HomeMy WebLinkAboutR-97-0048J-97-54
1/13/97
RESOLUTION NO. 9 "7 — 48
A RESOLUTION, WITH ATTACHMENTS, AMENDING AND
RESTATING A CITY OF MIAMI 457 DEFERRED
COMPENSATION PLAN, KNOWN AS THE COPELAND
COMPANIES PLAN- TR UST DECLARATION ( THE
"PLAN"), ATTACHED HERETO AND MADE A PART
HEREOF, TO BRING SAID PLAN INTO COMPLIANCE
WITH CERTAIN NEWLY ENACTED INTERNAL REVENUE
CODE REGULATIONS; AUTHORIZING THE CITY
MANAGER TO EXECUTE ANY' NECESSARY DOCUMENTS,
IN A FORM ACCEPTABLE TO THE CITY ATTORNEY, TO
EFFECTUATE SAID PLAN AMENDMENTS.
WHEREAS to attract and retain competent personnel and to
provide reasonable retirement security for its employees, the
City of Miami, pursuant to Internal Revenue Code provisions,
established a 457 Deferred Compensation Plan known as the
Copeland Companies Plan -Trust Declaration; and
WHEREAS, Congress enacted the Small Business Job Protection
Act and the Health Insurance Portability and Accountability Act
of 1996 ("Acts"), which Acts amended the Internal Revenue Code to
effect changes to the structure of and allow enhancements to the
benefits of said deferred compensation plan; and
WHEREAS, due to said amendments, it is necessary to amend
and restate the Copeland Companies Plan -Trust Declaration to
bring said Plan into compliance with said newly enacted Acts;
CITY C0Mr4jSri0,N
MEETING or
11—lution No,
9 7 ` 8
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
Section 1. The recitals and findings contained in the
Preamble to this Resolution are hereby adopted by reference
thereto and incorporated herein as if fully set forth in this
Section.
Section 2. The Copeland Companies Plan -Trust Declaration
(the "Plan"), attached hereto and made a part hereof, one of the
City of Miami's 457 Deferred Compensation Plans, is hereby
amended and restated to bring said Plan into compliance with
certain newly enacted Internal Revenue Code Regulations.
Section 3. The City of Miami hereby agrees to serve as
Trustee under said Plan and the assets of the Plan are to be held
in trust by said Trustee.
Section 4. The Trustee's beneficial ownership of the
Plan's assets shall be held for the exclusive benefit of the Plan
participants and their beneficiaries and the assets of the Plan
shall not be diverted to or for any other purpose other than as
set forth in said Plan.
Section 5. The Plan shall not permit loans.
Section 6. The City Manager is hereby authorizedY to
execute any necessary documents, in a form acceptable to the City
Attorney, to effectuate said Plan amendments.
l� The herein authorization is further subject to compliance
with all requirements that may be imposed by the City
Attorney, including but not limited to those prescribed by
applicable City Charter and Code provisions.
2 -
97- 48
Section 7. This Resolution shall become effective
immediately upon its adoption.
PASSED AND ADOPTED this 23rd day of January 1.997.
�AROLLO, MAYOR
ATT S I f/T
--7
WALTER J.--FOEMAN
CITY CLERK
PREPARED AND REVIEWED BY:
RAFAEL 0. DIAZ
DEPUTY CITY ATTORNEY
APPROVED AS TO FORM AND CORRECTNESS:
A. QNN J)bD%S; !I
CITY ATTO Y
W1378:BSS
- 3 -
97- 48
.eligible Deferred Compensation Plan
Plan -Trust Declaration
SUMMARY 'TABLE OF CONTENTS
1. Making the Plan-Trust................................................................................................. 4
2. Definitions................................................................................................................ . 5
3. Using the Investments................................................................................................. 7
4. Processing Account ...................................................... ........................... I................... 8
5. Plan -Trustee's duties... ................................................................................................ 8
6. Plan -Trustee's powers................................................................................................. 9
7. Plan -Trustee's limitations........................................................................................ 10
8. Plan -Trustee's compensation..................................................................................... 10
9. Accounts................................................................................................................... 11
10. General provisions................................................................................................... 12
11. Amendment or termination...................................................................................... 18
Making it legal
97- 48
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457b:G:Nati:tnist:96Aug27 page 3
_.1gible Deferred Compensation Plan
Plan -Trust Declaration
1. Making the ]Plan -Trust
1.1 Making this Plan -Trust
This Plan -Trust Declaration is made by and among the Plan Sponsor and the Plan Administrator
and the Plan -Trustee [the `executing parties']. The Plan Sponsor and each Employer wants the
Plan -Trustee to hold the Investments, and wants the Plan -Trustee or the Agent to accept
Contributions and pay Distributions, and the Plan -Trustee and the Plan Administrator are willing
to do so, pursuant to the provisions of the Plan -Trust Declaration.
1.2 Purpose of the Plan -Trust
The purpose of the Plan -Trust is to hold the Investments and any other money or property held for the
purposes of the Plan solely as Plan assets for the purpose of investing Plan Accounts and paying Plan
Distributions.
All parties acknowledge that each Employer has created the Plan -Trust and the executing parties have
made this Plan -Trust Declaration solely to meet the requirement of IRC § 457(b)(6) together with
IRC § 457(g). The Employer and the Plan Admhstrator each acknowledges that the Plan -Trust has
no business or Plan administration purpose other than as stated by � 1.4 ["Exclusive benefit" at
page 4].
1.3 Plan -Trust is irrevocable
Beginning on the date that the Employer executes or adopts the Plan -Trust Declaration, the Plan -Trust
is irrevocable, except to the extent provided by ¶ 10.17 [`Mistaken contributions" at page 15] or by
¶ 11.2 ['Termination ofPlan-Trust"at page 18].
1.4 Exclusive benefit
The Plan and the Plan -Trust are established for the exclusive benefit of Participants and their
Beneficiaries. Except as otherwise permitted by IRC § 457(g), all assets and income of the Plan shall
be held for the exclusive benefit of the Plan's Participants and their Beneficiaries.
1.5 Plan and Plan -Trust tax status
The Plan is intended to be an eligible deferred compensation plan within the meaning of IRC § 457(b),
and the Plan -Trust is intended to be tax-exempt under IRC § 501(a) pursuant to IRC § 457(g).
97— 48
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457b:G:Nat1:tnist:96Aug27
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page 4
Eligible Deferred Compensation Plan
Plan -Trust Declaration
2. Definitions
Whenever used in the Plan -Trust Declaration, each of the following terms has the meaning stated
below.
Any term not defined by this Plan -Trust Declaration that is defined by an Investment or by a group -
trust declaration has the meaning given by the Investment or by the group -trust declaration. Any other
capitalized term in this Plan -Trust Declaration has the meaning given by the Plan, or if not defined by
the Plan, the meaning given by the Internal Revenue Code or by applicable Investment Law.
2.1 "Account"
has the meaning given by the Plan.
2.2 "Agent"
means Copeland Associates, Inc. together with its subsidiaries and affiliates that perform services
regarding the Plan and their successors, but only so long as the Service Agreement is in effect.
2.3 "Beneficiary"
has the meaning given by the Plan.
The use of the term `Beneficiary'shall not constitute such person or entity as a beneficiary under the
Plan -Trust.
2.4 "Business Day"
has the meaning given by the Plan.
means the Internal Revenue IRC of 1986, as amended, and including any Regulations and rulings (or
other Treasury department or IRS guidance of general applicability) under the IRC. Any reference to a
Section of the IRC shall be construed to also refer to any successor provision.
2.6 "Contribution"
has the meaning given by the Plan.
[Generally, a Contribution is the acceptable delivery of money to the Plan -Trustee to be applied under
an annuity or life insurance contract or toward the purchase of Fund Shares.]
The Plan -Trustee is not responsible for the determination or collection of any Contribution required or
permitted by the Plan.
2.7 "Distribution"
has the meaning given by the Plan, and for the purposes of this Plan -Trust Declaration is intended to
exclude any distribution or payment under the Plan -Trust that is not a Distribution under the Plan.
2.8 "Effective Date"
means the first date that any property is held by or. an amount is credited to the Plan -Trust. The
Effective Date shall not be earlier than August 20, 1996.
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45 7b: G: Natl: trust: 96 Aug27
page 5
Eligible Deferred Compensation Plan
Plan -Trust Declaration
2.9 "Employer"
means the Eligible Employer that signs this Plan -Trust Declaration, and otherwise has the meaning
given by the Plan.
Only a state or political subdivision or agency thereof or other organization described in
IRC § 457(e)(1)(A) can be an Employer under the Plan -Trust.
2.10 "Enabling Statute"
means the State statute that grants the Employer legal authority to maintain the Plan.
2.11 "Fund"
has the meaning given by the Plan.
2.12 "Investment"
has the meaning given by the Plan.
2.13 "Investment Law"
has the meaning given by the Plan.
2.14 "Participant"
has the meaning given by the Plan.
The use of the term `Participant'shall not constitute such person or entity as a beneficiary under the
Plan -Trust.
2.15 "Plan"
means the eligible deferred compensation plan maintained by the Employer that signs this Plan -Trust
Declaration.
Solely to the extent necessary under the definitions provisions stated in this Part, the Plan is
incorporated into and made a part of this Plan -Trust Declaration by reference.
2.11.6 "Plan -Trust"
means the legal entity and relationship established by this written Plan -Trust Declaration.
2.17 "Plan -Trust Declaration"
means the legal agreement or declaration stated by this document (including any group -trust
declaration which is incorporated by reference in this Plan -Trust Declaration) together with the
applicable Plan to the extent incorporated by reference).
2.18 "Plan -Trustee"
means the Plan Sponsor if applicable law does not prohibit the Plan Sponsor from serving as the Plan -
Trustee.
To the extent that applicable law prohibits the Plan Sponsor from serving as the Plan -Trustee, the
natural person(s) who signs his/her name on this Declaration on behalf of or as the Plan -Trustee and,
after that individual's separation -from -service with the Employer, the natural person who is the
successor -in -office, unless the Employer previously has delivered to the Agent a written instruction that 4 8
names the Plan -Trustee.
