83-3661 ICMA Retirement Plan1
1
A RESOLUTION OF THE CITY OF SALINA, KANSAS ("Employer"),
AMENDING THE DEFERRED COMPENSATION PLAN ADOPTED BY RESOLUTION
NUMBER 3426.
WHEREAS, the Employer maintains a deferred compensation plan for its
employees which is administered by the ICMA Retirement Corporation (the
"Administrator"); and
WHEREAS, the Administrator has recommended changes in the plan
document to comply with recent federal legislation and Internal Revenue Service
Regulations governing said plans; and
WHEREAS, the Internal Revenue Service has issued a private letter
ruling approving said plan document as complying with Section 457 of the
Internal Revenue Code; and
WHEREAS, other public employers have joined together to establish the
ICMA Retirement Trust for the purpose of representing the interests of the
participating employers with respect to the collective investment of funds held
under their deferred compensation plans; and
WHEREAS said Trust is a salutory development which further advances
the quality of administration for plans administered by the ICMA Retirement
Corporation.
NOW THEREFORE BE IT RESOLVED that the Employer hereby adopts
the deferred compensation plan, attached hereto as Appendix A, as an amendment
and restatement of its present deferred compensation plan administered by the
ICMA Retirement Corporation, which shall continue to act as Administrator of
said. plan; and
BE IT FURTHER RESOLVED that the Employer hereby executes the
ICMA Retirement Trust, attached hereto as Appendix B; and
BE IT FURTHER RESOLVED that the Employer hereby adopts the trust
agreement with the ICMA Retirement Corporation, as appers at Appendix C hereto
as an agreement and restatement of its existing trust agreement with the ICMA
Retirement Corporation, and directs the ICMA Retirement Corporation, as Trustee,
to invest all funds held under the deferred compensation plan through the ICMA
Retirement Trust as soon as is practicable; and
BE IT FURTHER RESOLVED that the City Manager shall be the
coordinator for this program and shall receive necessary reports, notices, etc.
from the ICMA Retirement Corporation as Administrator, and shall cast, on behalf
of the Employer, any required votes under the program. Administrative duties to
carry out the plan may be assigned to the appropriate departments.
BE IT FURTHER RESOLVED that the Deferred Compensation Plan
adopted by Resolution Number 3426 be amended in accordance with this resolution
Adopted by the Board of Commissioners and signed by the Mayor this
19th day of September, 1983.
(SEAL)
ATTEST:
�/&, -
arrison,City Clerk
J-oFn—F. Burgets1("ayor
APPENDIX A
("EMPLOYER")
DEFERRED COMPENSATION PLAN
1. INTRODUCTION -
include any amount,excludable from gross income'under thisr
The Employer hereby.- establishes the Employees Deferred
Plan or any, other, plan described, in section 457(b), of the -
Compensation Plan, hereinafter referred to as the "Plan." The Plan
Internal Revenue Code; any amount excludable from gross
consists of the provisions set forth in this document.
income under section 403(b) of the Internal Revenue Code,
The primary purpose of this Plan is to provide retirement income
or any other amount excludable from gross income for
and other deferred benefits to the Employees of the Employer in -
federal income tax purposes. Includible Compensation shaW
accordance with the provisions of, section, 457 of the. Internal
be determined, without regard to any community property
Revenue Code of 1954, as amended.laws.
'bean
This. Plan shall agreement solely. , between the Employer
. 2.07 Joinder Agreemeft An agreement entered into between an
and participating.Employees.
Employee and the Employer, including any amendments or
modifications thereof. Such agreement shall fix the aMoVhtr'
11 DEFINITIONS
of Deferred Compensation, specify a preference among the
2.01 Account: The bookkeeping account maintained for each
investment alternatives designated by the Employer,
Participant reflecting the, cumulative amount of - thi
Participant's Deferred. Compensation, including any income,
designate the -Employee's Beneficiary or Beneficiaries, and
incorporate the terms, conditions, and provisions of the Plan
gains, losses, or increases or decreases in market value
by reference..
attributable to the Employees investment of the Participant's
2.08, Normal Compensation: The amount of compensation which
Deferred Compensation, and further reflecting any distribu-
would be payable to a Participant by. the Employer fora.
tions to the Participant or the Participants Beneficiary and
taxable year if no Joinder Agreement were in effect to defGv
any fees or expenses charged against such Participant's
compensation under this Plan.
Deferred Compensation.
