required, and
only this plan document must be amended for the regulatory changes. If you consider multiple plan providers as providing separate 457 plans, you
most amend and restate the plan document for each provider. You may wish to consult your legal counsel regarding this situation. If you have
multiple plans, you may also wish to consider consolidating all of your plans under the ICMA-RC model plan document.
It should be noted that during the implementation of EGTRRA, many of our participating employers stopped osing their own plan document or
their other 457 plan providers plan document and decided it was easier to consolidate under die ICMA-RC 457 plan document.
27
STATEMENT OF INTENT
INSTRUCTIONS FOR EMPLOYERS NOT ADOPTING THE ICMA-RC MODEL PLAN DOCUMENT
Instructions
· You must complete and return this Statement of Intent to ICMA-RC no later than 30 days from the postmark date on this
package if your 457 deferred compensation plan document differs from ICMA-RC's model deferred compensation plan docu-
ment. Examples are, if
· you are adopting the ICMA-RC model document, but have revised one or more provisions
or
· you are developing your own individually designed plan document.
· If you do not return this form to ICMA-RC, we will assume you are adopting the ICMA-RC model plan document.
· Please attach the following documents to this Statement of Intent prior to mailing to ICMA-RC:
1 a copy of your executed resolution or statement of afflrmative action, if required by your jurisdiction;
2. a copy of your plan document, updated for the regulatory changes outlined in this 457 Regulatory Changes Implementation
Package (see Attachment A).
If your plan document is not yet available, please forward it as soon as possible. Until we receive a copy of your plan document,
we will administer your plan as directed by you on the Statement of Intent. Note that your plan must be in good faith opera-
tional compliance with the final 457 regulations effective January 1, 2002, even though your plan document was nor revised as
of that date. Your plan document should be amended as soon as possible.
ICMA-RC will perform an operational review of your plan document to ensure that we can administer it in accordance with your inten-
tions.
· Please keep a copy of this Statement of Intent for your records.
The completed Statement of Intent and attachments should be mailed in the enclosed postage-paid envelope, or to:
ICMA Retirement Corporation
Attention: New Business Analyst
777 North Capitol Street NE
Washington, DC 20002-4240
28
Name of Employer:
I. Employer Intentions
Check one:
STATEMENT OF INTENT
SUMMARY OF CHANGES TO AN INDMDUAI.!Y DESIGNED PLAN
PAGE 1
State: Plan Number:. 3 0
[~ The employer is adopting (or intends to adopt) the ICMA-RC 457 deferred compensation plan document with revisions to
certain provisions.
[~} The employer is adopting (or intends to adopt) an individually designed plan document which has been updated to incorpo-
rate the revised 457 regulations.
II. Employer Instructions Regarding Plan Administration
Check one:
[~ The employer instructs ICMA-RC to administer this plan in accordance with this statement of intent.
[~ The employer instructs ICMA-RC to administer this plan as if the employer had adopted the ICMA-RC model plan docu-
ment.
If neither alternative is checked, ICMA-RC will administer your plan as if'you had adopted the ICMA-RC model plan document.
III. Summary of Optional Provisions
Please indicate the options you have chosen. Please note that a choice of ~Will" for these items conforms to the options in the ICMA-RC
model plan document. See Attachment A for a summary of the regulatory provisions related to these options.
1)Deemed or Sidecar IRA: The Plan
[~1 Will [~ Will Not
offer a Sidecar IRA program. (See Attachment A for details.)
2)Terminated Plan Participants: The Plan
[~ Will [~1 Will Not
allow terminated participants to consolidate other retirement plan assets induding IRAs in the Plan. (See Attachment A for details.)
3) Please speei~ any other significant differences between your plan and ICMA-RC's revised model plan (See Attachment A for a summary
of the ICMA-RC model document's provisions).
1~. Attachments
Attach the following documents, prior to returning the Statement of Intent to ICMA-RC:
O Copy of executed resolution or aff~.rmative statemem (see Attachmetu C)
{~[ Copy0famended plan document
If your revised plan document is nor yet available, please forward it as soon as possible.
29
Name of Employer:
V. Employer Signature
Nan~e
Date
STATEMENT OF INTENT (CONTINUED)
SUMMARY OF CHANGES TO AN INDMDU~I.IY DESIGNED PLAN
PAGE 2
State: Plan Number. 3 0
Telephone number
Email
The completed Statement of Intent and attachment~ should be mailed in the enclosed postage-paid envelope, or to:
ICMA Retirement Corporation
Attention: New Business Analyst
777 North Capitol Street NE
Washington, DC 200024240
30