( 8
457b:G:Natl:tnist:96Aug27 r page 6
Eligible Deferred Compensation Plan
Plan -Trost Declaration
2.19 "Plan Administrator"
has the meaning given by the Plan.
2.20 "Plan Sponsor"
has the meaning given by the Plan.
2.21 "Processing Account"
means any bank account maintained by or used by the Plan -Trustee or the Agent according to Part 4
[at page 8].
2.22 "Service Agreement"
means the written agreement between Copeland Associates, Inc. or its successor and the Plan Sponsor
that provides for the Agent to perform services regarding the Plan.
3. Using the Investments
3.1 Plan investments
The Plan -Trustee shall apply for and hold the Investments selected by the Employer.
3.2 Participant -directed investment
In addition to (and riot by limitation upon) the provisions above, the Plan -Trustee hereby authorizes the `
Agent to accept investment instructions given by each Participant and, after a Participant's death, each
Beneficiarywith respect to his/her/its Plan Account, or by a Registered Investment Adviser regarding a
Plan Account for which the Registered Investment Adviser is entitled to convey or give instructions
under applicable Investment Law and the Plan. The Plan -Trustee shall have no knowledge of any
investment instruction.
If the Participant's investment instructions are not received nl good order, the Plan -Trustee or the
Agent (or any other person serving regarding the Plan -Trust) may hold any Contribution or other
amount in cash, without liability for interest or investment gains of any kind, until the person receives
complete proper instructions in good order.
457b:G:Plat1:trust:96Aug27
Page 7 9 7
4v
10
Eligible Deferred Compensation Plan
Plan -Trust Declaration
4. Processing Account
4.1 Plan -Trustee's Processing Account
In addition to (and not by limitation upon) any other provisions of this Plan -Trust Declaration, the
Plan -Trustee may (but is not required to) establish and maintain a bank account(s) for the purpose of
receiving and holding for a reasonable time amounts awaiting investment. This account may be used to
hold Contributions awaiting investment. This account may be used for receiving and clearing a transfer
paid to the Plan -Trustee under another eligible deferred compensation plan to be invested under the
Plan. This account may be used to receive amounts to pay a Distribution to a Participant or
Beneficiary or other Distributee or payee. Any interest income or investment earnings attributable to
this account shall be used to defray Plan administration expenses.
4.2 Agent's Processing Accounts
In addition to (and not by Cunitation upon) any other provision of this Plan -Trust Declaration, the
Employer and the Plan Administrator hereby approve and the Plan Trustee shall authorize and ratify
any deposit of amounts into a bank account(s) maintained by the Agent, which may commingle Plan
amounts together with plan assets of other deferred compensation plans and retirement plans, provided
that the person that holds such account maintains adequate accounting to determine the amount(s)
attributable to this Plan -Trust. Any interest income or investment earnings attributable to any of these
accounts shall be additional compensation to the person that holds such account.
5. Plan -Trustee's duties
5.1 Plan -Trustee must defend the Plan -Trust
The Plan -Trustee must defend the Plan -Trust in any action at law or in equity that asserts or alleges
that the Plan -Trust is not a valid entity or is in any other way illegal or void or voidable. The Plan -
Trustee is entitled to pay from or be reimbursed by the Plan -Trust assets all of its actual expenses
incurred relating to the defense of the Plan -Trust.
5.2 Plan -Trustee must hold Investments
The Plan -Trustee must maintain ownership of the Investments. To the extent of Investments under a
group trust, collective investment fund, or other pooled investment, the Plan -Trustee's participation
(whether or not measured by shares or units) in the group -trust, collective investment fund, or other
pooled investment is the form of ownership.
5.3 Plan -Trustee has no investment duties
The Plan -Trustee has no investment duties under the Plan -Trust. Except for use of a Processing
Account, the Plan -Trustee shall not invest any money or property of the Plan -Trust other than under
the Investments selected by the Employer as instructed by Participants and Beneficiaries.
The parties acknowledge that the Plan requires Participants and Beneficiaries to direct the investment
of their Plan Accounts among the Plan Investment and any funds or options under those Investments..
The Employer is responsible for the selection of the Plan Investments. The Plan -Trustee has no duty to
consider the prudence of any investment of any kind. The Plan -Trustee has no duty to and shall not
inquire into any Participant's or Beneficiary's investment direction.
457b:G:Nat1:tru9:96Aug27 page g 9 7" 48
Eligible Deferred Compensation Plan
Plan -Trust Declaration -
6. Plan -Trustee's powers
6.1 Plan -Trustee's powers
Subject to the limitations stated by Part 7 ["Plan -Trustee's limitations" at page 10] and otherwise by
this Plan -Trust Declaration, the Plan -Trustee has all powers provided by any applicable statute and
otherwise at law or in equity (including the common law), and has the following specified powers in
addition to and not by limitation upon any such powers.
6.2 Power to use Investments
The Plan -Trustee delegates to the Plan Administrator and the Agent authority to exercise any of the
Plan -Trustee's rights or powers under the Investments. The Plan -Trustee shall oversee the Plan
Administrator's and the Agent's actions so as to have reasonable assurance that the Investments are
used according to the Plan and not for any improper purpose.
6.3 General powers
The Plan -Trustee may require the Employer and the Plan Administrator, and any other person involved
in the administration of the Plan, and any person having any interest under the Plan, to furnish such
certifications of facts as shall permit the Plan -Trustee to perform its duties under this Plan -Trust
Declaration or under any applicable law. The Plan -Trustee has power to make, execute, and deliver as
Plan -Trustee any and all contracts, waivers, releases, or other instruments in writing and to do all other
acts as Plan -Trustee that the Plan -Trustee considers necessary or appropriate in carrying out any of the
above powers or any duty or power under this Plan -Trust Declaration or otherwise at law or in equity.
The Plan -Trustee has power to adjust, settle, contest, compromise and arbitrate any claims, debts, or'
damages due or owing to or from the Plan -Trust, and to sue, commence or defend any legal
proceedings relating to the Plan -Trust.
6.4 Power to employ accountants and counsel
Subject to the Enabling Statute and applicable local government procurement law, the Plan -Trustee has
power to employ (at the expense of the Plan -Trust) suitable agents, accountants, attorneys, lawyers,
legal assistants, consultants, and counsel of any kind; and to pay their fees or expenses and
compensation out of the Plan -Trust assets, or to reimburse the Plan Administrator for any such fees or
expenses and compensation it has already paid if the Plan Administrator instructs the Plan -Trustee that
the Plan Administrator incurred or if the Plan -Trustee incurred such expense for the purpose of Plan or
Plan -Trust administration. The Plan -Trustee may consult with counsel (who may be counsel for the
Plan Administrator or the Plan Sponsor or any Employer, but must not be counsel for the Agent or any
Issuer), and the Plan -Trustee shall not be deemed imprudent by reason of its taking or refraining from
taking any action according to the opinion of such counsel. For this purpose, any information
furnished by the Agent or any Issuer, including information furnished by counsel for either of them,
cannot be considered as legal advice or counsel of any kind. The Plan -Trustee has power to waive any
conflict -of -interest arising out of the circumstances that counsel to the Plan -Trustee also may be or is
counsel to the Plan Administrator and the Employer.
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Eligible Deferred Compensation Plan
Plan -Trust Declaration
7. Plan -Trustee's limitations
7.1 Only Investments
The Plan -Trustee shall not invest any money or property of the Plan -Trust other than under an
Investment or a Processing Account.
7.2 Employer sends Contributions
Each Participating Employer sends Contributions to the Custodial -Trustee or its agent to be invested
under the Investments. The Plan -Trustee shall not receive any Contributions.
7.3 Plan Administrator delivers investment directions
The Plan -Trustee shall not give any investment direction or instruction of any kind, except as instructed
by the Plan Administrator or the Agent.
7.4 Exclusive benefit
To the extent required by IRC § 457(g), the Plan -Trustee has no power to use or divert any part of the
Plan -Trust assets or income to purposes other than for the exclusive benefit of the Participants and
their Beneficiaries under the Plan.
8. Plan -Trustee's compensation
8.1 Plan -Trustee serves without compensation
The Plan -Trustee shall serve without compensation.
8.2 Plan -Trustee's special expenses
In addition to (and not by limitation upon) any other provision of this Plan -Trust Declaration
concerning payment or reimbursement of Plan -Trust expenses, the Plan -Trustee shall have special
expenses paid by the Employer as provided below.
8.2.1 accounting
If, because a final court order finds ¶ 9.1 [`Plan accounting is Plan -Trust accounting" at page I I)
invalid, or for any other reason, the Plan -Trustee must prepare an accounting other than as provided by
¶ 9.1, the Plan -Trustee shall prepare the accounting in the form required by the court or by the Plan
Administrator; and the Plan -Trustee is entitled to pay from or be reimbursed by the Plan -Trust assets
all of its actual expenses based upon the actual fees paid to agents, accountants, consultants, lawyers
and legal assistants, and counsel of any kind who perform services regarding the accounting.
8.2.2 defense of the Plan -Trust
I pursuant to ¶ 5.1 or otherwise, the Plan -Trustee defends the Plan -Trust in any proceeding at law or
in equity (or against any threatened proceeding), the Plan -Trustee is entitled to pay from or be
reimbursed by the Plan -Trust assets all of its actual expenses based upon the actual fees paid to agents,
accountants, consultants, lawyers and legal assistants, and counsel of any kind who perform services
regarding the defense.
For any such special expense, whether under ¶ 8.2.1 or 8.2.2 or otherwise, it is intended that the
Plan -Trust provide reasonably incurred actual expenses, and the Plan -Trustee is not required (but is
permitted) to seek any Plan Administrator approval or court approval as to whether the expenses are
reasonably incurred.
457b: G:Natl:trust:9GAug27
page 10 97 _ 48
Eligible Deferred Compensation Plan
Plan -Trust Declaration
9. Accounts
9.1 Plan accounting is Plan -Trust accounting
Because this Plan -Trust Declaration provides that the Plan -Trustee shall not ' receive Plan
Contributions, shall not make or receive repayment of Plan Loans, shall have no investment duties,
shall not give investment instructions, and shall not pay Plan Distributions, the Plan -Trustee need not
keep accounts of the Plan -Trust.
If a court finds that this Provision is invalid, the Plan -Trustee and the Plan Administrator shall prepare
the accounting in the form required by the court or by the Plan Administrator, and, consistent with
¶ 8.2 ["Plan -Trustee's special expenses" at page 10], the Plan -Trustee is entitled to pay from or be
reimbursed by the Plan -Trust assets all of its actual expenses incurred in preparing any accounting.
9.2 Plan audits
At any time the Plan Administrator may (but is not required to) engage an independent qualified public
accountant to examine the Plan's financial statements or internal control procedures. If the Plan
Administrator engages an independent accountant, the Plan Administrator must require that such
engagement provide that the examination be made according to generally accepted auditing principles
(or according to agreed -upon procedures that the Plan -Trustee approves in writing), and that the Plan -
Trustee is entitled to rely upon the accountant's examination and opinion and all reports relating to the -
examination.
The Plan Administrator acknowledges that, since the Plan -Trustee does not handle transactions under
the Investments and does not keep accounts of the Plan -Trust, an examination by the independent
qualified public accountant may be the only means by which the Plan Administrator and the Plan -
Trustee may receive any assurance concerning the correctness of transactions and amounts under the
Plan Investments.
9.3 Court accounting
Except as otherwise ordered by a court having jurisdiction, no person other than the Plan
Administrator may require an accounting by the Plan -Trustee. If any accounting is requested or
required under this Provision, the Plan -Trustee and the Plan Administrator shall prepare the accounting
in the form required by the court or by the Plan Administrator, and, consistent with ¶ 8.2 ["Plan -
Trustee's special expenses" at page 10], the Plan -Trustee is entitled to pay from or be reimbursed by
the Plan -Trust assets all of its actual expenses incurred in preparing any accounting.
9.4 Court -settled accounting or instructions
Notwithstanding anything in this Plan -Trust Declaration to the contrary, the Plan -Trustee has the
absolute right at any time to petition any appropriate court for a settlement of the Plan -Trust's
accounts or otherwise for the court's instructions in executing the Plan -Trustee's obligations under the
Plan -Trust created by this Plan -Trust Declaration. The only necessary party is the Plan Administrator.
But the Plan -Trustee may bring in as a party any other person or entity.
i
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Eligible Deferred Compensation Plan
Plan -Trust Declaration
10. General provisions
10.1 Accounts
Consistent with ¶ 9.1 ["Plan accounting is Plan -Trust accounting" at page 11], the Plan -Trustee has
no duty to prepare any account under the Plan -Trust.
10.2 Action of Plan -Trustee
The Plan -Trustee may authorize any of the Employer's officers or employees to execute documents on
his/herfits behalf.
10,3 Allocation of responsibility
Any party to the Plan -Trust Declaration, and any party acting regarding the Plan -Trust, shall have only
those specific powers, duties, responsibilities, and obligations specifically provided by the Plan -Trust
Declaration, or that are expressly required under the Plan, to the extent that the Plan is not inconsistent
with the Plan -Trust Declaration.
The Employer and the Plan Administrator and the Plan -Trustee each warrants to every other party and
the Agent that any instruction or direction given, information furnished, or action taken by it is
according to the provisions of the Plan -Trust Declaration. Each party and the Agent may rely upon
any such instruction, direction, information, or action of any other party as being proper under the
Plan -Trust Declaration and the Plan and for all purposes. The party is not required to inquire into the --
correctness or propriety of any such instruction, direction, information, or action.
Each party is fully protected in any action taken or not taken by it and cannot be deemed imprudent by
reason of taking or refraining from taking any action in good faith pursuant to its reasonable reliance
upon the advice of its counsel, provided that the party exercised reasonable due care in its selection of
its counsel.
Each party is responsible only for the proper exercise of his/her/its own powers, duties, responsibilities,
and obligations, and any party is not liable for any act or failure to act of another party, except as
provided below.
The Agent is not Gable for a breach of fiduciary responsibility of any person under any circumstances,
including (but not limited to) the Agent's actual knowledge of the breach. The Agent is not
responsible to inform any person concerning any knowledge of any breach.
10.4 Anti -alienation
In addition to (and not by limitation upon) the provisions of the Plan and the Enabling Statute and
other applicable law, any interest available under the Plan -Trust, or any right to receive or instruct
payments under the Plan -Trust, or any Distribution or payment made under the Plan or distribution or
payment made under the Plan -Trust is not (either at law or in equity) subject to assignment or
alienation of any kind, whether by the voluntary or involuntary act of any interested person under the
Plan or Plan -Trust, except as expressly authorized by the Plan.
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Eligible Deferred Compensation Plan
Plan -Trust Declaration
10.5 Audit
Notwithstanding any provision of Part 9 and without limiting the effect of any provision of Part 9 or
any other provision of this Plan -Trust Declaration, the Plan -Trustee may (but is not required to) engage
a public accountant to audit or review the financial statements of and internal control procedures with
respect to the Plan -Trust, and any fees paid or incurred for such audit or review and related accounting
and auditing services shall be a Plan -Trust expense charged to all (or substantially all) Participants' Plan
Accounts in an equitable manner determined by the Plan Administrator.
10.6 Bonding
The Plan -Trustee is not required to give any bond or other security in any jurisdiction for the faithful
performance of its duties under the Plan -Trust Declaration. However, if any bond is required for any
purpose, no surety shall be required on any bond.
10.7 Construction
The Plan -Trust Declaration shall be construed and interpreted according to Part 20 of the Plan.
10.8 Course of dealing does not change Agreement
Any course of dealing between or among any persons having any interest in or serving under the Plan -
Trust cannot change or discharge any provision of the Plan -Trust Declaration or any of the rights or
obligations of any party. The failure of a party to exercise or assert any right under the Plan -Trust
Declaration shall not be deemed a waiver of any right under the Plan -Trust Declaration.
10.9 Court -settled accounting
Notwithstanding anything in this Plan -Trust Declaration to the contrary, the Plan -Trustee has the
absolute right at any time to petition any appropriate court for a settlement of the Plan -Trust's
accounts or otherwise for the court's instructions in performing or satisfying the Plan -Trustee's
obligations under the Plan -Trust Declaration. The only necessary party is the Plan Administrator. But
the Plan -Trustee may bring in as a party any other person.
10.10 Dealings with the Plan -Trustee
Any person or entity dealing with the Plan -Trustee has no obligation to inquire concerning the validity
of anything the Plan -Trustee purports to do, nor any duty to see to the proper application of any
money paid or any property transferred upon the request of the Plan -Trustee, nor any duty to inquire
into the Plan -Trustee's authority as to any transaction.
10.11 Direction by Plan Administrator
Notwithstanding anything to the contrary in this Plan -Trust Declaration, the Plan Administrator shall at
all times and at any time have the power and the duty and obligation to instruct the Plan -Trustee in the
exercise of any and each of the Plan -Trustee's duties or powers. The Plan -Trustee is entitled to
presume without inquiry or consideration of any kind that each such instruction is proper under the
Plan, the Enabling Statute, and the internal Revenue Code.
When acting under any such instruction, the Plan -Trustee shall be free of any and every liability
whatsoever arising out of its act or failure to act if the Plan -Trustee acts or declines to act according to
the Plan Administrator's instruction(s). in the absence of an instruction by the Plan Administrator, the
Plan -Trustee shall exercise its powers (including declining to act) in its own discretion, and the
Employer and the Plan Administrator shall hold harmless, defend, and indemnify the Plan -Trustee,
consistent with ¶ 10.15 rIndemnification], for any damages arising out of the Plan -Trustee's act or
failure to act, including even a negligent or grossly negligent or willful act or failure to art.
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Eligible Deferred Compensation Plan
Plan -Trust Declaration
10.12 Entire Agreement
The parties intend that this Plan -Trust Declaration is the complete and exclusive statement of the
parties' agreement and contains all understandings on this subject. This written Plan -Trust Declaration
supersedes all prior or contemporaneous agreements, understandings, or any other representations
concerning this subject matter. There are no other understandings between or among the parties.
Everything agreed upon is fully expressed by this written Plan -Trust Declaration.
Without limiting the comprehensive effect of the above, the Plan -Trustee shall have no duties except as
expressly stated by this Plan -Trust Declaration, and the title or position of trustee or the fact that the
Plan -Trustee has agreed to serve as a trustee shall not be construed to create or recognize any implied
covenant or obligation.
The Agent has no duties except as expressly specified by the Service Agreement. The Agent is not a
fiduciary for any purpose, except to the extent provided by applicable insurance law to the extent that a
Processing Account is an insurance producer processing account under that law.
10.13 Expenses
The Plan -Trustee and the Plan Administrator shall be reimbursed from the Plan -Trust assets for any
actual expense (including, by example and not by limitation, actual fees of lawyers and legal assistants,
accountants, auditors, proxy solicitors, or other consultants) reasonably incurred in performing services
with respect to the Plan or the Plan -Trust. Without limiting the comprehensive effect of the foregoing; -
all of the provisions of the Plan concerning expenses are incorporated into and made a part of this Plan -
Trust Declaration by reference. Except as otherwise ordered by the court, the expense reimbursement
shall be effected by deducting a charge against all (or substantially all) Participants' Plan Accounts
according to an equitable method determined by the Plan Administrator.
10.14 Governing law
This Flan -Trust Declaration shall be governed by and construed, to the extent that any construction
beyond the written provisions of the Plan -Trust Declaration (including ¶ 10.7 [`Construction" at
page 13]) is necessary, and enforced according to the internal laws (without regard to the law of
conflicts) of the State or jurisdiction of which the Employer is an agency or political subdivision for
contracts made and wholly performed in such State or jurisdiction.
10.15 IndemniFcation
For any Plan -Trustee who is or was an Employee of the Plan Sponsor or any Employer, the Plan -
Trustee's service with respect to the Plan -Trust shall be treated as official duties, and the Plan -Trustee
shall be entitled to relief from liability and defense and indemnification to the same extent as provided
for a government officer or employee in the conduct of his/her official duties.
10.16 Limitation on liability
The Employer and the Plan Administrator understand that the Plan -Trustee's duties under this Plan -
Trust Declaration are solely ministerial.
The Plan -Trustee shall not be responsible for any act or omission of the Plan -Trustee, including the
Plan -Trustee's own willful nonfeasance, misfeasance, malfeasance, unless such act or omission is a
breach of the Plan -Trustee's standard of care under ¶ 10.27 [at page 16].
The Plan -Trustee shall not be responsible for any act or omission of any predecessor Plan -Trustee.
16 457b:G:Natl:trust:96Aug27 l Page 14
Eligible Deferred Compensation Plan
Plan-Tncst Declaration
The Plan -Trustee shall not be responsible for any act or omission of any nominee, custodian,
depository, accountant, counsel, or agent selected with reasonable care.
The Plan -Trustee shall not be responsible for any selection, decision, or instruction made by the
Employer or the Plan Administrator.
10.17 Mistaken contributions
Without consent by or notice to the Plan -Trustee, if any Contribution (or any portion of a
Contribution) is made by the Employer or an Employer by a good faith mistake of fact as provided by
the Plan, upon receipt in good order of a proper request by the Plan Administrator or the Employer,
the Agent may pay to the Employer the amount so requested for the purpose of returning a mistaken
Contribution under the Plan.
10.18 No Plan duties
Notwithstanding any reference to the Plan, the duties and obligations of the Plan -Trustee are limited to
those expressly stated by the Plan -Trust Declaration. The Plan -Trustee is not a party to the Plan. The
Plan -Trustee has no duty of any kind to read or have any knowledge of the Plan. The Plan -Trustee
shall act solely according to the provisions of the Plan -Trust Declaration together with applicable law.
10.19 No right other than under Plan
The establishment of the Plan -Trust and the purchase of any Investment under the Plan -Trust is not to
be construed as giving to any Participant or Beneficiary or other person any legal or equitable right; the --
rights of Participants and Beneficiaries are solely under the Plan.
10.20 Notices
Requests for information, instructions, notices of any kind, claims or demands, legal process, and court
orders [each referred to in the Plan -Trust Declaration as a `hotice'l are properly made when given in
the form provided below and addressed to the applicable party and to the name and address specified
by the Plan or otherwise in or according to this Plan -Trust Declaration.
To be legally effective, any notice given or delivered under this Agreement must be in writing, and is
deemed given if delivered personally (including a signed -for delivery made by a courier) or if mailed by
registered or certified mail (return receipt requested) or if delivered or transmitted by any other means
that includes acknowledgment or proof of delivery. Any such notice is deemed given when actually
received. But a receipt indicating that delivery was refused is deemed actual delivery.
10.21 Prohibited transaction
The Plan -Trustee may (but is not required to) establish a procedure for the periodic review of directed
investments and any other Plan -Trust investments to determine, in fight of the facts and circumstances
known to the Plan -Trustee, whether any actual or proposed investment constitutes or would constitute
a prohibited transaction within the meaning of IRC § 503. If the Plan -Trustee in its sole discretion
finds that any investment constitutes or would constitute a prohibited transaction, the Plan -Trustee
shall promptly give notice to the Employer, and shall recommend that the Employer prevent or dispose
of the investment or otherwise prevent or remedy the transaction. If the Employer fails to prevent or
remedy a transaction that the Plan -Trustee finds is a prohibited transaction, the Plan -Trustee may (but
is not required to) take any action required or permitted by applicable law. However, if the Plan -
Trustee finds that a prohibited transaction causes or would cause the Plan -Trust to be maintained other
than for the exclusive benefit of Participants and their Beneficiaries or otherwise contrary to ¶ 1.4
["Exclusive benefit" at page 4], the Plan -Trustee shall take such action as is sufficient to cause the
Plan -Trust to be maintained for the exclusive benefit of Participants and their Beneficiaries.
17
457b:G:Nat1:trust:96Aug27 page 15 9 7 - 48
22
Eligible Deferred Compensation Plan
Plan -Trust Declaration
10.22 Protection of Issuers
Any Issuer shall not be liable in acting according to any instruction, if in writing or otherwise
reasonably believed to be genuine, of its Contract Owner or other person that has the right to give
instructions under the terms of the Investment, and shall not be required to question (unless otherwise
provided by the applicable Investment) any action or inaction so instructed. The Issuer shall not be
required to take or permit any action or allow any benefit or privilege contrary to the terms of any
Investment which it may issue regarding the Plan.
10.23 Restitution and restoration
In addition to (and not by iimitation upon) any other remedy, including (but not limited to) any legal,
equitable, remedial, or other relief, to the extent that any person breaches ¶ 1.4 ["Exclusive benefit" at
page 4], such person shall be personally liable to make good to the Plan -Trust (or, in an appropriate
case, to the applicable Participant or Beneficiary or Alternate Payee) any losses to the Plan -Trust
resulting from or arising out of each such breach, and to restore to the Plan any profits of such person
which have been made through the breaching person's improper use of Plan -Trust assets or income.
10.24 Rule against accumulations
Following ¶ 10.25, the rule against accumulations does not apply to the Plan -Trust.
10.25 Rule against perpetuities
The rule against perpetuities does not apply to the Plan -Trust.
10.26 Separability
If a court finds that any provision of the Plan -Trust Declaration is invalid, the Plan -Trust Declaration
shall be construed and enforced as if the invalid provision was not a provision of the Plan -Trust
Declaration, unless the court finds or the Plan -Trustee finds that such a construction of the Plan -Trust
Declaration would be clearly contrary to the intent of the Plan -Trust Declaration or would be contrary
to IRC § 457(g) or would violate the Enabling Statute.
10.27 Standard of care
The Plan -Trustee shall discharge its limited duties under this Plan -Trust Declaration with the diligence
under the circumstances then prevailing that a prudent person acting as a ministerial trustee of a trust
for which the trustee had no duties other than to maintain record title of the trust property would use in
the conduct of a like trust with a like aim to the purpose stated by 11.2 ["Purpose of the Plan -Trust"
at page 4].
18
457b:G:Natl:trust:96Aug27 page 16 9 7r - 48
Eligible Deferred Compensation Plan
Plan -Trust Declaration
The Plan -Trustee's duties under this Plan -Trust Declaration are solely ministerial. Without limiting the
comprehensive effect of the above, all parties understand that the Plan -Trustee has no duty, express or
implied, to review any investment or any investment, banking, securities, or insurance transaction, and
therefore shall have no liability for any failure to review any transaction.
Further, notwithstanding any ministerial duties of the Plan -Trustee provided under this Plan -Trust
Declaration or any dirties required or rights permitted under applicable Investment Law, the Plan -
Trustee shall not have any knowledge of any investment or of any transaction. Therefore, if
`knowledge" of the Plan -Trustee is or may be a prerequisite to imposing a duty upon or an element in
determining any liability of the Plan -Trustee at law or in equity, the fact that the. Plan -Trustee has
possession of (or had or has a legal or equitable right to possess or obtain) any record of any
investment or any transaction shall not constitute 'knowledge" of the Plan -Trustee.
If for any reason a court .finds this Provision void or legally unenforceable, the Plan -Trustee may resign
on one Business Day's written notice to the Employer. Also, any indemnification rights shall apply on
the basis that it was reasonable for any person to assume that this Provision is legally enforceable until
the supreme court or the highest court of the state or jurisdiction expressly orders otherwise.
10.28 Taxes
All taxes of any kind (including but not limited to income tax, gift tax, estate tax, inheritance tax, or
similar transfer taxes of any kind, real or personal property tax, insurance premium tax, or transfer tax
incurred in connection with the investment, reinvestment, or distribution of any Plan -Trust assets) that
may be levied or assessed upon the Plan -Trust, its income or assets, shall, if allocable to the Account of
a particular Participant or Beneficiary, be charged to that Plan Account, and if not so allocable, shall be
charged proportionately to all Plan Accounts, and shall be paid from the Plan -Trust and charged
against the applicable Account or all Accounts. However, the Plan -Trustee is not obliged to pay any
tax so long as it contests the validity of the tax.
10.29 Third -party reliance
Any person receiving property from, delivering property to, or having any other transaction with the
Plan -Trustee is not required to consider the propriety of the acts of the Plan -Trustee or inquire into the
application of the property or money received by the Plan -Trustee, as long as the person is acting in
good faith.
10.30 Venue
For any action at law or in equity in which the Plan -Trustee is a party, exclusive jurisdiction and
exclusive venue shall be in the courts sitting in and for the district in which the Plan -Trustee has
his/her/its principal place of business.
19
457b:G:Natl:trust:96Aug27 page r 7 `" 48
20
Eligible Deferred Compensation Plan
Plan -Trust Declaration
11. Amendment or termination
11.1 Amendment of Plan -Trust
The Employer may amend this Plan -Trust Declaration at any time and without the consent of any other
person. Any amendment must be in writing. However, any amendment that would diminish the
protection of ¶ 1.4 ["Exclusive benefit" at page 4] is absolutely void.
11.2 Termination of Plan -Trust
The Plan -Trust is permanent and irrevocable, except as provided below.
11.2.1 no assets
The Plan -Trustee may terminate the Plan -Trust if every Investment is closed or terminated or settled,
and there are no successor Investments, and there is no other Plan -Trust asset.
11.2.2 court order
The Plan -Trust may be terminated at any time upon court order by any appropriate court of the State
or of the United States. Upon such termination, the Plan -Trust Investments shall be transferred or used
as instructed by the court.
t'
457b:G:Nat1:uust:96Aug27 page iQ 7 -- 48
Eligible Deferred Compensation Plan
Plan -Trust Declaration
MAILING IT LEGAL
NOW THEREFORE, in recognition of the premises recited above, and in consideration of the
provisions stated by this Plan -Trust Declaration, and intending to be legally bound by this written Plan -
Trust Declaration, the Employer and the Plan Administrator and the Plan -Trustee signed below.
date
date
date
457b:G:Nat1:trust:96Aug27
CITY OF MIANII
as Employer
BY:
CITY OF MIANII
as Plan Administrator
BY:
Plan -Trustee
BY:
4,
1 h
CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM 7
TO: Honorable Mayor and Members DATE: JA1\I 16 1997 FILE:
of the City Commission
SUBJECT: Amendment to Copeland Com-
panies Plan -Trust Declaration
Deferred Compensation Plan
FROM: Edward Mar J REFERENCES:
City Manager
ENCLOSURES:
RECOMMENDATION:
It is recommended that the City Commission adopt the attached Resolution
authorizing the City Manager or his designee to execute the necessary documents
amending the City of Miami's 457 Deferred Compensation Plan in the form of the
Copeland Companies Plan -Trust Declaration for City employees.
The adoption of this Resolution will authorize the execution of appropriate
amendments to the Copeland Companies Plan -Trust Declaration thereby bringing
the Deferred Compensation Plan into compliance with the Small Business Job
Protection Act and the Health Insurance Portability and Accountability Act of 1996.
BACKGROUND:
In 1996 Congress passed several bills that included substantial tax law changes
that require changes to the structure of and allow enhancements of the benefits of
the deferred compensation plan.
Under the new law, the state or local government employer is required to establish
a trust or use an annuity contract or custodial account so that deferred
compensation will be funded and not merely an unsecured promise by the employer.
Under the new law, all § 457(b) plan amounts are required to be held in trust (or a
custodial account or annuity contract) for the exclusive benefit of plan participants
and beneficiaries. Therefore, the plan assets will not be subject to the claims of the
employer's creditors. Any trust or custodial account maintained for this purpose
will be exempt from federal income tax. Although the law does not require a trust
to be established prior to January 1, 1999, until the trust is established, assets
remain unprotected.
97-- 48 1
2
Honorable Mayor and Members of the City Commission
RE: Copeland Companies Plan -Trust Declaration Deferred Compensation Plan
Page 2
Other provisions of the law which are effective January 1, 1997 include providing
for: indexed maximum contribution amounts, one-time forward changes, small
balance distributions, and participant loans without tax consequences, if elected by
the employer. The Resolution specifies that loans will not be permitted.
The adoption of this Resolution will enable the City, through the deferred
compensation plans offered to its employees, 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. The City will incur no cost by the adoption of the attached Resolution
amending the deferred compensation plan.
9'7 - 48
NAME:
ADDRESS:
CONTACT:
TELEPHONE:
U
4
457b-.G:Nat1:trust:96Aug27
Eligible Defen-ed Compensation Plan
Plan -Trust Declaration
IDENTIFICATION PAGE
City of Miami
L«:,
i
able Deferred Compensation Plan
Plan -Trust Declaration
f
I
j to Making the Flan -Trust
1.1 Making this Plan -Trust
This Plan -Trust Declaration is made by and among the Plan Sponsor and the Plan Administrator
and the Plan -Trustee [the `bxecuting parties']. The Plan Sponsor and each Employer wants the
Plan -Trustee to hold the Investments, and wants the Plan -Trustee or the Agent to accept
Contributions and pay Distributions, and the Plan -Trustee and the Plan Administrator are willing
to do so, pursuant to the provisions of the Plan -Trust Declaration.
1.2 Purpose of the Plan -Trust
The purpose of the Plan -Trust is to hold the Investments and any other money or property held for the
purposes of the Plan solely as Plan assets for the purpose of investing Plan Accounts and paying Plan
Distributions.
All parties acknowledge that each Employer has created the Plan -Trust and the executing parties have
made this Plan -Trust Declaration solely to meet the requirement of IRC § 457(b)(6) together with
IRC § 457(g). The Employer and the Plan Administrator each acknowledges that the Plan -Trust has
no business or Plan administration purpose other than as stated by ¶ 1.4 ["Exclusive benefit" at
page 4].
1.3 Plan -Trust is irrevocable
Beginning on the date that the Employer executes or adopts the Plan -Trust Declaration, the Plan -Trust
is irrevocable, except to the extent provided by ¶ 10.17 [`Mistaken contributions" at page 15] or by
¶ 11.2 ["Termination ofP[an-Trust"at page 19].
1.4 Exclusive benefit
The Plan and the Plan -Trust are established for the exclusive benefit of Participants and their
Beneficiaries. Except as otherwise permitted by IRC § 457(g), all assets and income of the Plan shall
be held for the exclusive benefit of the Plan's Participants and thew Beneficiaries.
1.5 Plan and Plan -Trust tau status
The Plan is intended to be an eligible deferred compensation planwithin the meaning of IRC § 457(b),
and the Plan -Trust is intended to be tax-exempt under IRC § 501(a) pursuant to IRC § 457(g).
9'7 r- 48
6
457b:G:Nat1:trust:96Aug27 page 4
.t
.:tigible Deferred Compensation Plan
Plan -Trust Declaration
SUMMARY FABLE OF CONTENTS
1. Making the Plan-Trust................................................................................................. 4
2. Definitions. ............................ ........................................................................ .......... 5
3. Using the Investments
........... 7
4. Processing Account ...................................................... .....................I.......................... 8
5. Plan -Trustee's duties.................................................................:................................. 8
6. Plan -Trustee's powers ................................... ........... ...................... 9
7. Plan -Trustee's limitations......................................................................... .............. 10
8. Plan -Trustee's compensation ................. ......... :::......................................................... 10
9. Accounts ................................................. 11
10. General provisions.................................................................... .............................. 12
11. Amendment or termination...................................................................................... 18
Makingit legal.......................................................................................................... 19
457b:G:Natl:trust:96Aug27
97- 48
5
page 3
Eligible Defen-ed Compensation Plan
Plan -Trust Declaration
2.9 "Employer"
means the Eligible Employer that signs this Plan -Trust Declaration, and otherwise has the meaning
given by the Plan.
Only a state or political subdivision or agency thereof or other organization described in
IRC § 457(e)(1)(A) can be an Employer under the Plan -Trust.
2.10 "Enabling Statute"
means the State statute that grants the Employer legal authority to maintain the Plan.
2.11 "Fund"
has the meaning given by the Plan.
2.12 "Investment"
has the meaning given by the Plan.
2.13 "Investment Law"
has the meaning given by the Plan.
2.14 "Participant"
has the meaning given by the Plan.
The use of the term `Participant" shall not constitute such person or entity as a beneficiary under the
Plan -Trust.
2.15 "Plan"
means the eligible deferred compensation plan maintained by the Employer that signs this Plan -Trust
Declaration.
Solely to the extent necessary under the definitions provisions stated in this Part, the Plan is
incorporated into and made a part of this Plan -Trust Declaration by reference.
2.16 "Plan -Trust"
means the legal entity and relationship established by this written Plan -Trust Declaration.
2.17 "Plan -Trust Declaration"
means the legal agreement or declaration stated by this document (including any group -trust
declaration which is incorporated by reference in this Plan -Trust Declaration) together with the
applicable Plan to the extent incorporated by reference).
2.18 "Plan -Trustee"
means the Plan Sponsor if applicable law does not prohibit the Plan Sponsor from serving as the Plan -
Trustee.
To the extent that applicable law prohibits the Plan Sponsor from serving as the Plan -Trustee, the
natural person(s) who signs his/her name on this Declaration on behalf of or as the Plan -Trustee and,
after that individual's separation -from -service with the Employer, the natural person who is the
successor -in -office, unless the Employer previously has delivered to the Agent a written instruction that
names the Plan -Trustee.
s 97— 48
457b: G:Natl: trust: 96Aug27 page 6
Eligible Deferred Compensation Plan
Plan-Tnist Declaration
2. Definitions
Whenever used in the Plan -Trust Declaration, each of the following terms has the meaning stated
below.
Any term not defined by this Plan -Trust Declaration that is defined by an Investment or by a group -
trust declaration has the meaning given by the Investment or by the group -trust declaration. Any other
capitalized term in this Plan -Trust Declaration has the meaning given by the Plan, or if not defined by
the Plan, the meaning given by the Internal Revenue Code or by applicable Investment Law.
2.1 "Account"
has the meaning given by the Plan.
2.2 "Agent"
means Copeland Associates, Inc. together with its subsidiaries and affiliates that perform services
regarding the Plan and their successors, but only so long as the Service Agreement is in effect.
2.3 "Beneficiary"
has the meaning given by the Plan.
The use of the term `Beneficiary" shall not constitute such person or entity as a beneficiary under the
Plan -Trust.
2.4 "Business Day"
has the meaning given by the Plan.
2.5 «IRC"
means the Internal Revenue IRC of 1986, as amended, and including any Regulations and rulings (or
other Treasury department or IRS guidance of general applicability) under the IRC. Any reference to a
Section of the IRC shall be construed to also refer to any successor provision.
2.6 "Contribution"
has the meaning given by the Plan.
[Generally, a Contribution is the acceptable delivery of money to the Plan -Trustee to be applied under
an annuity or life insurance contract or toward the purchase of Fund Shares.]
The Plan -Trustee is not responsible for the determination or collection of any Contribution required or
permitted by the Plan.
2.7 "Distribution"
has the meaning given by the Plan, and for the purposes of this Plan -Trust Declaration is intended to
exclude any distribution or payment under the Plan -Trust that is not a Distribution under the Plan.
2.8 "Effective Date"
means the first date that any property is held by or an amount is credited to the Plan -Trust. The
Effective Date shall not be earlier than August 20, 1996.
45 7b: G: Natl : trust: 96 Aug27
97- 48 7
page 5
a
Va.
W]
Eligible Deferred Compensation Plan
Plan-Ti ust Declaration
4. Processing Account
4.1 Plan -Trustee's Processing Account
In addition to (and not by limitation upon) any other provisions of this Plan -Trust Declaration, the
Plan -Trustee may (but is not required to) establish and maintain a bank account(s) for the purpose of
receiving and holding for a reasonable time amounts awaiting investment. This account may be used to
hold Contributions awaiting investment. This account may be used for receiving and clearing a transfer
paid to the Plan -Trustee under another eligible deferred compensation plan to be invested under the
Plan. This account may be used to receive amounts to pay a Distribution to a Participant or
Beneficiary or other Distributee or payee. Any interest income or investment earnings attributable to
this account shall be used to defray Plan administration expenses.
4.2 Agent's Processing Accounts
In addition to (and not by limitation upon) any other provision of this Plan -Trust Declaration, the
Employer and the Plan Administrator hereby approve and the Plan Trustee shall authorize and ratify
any deposit of amounts into a bank account(s) maintained by the Agent, which may commingle Plan
amounts together with plan assets of other deferred compensation plans and retirement plans, provided
that the person that holds such account maintains adequate accounting to determine the amount(s)
attributable to this Plan -Trust. Any interest income or investment earnings attributable to any of these
accounts shall be additional compensation to the person that holds such account.
5. Plan -Trustee's duties
5.1 Plan -Trustee must defend the Plan -Trust
The Plan -Trustee must defend the Plan -Trust in any action at law or in equity that asserts or alleges
that the Plan -Trust is not a valid entity or is in any other way illegal or void or voidable. The Plan -
Trustee is entitled to pay from or be reimbursed by the Plan -Trust assets all of its actual expenses
incurred relating to the defense of the Plan -Trust.
5.2 Plan -Trustee must hold Investments
The Plan -Trustee must maintain ownership of the investments. To the extent of Investments under a
group trust, collective investment fund, or other pooled investment, the Plan -Trustee's participation
(whether or not measured by shares or units) in the group -trust, collective investment fund, or other
pooled investment is the form of ownership.
5.3 Plan -Trustee has no investment duties
The Plan -Trustee has no investment duties under the Plan -Trust. Except for use of a Processing
Account, the Plan -Trustee shall not invest any money or property of the Plan -Trust other than under
the Investments selected by the Employer as instrupted by Participants and Beneficiaries.
The parties acknowledge that the Plan requires Participants and Beneficiaries to direct the investment
of their Plan Accounts among the Plan Investment and any funds or options under those Investments.
The Employer is responsible for the selection of the Plan Investments. The Plan -Trustee has no duty to
consider the prudence of any investment of any kind. The Plan -Trustee has no duty to and shall not
inquire into any Participant's or Beneficiary's investment direction.
457b: G: Natl : trust: 96Aug27
97 48
page 8
Eligible Deferred Compensation Plan
Plan -Trust Declaration
2.19 "Plan Administrator"
has the meaning given by the Plan.
2.20 "Plan Sponsor"
has the meaning given by the Plan.
2.21 "Processing Account"
means any bank account maintained by or used by the Plan -Trustee or the Agent according to Part 4
[at page 8].
2.22 "Service Agreement"
means the written agreement between Copeland Associates, Inc. or its successor and the Plan Sponsor
that provides for the Agent to perform services regarding the Plan.
3. Using the Investments
3.1 Plan investments
The Plan -Trustee shall apply for and hold the Investments selected by the Employer.
3.2 Participant -directed investment
In addition to (and not by limitation upon) the provisions above, the Plan -Trustee hereby authorizes the
Agent to accept investment instructions given by each Participant and, after a Participant's death, each
Beneficiary with respect to his/herfiits Plan Account, or by a Registered Investment Adviser regarding a
Plan Account for which the Registered Investment Adviser is entitled to convey or give instructions
under applicable Investment Law and the Plan. The Plan -Trustee shall have no knowledge of any
investment instruction.
If the Participant's investment instructions are not received in good order, the Plan -Trustee or the
Agent (or any other person serving regarding the Plan -Trust) may hold any Contribution or other
amount in cash, without liability for interest or investment gains of any kind, until the person receives
complete proper instructions in good order.
97-
457b:G:Natl:trust:96Aug27 page 7
12
Eligible Deferred Compensation Plan
Plan -Trust Declaration
7. Plan -Trustee's limitations
7.1 Only Investments
The Plan -Trustee shall not invest any money or property of the Plan -Trust other than under an
Investment or a Processing Account.
7.2 Employer sends Contributions
Each Participating Employer sends Contributions to the Custodial -Trustee or its agent to be invested
under the Investments. The Plan -Trustee shall not receive any Contributions.
7.3 Plan Administrator delivers investment directions
The Plan -Trustee shall not give any investment direction or instruction of any kind, except as instructed
by the Plan Administrator or the Agent.
7.4 Exclusive benefit
To the extent required by -IRC § 457(g), the Plan -Trustee has no power to use or divert any part of the
Plan -Trust assets or income to purposes other than for the exclusive benefit of the Participants and
their Beneficiaries under the Plan.
8. Plan -Trustee's compensation
8.1 Plan -Trustee serves without compensation
The Plan -Trustee shall serve without compensation.
8.2 Plan -Trustee's special expenses
In addition to (and not by limitation upon) any other provision of this Plan -Trust Declaration
concerning payment or reimbursement of Plan -Trust expenses, the Plan -Trustee shall have special
expenses paid by the Employer as provided below.
8.2.1 accounting
If, because a final court order finds ¶ 9.1 [`Plan accounting is Plan -Trust accounting" at page' I I]
invalid, or for any other reason, the Plan -Trustee must prepare an accounting other than as provided by
¶ 9.1, the Plan -Trustee shall prepare the accounting in the form required by the court or by the Plan
Administrator; and the Plan -Trustee is entitled to pay from or be reimbursed by the Plan -Trust assets
all of its actual expenses based upon the actual fees paid to agents, accountants, consultants, lawyers
and legal assistants, and counsel of any kind who perform services regarding the accounting.
8.2.2 defense of the Plan -Trust
K pursuant to ¶ 5.1 or otherwise, the Plan -Trustee defends the Plan -Trust in any proceeding at law or
in equity (or against any threatened proceeding), the Plan -Trustee is entitled to pay from or be
reimbursed by the Plan -Trust assets all of its actual expenses based upon the actual fees paid to agents,
accountants, consultants, lawyers and legal assistants, and counsel of any kind who perform services
regarding the defense.
For any such special expense, whether under ¶ 8.2.1 or ¶ 8.2.2 or otherwise, it is intended that the
Plan -Trust provide reasonably incurred actual expenses, and the Plan -Trustee is not required (but is
permitted) to seek any Plan Administrator approval or court approval as to whether the expenses are
reasonably incurred.
457b: G: Natl : trust: 96 Aug27
97- 48
page 10
t
Eligible Deferred Compensation Plan
Plan -Trust Declaration
6. Plan -Trustee's powers
6.1 Plan -Trustee's powers
Subject to the limitations stated by Part 7 ["Plan -Trustee's limitations" at page 10] and otherwise by
this Plan -Trust Declaration, the Plan -Trustee has all powers provided by any applicable statute and
otherwise at law or in equity (including the cornmon law), and has the following specified powers in
addition to and not by limitation upon any such powers.
6.2 Power to use Investments
The Plan -Trustee delegates to the Plan Administrator and the Agent authority to exercise any of the
Plan -Trustee's rights or powers under the Investments. The Plan -Trustee shall oversee the Plan
Administrator's and the Agent's actions so as to have reasonable assurance that the Investments are
used according to the Plan and not for any improper purpose.
6.3 General powers
The Plan -Trustee may require the Employer and the Plan Administrator, and any other person involved
in the administration of the Plan, and any person having any interest under the Plan, to furnish such
certifications of facts as shall pen -nit the Plan -Trustee to perform its duties under this Plan -Trust
Declaration or under any applicable law. The Plan -Trustee has power to make, execute, and deliver as
Plan -Trustee any and all contracts, waivers, releases, or other instruments in writing and to do all other
acts as Plan -Trustee that the Plan -Trustee considers necessary or appropriate in carrying out any of the
above powers or any duty or power under this Plan -Trust Declaration or otherwise at law or in equity.
The Plan -Trustee has power to adjust, settle, contest, compromise and arbitrate any claims, debts, or
damages due or owing to or from the Plan -Trust, and to sue, commence or defend any legal
proceedings relating to the Plan -Trust.
6.4 Power to employ accountants and counsel
Subject to the Enabling Statute and applicable local government procurement law, the Plan -Trustee has
power to employ (at the expense of the Plan -Trust) suitable agents, accountants, attorneys, lawyers,
legal assistants, consultants, and counsel of any kind; and to pay their fees or expenses and
compensation out of the Plan -Trust assets, or to reimburse the Plan Administrator for any such fees or
expenses and compensation it has already paid if the Plan Adn-dnistrator instructs the Plan -Trustee that
the Plan Administrator incurred or if the Plan -Trustee incurred such expense for the purpose of Plan or
Plan -Trust administration. The Plan -Trustee may consult with counsel (who may be counsel for the
Plan Administrator or the Plan Sponsor or any Employer, but must not be counsel for the Agent or any
Issuer), and the Plan -Trustee shall not be deemed imprudent by reason of its taking or refraining from
taking any action according to the opinion of such counsel. For this purpose, any information
furnished by the Agent or any Issuer, including information furnished by counsel for either of them,
cannot be considered as legal advice or counsel of any kind. The Plan -Trustee has power to waive any
conflict -of -interest arising out of the circumstances that counsel to the Plan -Trustee also may be or is
counsel to the Plan Administrator and the Employer.
457b: G:Natl: trust:96Aug27
t,
Eligible Deferred Compensation Plan
Plan -Trust Declaration
10.12 Entire Agreement
The parties intend that this Plan -Trust Declaration is the complete and exclusive statement of the
parties' agreement and contains all understandings on this subject. This written Plan -Trust Declaration
supersedes all prior or contemporaneous agreements, understandings, or any other representations
concerning this subject matter. There are no other understandings between or among the parties.
Everything agreed upon is fully expressed by this written Plan -Trust Declaration.
Without limiting the comprehensive effect of the above, the Plan -Trustee shall have no duties except as
expressly stated by this Plan -Trust Declaration, and the title or position of trustee or the fact that the
Plan -Trustee has agreed to serve as a trustee shall not be construed to create or recognize any implied
covenant or obligation.
The Agent has no duties except as expressly specified by the Service Agreement. The Agent is not a
fiduciary for any purpose, except to the extent provided by applicable insurance law to the extent that a
Processing Account is an insurance producer processing account under that law.
10.13 Expenses
The Plan -Trustee and the Plan Administrator shall be reimbursed from the Plan -Trust assets for any
actual expense (including, by example and not by Iunitation, actual fees of lawyers and legal assistants,
accountants, auditors, proxy solicitors, or other consultants) reasonably incurred in performing services
with respect to the Plan or the Plan -Trust. Without limiting the comprehensive effect of the foregoing,
all of the provisions of the Plan concerning expenses are incorporated into and made a part of this Plan -
Trust Declaration by reference. Except as otherwise ordered by the court, the expense reimbursement
shall be effected by deducting a charge against all (or substantially all) Participants' Plan Accounts
according to an equitable method determined by the Plan Administrator.
10.14 Governing law
This Plan -Trust Declaration shall be governed by and construed, to the extent that any construction
beyond the written provisions of the Plan -Trust Declaration (including T 10.7 [`Construction" at
page 13]) is necessary, and enforced according to the internal laws (without regard to the law of
conflicts) of the State or jurisdiction of which the Employer is an agency or political subdivision for
contracts made and wholly performed in such State or jurisdiction.
10.15 Indemnification
For any Plan -Trustee who is or was an Employee of the Plan Sponsor or any Employer, the Plan -
Trustee's service with respect to the Plan -Trust shall be treated as official duties, and the Plan -Trustee
shall b6 entitled to relief from liability and defense and indemnification to the same extent as provided
for a government officer or employee in the conduct of his/her official duties.
10.16 Limitation on liability
The Employer and the Plan Administrator understand that the Plan -Trustee's duties under this Plan -
Trust Declaration are solely ministerial.
The Plan -Trustee shall not be responsible for any act or omission of the Plan -Trustee, including the
Plan -Trustee's own willful nonfeasance, misfeasance, malfeasance, unless such act or omission is a
breach of the Plan -Trustee's standard of care under ¶ 10.27 [at page 16].
The Plan -Trustee shall not be responsible for any act or omission of any predecessor Plan -Trustee.
16 97- 48
457b: G:Natl:trust:96Aug27
page 14
R
Eligible Deferred Compensation Plan
Plan -Trust Declaration
10.5 Audit
Notwithstanding any provision of Part 9 and without limiting the effect of any provision of Part 9 or
any other provision of this Plan -Trust Declaration, the Plan -Trustee may (but is not required to) engage
a public accountant to audit or review the financial statements of and internal control procedures with
respect to the Plan -Trust, and any fees paid or incurred for such audit or review and related accounting
and auditing services sliall be a Plan -Trust expense charged to all (or substantially all) Participants' Plan
Accounts in an equitable manner determined by the Plan Administrator.
10.6 Bonding
The Plan -Trustee is not required to give any bond or other security in any jurisdiction for the faithful
performance of its duties under the Plan -Trust Declaration. However, if any bond is required for any
purpose, no surety shall be required on any bond.
10.7 Construction
The Plan -Trust Declaration shall be construed and interpreted according to Part 20 of the Plan.
10.8 Course of dealing does not change Agreement
Any course of dealing between or among any persons having any interest in or serving under the Plan -
Trust cannot change or discharge any provision of the Plan -Trust Declaration or any of the rights or
obligations of any party. The failure of a party to exercise or assert any right under the Plan -Trust
Declaration shall not be deemed a waiver of any right under the Plan -Trust Declaration.
10.9 Court -settled accounting
Notwithstanding anything in this Plan -Trust Declaration to the contrary, the Plan -Trustee has the
absolute right at any time to petition any appropriate court for a settlement of the Plan -Trust's
accounts or otherwise for the court's instructions in performing or satisfying the Plan -Trustee's
obligations under the Plan -Trust Declaration. The only necessary party is the Plan Administrator. But
the Plan -Trustee may bring in as a party any other person.
10.10 Dealings with the Plan -Trustee
Any person or entity dealing with the Plan -Trustee has no obligation to inquire concerning the validity
of anything the Plan -Trustee purports to do, nor any dirty to see to the proper application of any
money paid or any property transferred upon the request of the Plan -Trustee, nor any duty to inquire
into the Plan -Trustee's authority as to any transaction.
10.11 Direction by Plan Administrator
Notwithstanding anything to the contrary in this Plan -Trust Declaration, the Plan Administrator shall at
all times and at any time have the power and the duty and obligation to instruct the Plan -Trustee in the
exercise of any and each of the Plan -Trustee's duties or powers. The Plan -Trustee is entitled to
presume without inquiry or consideration of any kind that each such instruction is proper under the
Plan, the Enabling Statute, and the Internal Revenue Code.
When acting under any such instruction, the Plan -Trustee shall be free of any and every liability
whatsoever arising out of its act or failure to act if the Plan -Trustee acts or declines to act according to
the Plan Administrator's instruction(s). In the absence of an instruction by the Plan Administrator, the
Plan -Trustee shall exercise its powers (including declining to act) in its own discretion, and the
Employer and the Plan Administrator shall hold harmless, defend, and indemnify the Plan -Trustee,
consistent with $ 10.15 [lndenuufication], for any damages arising out of the Plan -Trustee's act or
failure to act, including even a negligent or grossly negligent or willful act or failure to act.
15
457b:G:Natl:trust: 96Aug27 page 13
14
Eligible Deferred Compensation Plan
Plan-Tnrst Declaration
10. General provisions
10.1 Accounts
Consistent with T 9.1 ["Plan accounting is Plan -Trust accounting" at page 1 I], the Plan -Trustee has
no duty to prepare any account under the Plan -Trust.
10.2 Action of Plan -Trustee
The Plan -Trustee may authorize any of the Employer's officers or employees to execute documents on
hislherhts behalf.
10.3 Allocation of responsibility
Any party to the Plan -Trust Declaration, and any party acting regarding the Plan -Trust, shall have only
those specific powers, duties, responsibilities, and obligations specifically provided by the Plan -Trust
Declaration, or that are expressly required under the Plan, to the extent that the Plan is not inconsistent
with the Plan -Trust Declaration.
The Employer and the Plan Administrator and the Plan -Trustee each warrants to every other party and
the Agent that any instruction or direction given, information furnished, or action taken by it is
according to the provisions of the Plan -Trust Declaration. Each party and the Agent may rely upon
any such instruction, direction, information, or action of any other party as being proper under the
Plan -Trust Declaration and the Plan and for all purposes. The party is not required to inquire into the
correctness or propriety of any such instruction, direction, information, or action.
Each party is fully protected in any action taken or not taken by it and cannot be deemed imprudent by
reason of taking or refraining from taking any action in good faith pursuant to its reasonable reliance
upon the advice of its counsel, provided that the party exercised reasonable due care in its selection of
its counsel.
Each party is responsible only for the proper exercise of his/her/its own powers, duties, responsibilities,
and obligations, and any party is not liable for any act or failure to act of another party, except as
provided below.
The Agent is not liable for a breach of fiduciary responsibility of any person under any circumstances,
including (but not limited to) the Agent's actual knowledge of the breach. The Agent is not
responsible to inform any person concerning any knowledge of any breach.
10.4 Anti -alienation
In addition to (and not by limitation upon) the provisions of the Plan and the Enabling Statute and
other applicable law, any interest available under the Plan -Trust, or any right to receive or instruct
payments under the Plan -Trust, or any Distribution or payment made under the Plan or distribution or
payment made under the Plan -Trust is not (either at law or in equity) subject to assignment or
alienation of any kind, whether by the voluntary or involuntary act of any interested person under the
Plan or Plan -Trust, except as expressly authorized by the Plan.
457b:G:Nati: trust:96Aug27
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rAh
Eligible Deferred Compensation Plan
Plan-Tnist Declaration
9. Accounts
9.1 Plan accounting is Plan -Trust accounting
Because this Plan -Trust Declaration provides that the Plan -Trustee shall not * receive Plan
Contributions, shall not make or receive repayment of Plan Loans, shall have no investment duties,
shall not give investment instructions, and shall not pay Plan Distributions, the Plan -Trustee need not
keep accounts of the Plan -Trust.
If a court finds that this Provision is invalid, the Plan -Trustee and the Plan Administrator shall prepare
the accounting in the form required by the court or by the Plan Administrator, and, consistent with
¶ 8.2 ["Plan -Trustee's special expenses" at page 10], the Plan -Trustee is entitled to pay from or be
reimbursed by the Plan -Trust assets all of its actual expenses incurred in preparing any accounting.
9.2 Plan audits
At any time the Plan Administrator may (but is not required to) engage an independent qualified public
accountant to examine the Plan's financial statements or internal control procedures. If the Plan
Administrator engages an independent accountant, the Plan Administrator must require that such
engagement provide that the examination be made according to generally accepted auditing principles
(or according to agreed -upon procedures that the Plan -Trustee approves in writing), and that the Plan -
Trustee is entitled to rely upon the accountant's examination and opinion and all reports relating to the
examination.
The Plan Administrator acknowledges that, since the Plan -Trustee does not handle transactions under
the Investments and does not keep accounts of the Plan -Trust, an examination by the independent
qualified public accountant may be the only means by which the Plan Administrator and the Plan -
Trustee may receive any assurance concerning the correctness of transactions and amounts under the
Plan Investments.
9.3 Court accounting
Except as otherwise ordered by a court having jurisdiction, no person other than the Plan
Administrator may require an accounting by the Plan -Trustee. If any accounting is requested or
required under this Provision, the Plan -Trustee and the Plan Administrator shall prepare the accounting
in the fornn required by the court or by the Plan Administrator, and, consistent with ¶ 8.2 ["Plan -
Trustee's special expenses" at page 10], the Plan -Trustee is entitled to pay from or be reimbursed by
the Plan -Trust assets ail of its actual expenses incurred in preparing any accounting.
9.4 Court -settled accounting or instructions
Notwithstanding anything in this Plan -Trust Declaration to the contrary, the Plan -Trustee has the
absolute right at any time to petition any appropriate court for a settlement of the Plan -Trust's
accounts or otherwise for the court's instructions in executing the Plan -Trustee's obligations under the
Plan -Trust created by this Plan -Trust Declaration. The only necessary party is the Plan Administrator.
But the Plan -Trustee may bring in as a party any other person or entity.
457b: G: Natl : trust: 96 Aug27
9 7- 48
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13
IV
Eligible Deferred Compensation Plan
Plan -Trust Declaration
10.22 Protection of Issuers
Any Issuer shall not be liable in acting according to any instruction, if in writing or otherwise
reasonably believed to be genuine, of its Contract Owner or other person that has the right to give
instructions under the terms of the Investment, and shall not be required to question (unless otherwise
provided by the applicable Investment) any action or inaction so instructed. The Issuer shall not be
required to take or permit any action or allow any benefit or privilege contrary to the terms of any
Investment which it may issue regarding the Plan.
10.23 Restitution and restoration
In addition to (and not by limitation upon) any other remedy, including (but not limited to) any legal,
equitable, remedial, or other relief, to the extent that any person breaches ¶ 1.4 ["Exclusive benefit" at
page 4], such person shall be personally liable to make good to the Plan -Trust (or, in an appropriate
case, to the applicable Participant or Beneficiary or Alternate Payee) any losses to the Plan -Trust
resulting from or arising out of each such breach, and to restore to the Plan any profits of such person
which have been made through the breaching person's improper use of Plan -Trust assets or income.
10.24 Rule against accumulations
Following ¶ 10.25, the rule against accumulations does not apply to the Plan -Trust.
10.25 Rule against perpetuities
The rule against perpetuities does not apply to the Plan -Trust.
10.26 Separability
If a court finds that any provision of the Plan -Trust Declaration is invalid, the Plan -Trust Declaration
shall be construed and enforced as if the invalid provision was not a provision of the Plan -Trust
Declaration, unless the court finds or the Plan -Trustee finds that such a construction of the Plan -Trust
Declaration would be clearly contrary to the intent of the Plan -Trust Declaration or would be contrary
to IRC § 457(g) or would violate the Enabling Statute.
10.27 Standard of care
The Plan -Trustee shall discharge its limited duties under this Plan -Trust Declaration with the diligence
under the circumstances then prevailing that a prudent person acting as a ministerial trustee of a trust
for which the trustee had no duties other than to maintain record title of the trust property would use in
the conduct of a like trust with alike aim to the purpose stated by 11.2 ["Purpose of the Plan -Trust"
at page 4].
457b:G:Natl:trust:96Aug27page 16
Eligible Deferred Compensation Plan
Plan-Tnist Declaration
The Plan -Trustee shall not be responsible for any act or omission of any nominee, custodian,
depository, accountant, counsel, or agent selected with reasonable care.
The Plan -Trustee shall not be responsible for any selection, decision, or instruction made by the
Employer or the Plan Administrator.
10.17 Mistaken contributions
Without consent by or notice to the Plan -Trustee, if any Contribution (or any portion of a
Contribution) is made by the Employer or an Employer by a good faith mistake of fact as provided by
the Plan, upon receipt in good order of a proper request by the Plan Administrator or the Employer,
the Agent may pay to the Employer the amount so requested for the purpose of returning a mistaken
Contribution under the Plan.
10.18 No Plan duties
Notwithstanding any reference to the Plan, the duties and obligations of the Plan -Trustee are limited to
those expressly stated by the Plan -Trust Declaration. The Plan -Trustee is not a party to the Plan. The
Plan -Trustee has no duty of any kind to read or have any knowledge of the Plan. The Plan -Trustee
shall act solely according to the provisions of the Plan -Trust Declaration together with applicable law.
10.19 No right other than under Plan
The establishment of the Plan -Trust and the purchase of any Investment under the Plan -Trust is not to
be construed as giving to any Participant or Beneficiary or other person any legal or equitable right; the
rights of Participants and Beneficiaries are solely under the Plan.
10.20 Notices
Requests for information, instructions, notices of any kind, claims or demands, legal process, and court
orders [each referred to in the Plan -Trust Declaration as a `hotice'] are properly made when given in i
the form provided below and addressed to the applicable party and to the name and address specified
by the Plan or otherwise in or according to this Plan -Trust Declaration.
To be legally effective, any notice given or delivered under this Agreement must be in writing, and is
deemed given if delivered personally (including a signed -for delivery made by a courier) or if mailed by
registered or certified mail (return receipt requested) or if delivered or transmitted by any other means
that includes acknowledgment or proof of delivery. Any such notice is deemed given when actually
received. But a receipt indicating that delivery was refused is deemed actual delivery.
10.21 Prohibited transaction
The Plan -Trustee may (but is not required to) establish a procedure for the periodic review of directed
investments and any other Plan -Trust investments to determine, in light of the facts and circumstances
known to the Plan -Trustee, whether any actual or proposed investment constitutes or would constitute
a prohibited transaction within the meaning of IRC § 503. If the Plan -Trustee in its sole discretion
finds that any investment constitutes or would constitute a prohibited transaction, the Plan -Trustee
shall promptly give notice to the Employer, and shall recommend that the Employer prevent or dispose
of the investment or otherwise prevent or remedy the transaction. If the Employer fails to prevent or
remedy a transaction that the Plan -Trustee finds is a prohibited transaction, the Plan -Trustee may (but
is not required to) take any action required or permitted by applicable law. However, if the Plan -
Trustee finds that a prohibited transaction causes or would cause the Plan -Trust to be maintained other
than for the exclusive benefit of Participants and their Beneficiaries or otherwise contrary to ¶ 1.4
["Exclusive benefit" at page 4], the Plan -Trustee shall take such action as is sufficient to cause the
Plan -Trust to be maintained for the exclusive benefit of Participants and their Beneficiaries.
45 7b: G: Natl : trust:96 A ug27
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page 15
Eligible Deferred Compensation Plan
Plan -Trust Declaration
11. Amendment or termination
11.1 Amendment of Plan -Trust
The Employer may amend this Plan -Trust Declaration at any time and without the consent of any other
person. Any amendment must be in writing. However, any amendment that would diminish the
protection of T 1.4 ["Exclusive benefit" at page 41 is absolutely void.
11.2 Termination of Plan -Trust
The PIan-Trust is permanent and irrevocable, except as provided below.
j11.2.1 no assets
The Plan -Trustee may ternunate the Plan -Trust if every Investment is closed or terminated or settled,
and there are no successor Investments, and there is no other Plan -Trust asset.
i
11.2.2 court order
The Plan -Trust may be terminated at any time upon court order by any appropriate court of the State
or of the United States. Upon such termination, the Plan -Trust Investments shall be transferred or used
as instructed by the court.
i
20 97— 48
457b:G:Natl:tr1st:96Aug27 page 18
Eligible Deferred Compensation Plan
Plan -Trust Declaration
The Plan -Trustee's duties under this Plan -Trust Declaration are solely ministerial. Without limiting the
comprehensive effect of the above, all parties understand that the Plan -Trustee has no duty, express or
implied, to review any investment or any investment, banking, securities, or insurance transaction, and
therefore shah have no liability for any failure to review any transaction.
Further, notwithstanding any ministerial duties of the Plan -Trustee provided under this Plan -Trust
Declaration or any duties required or rights permitted under applicable investment Law, the Plan -
Trustee shall not have any knowledge of any investment or of any transaction. Therefore, if
`knowledge" of the Plan -Trustee is or may be a prerequisite to imposing a duty upon or an element in
determining any liabilihj of the Plan -Trustee at law or in equity, the fact that the. Plan -Trustee has
possession of (or had or has a legal or equitable right to possess or obtain) any record of any
investment or any transaction shall not constitute `knowledge" of the Plan -Trustee.
If for any reason a court finds this Provision void or legally unenforceable, the Plan -Trustee may resign
on one Business Day's written notice to the Employer. Also, any indemnification rights shall apply on
the basis that it was reasonable for any person to assume that this Provision is legally enforceable until
the supreme court or the highest court of the state or jurisdiction expressly orders otherwise.
10.28 Taxes
All taxes of any hind (including but not limited to income tax, gift tax, estate tax, inheritance tax, or
similar transfer taxes of any kind, real or personal property tax, insurance premium tax, or transfer tax
incurred in connection with the investment, reinvestment, or distribution of any Plan -Trust assets) that
may be levied or assessed upon the Plan -Trust, its income or assets, shall, if allocable to the Account of
a particular Participant or Beneficiary, be charged to that Plan Account, and if not so allocable, shall be
charged proportionately to all Plan Accounts, and shall be paid from the Plan -Trust and charged
against the applicable Account or all Accounts. However, the Plan -Trustee is not obliged to pay any
tax so long as it contests the validity of the tax.
10.29 Third -party reliance
Any person receiving property from, delivering property to, or having any other transaction with the
Plan -Trustee is not required to consider the propriety of the acts of the Plan -Trustee or inquire into the
application of the property or money received by the Plan -Trustee, as long as the person is acting in
good faith.
10.30 Venue
For any action at law or in equity in which the Plan -Trustee is a party, exclusive jurisdiction and
exclusive venue shall be in the courts sitting in and for the district in which the Plan -Trustee has
his/herfits principal place of business.
9'7 - 48
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457b:G:Natl:trust:96Aug27 page 17
Eligible Deferred Compensation Plan
Plan -Trust Declaration -
MAKING IT LEGAL
NOW THEREFORE, in recognition of the premises recited above, and in consideration of the
provisions stated by this Plan -Trust Declaration, and intending to be legally bound by this written Plan -
Trust Declaration, the Employer and the Plan Administrator and the Plan -Trustee signed below.
CITY OF MIANH
as Employer
BY:
date
CITY OF MIANII
as Plan Administrator
BY:
date
Plan -Trustee
BY:
date
457b: G: Natl : trust: 96 Aug27
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