2.09 Normal Retirement Age: Age 70, unless the Participant has
7-02 Administrator The person or persons named to carry out
elected an alternate Normal Retirement Age by written
certain nondiscretionary administrative functions under the
instrument delivered to the Administrator prior to Separation
Plan, as hereinafter described. The Employer may remove
from Service. A Participant's Normal Retirement Age
any person as Administrator upon 60 days advance notice in
determines (a) the latest time when benefits may commence
writing to such person, in which case the Employer shall
under this Plan (unless the Participant continues employ -
name another person or persons to act as Administrator. The
ment after Normal Retirement Age), and (b) the period during
Administrator may resign upon 60 days advance notice in
which a Participant may utilize the catch-up limitation of
writing to the Employer, in which the case the Employer shall
Section 5.02 hereunder. Once a Participant ha&to any extent
name another person or persons to act as Administrator.
utilized the catch-up limitation of Section 5.02. his Normal
2.03 Beneficiary: The person or persons designated by the
Retirement Age may., not be changed.
A Participant's alternate Normal Retirement Age may not
Participant in his Joinder Agreement who shall receive any
be earlier than the earliest date that the Participant will
benefits payable hereunder in the event of the Participant's
become eligible to retire and receive unreduced retirement
death.
benefits under the Employer's basic retirement plan covering
2.04 Deferred Compensation: The amount of Normal Compensa-
the Participant and may not be later than the date the
tion otherwise payable to the Participant which the
Participant attains age 70. If a Participant continues
Participant and the Employer mutually agree to defer
employment after attaining age 70, not having previously
hereunder, any amount credited to a Participants Account by
elected an alternate Normal Retirement Age, the Participant's
reason of a transfer under Section 6.03, or any other amount
alternate Normal Retirement Age shall not be later than the
which the Employer agrees to credit to a Participant's
mandatory retirement age, if any, established by the
Account.Employer,
or the age at which the Participant actually
05 Employee., Any individual . who provides -services for the
separates from service if the Employer has no mandatory
Employer, whether as an employee of the Employer or as an
retirement age. It the Participant will not become eligible to
independent contractor, and who has been designated by the
receive benefits under a basic retirement plan maintained by
Employer as eligible to participate in the Plan.
the Employer, the Participant's alternate Normal Retirement
Age may not be earlier than attainment of age 55 and may not
2.06 Includible Compensation: The amount of an Employee's
be, later than attainment of age 70.
compensation from, the Employer for a taxable year that is
attributable to services performed for the Employer and that
2.10 Participant: Any Employee who has joined the Plan pursuant
is, includible in. the Employee's gross income for the taxable
to the requirements of Article IV.
year for federal: income- tax purposes, such. term, does not
2.11, Plan, Year. Thee -calendar year.
1
Z12 Retirement: The first date upon which both of the following
shall have occurred with respect to a Participant: Separation'
from Service and attainment of Normal Retirement Age.
2.13 Separation from Service: Severance of the Participant's
employment with the Employer. AParticipant shall be
deemed to havesevered his employment with the Employer
for purposes of this Plan when, in accordance with the
established practices of the Employer; the employment
relationship is considered to have actually terminated. In the
case of a Participant who is an independent contractor of the
Employer, Separation from Service shall be deemed to have
occurred when the . Participant's contract under which
services, -,ares performed has. completely expired and
terminate, 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 not anticipated that the
Participant will become an Employee of the Employer.
1111. ADMINISTRATION:.
3.01 Duties of Employer. The Employer shalI 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.
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 Participants' 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.
IV. PARTICIPATION IN THE PLAN
COT Initial Participation: 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.
4.02 Amendment of Joinder Agreement: A Participant may amend
an executed Joinder Agreement to change the amount of
compensation not yet earned which is to be deferred
(including the reduction of such future deferrals to zero) orto
change his investment preference (subject to such restric-
tions as may result from the nature or terms of any investment
made by the Employer). Such amendment shall become
effective as of the beginning of the calendar month
commencing, after the date the amendment is executed. A
Participant may at any time amend his Joinder Agreement to
change the designated Beneficiary and such amendment
shall become effective immediately.
V. LIMITATIONS ON DEFERRALS
plan). For purposes of this. Section 5.02, a Participant's
Includible Compensation for the current taxable year shall be
deemed to include any Deferred Compensation for the
taxable year in excess of the amount permitted under the
Normal Limitation, and the Participant's Includible Compen-
sation for any prior taxable year shall be deemed to exclude
any amount that could have been deferred under the Normal
Limitation for such prior taxable year.
5.03 Section 403(b) Annuities: For purposes of Sections 5.01 and
5.02, amounts contributed by the Employer on behalf of a
Participant for the purchase of an annuity contract described
in section 403(b) of the Internal Revenue Code shall be
treated as if such amounts constituted Deferred Compensa-
tion under -this Plan for the taxable year in which the
contribution was made . and shall thereby reduce the
maximum amount that may be deferred for such taxable year.
VI. INVESTMENTS AND ACCOUNT VALUES
6.01• Investment of Deferred' Compensation: All investments. of
Participants' Deferred Compensation made by the Employer,
including all property- and rights purchased with . such
amounts and all income attributable thereto, shall be the sole
property of the Employer and shall not be held in trust for
Participants or as collateral security for the fulfillment of the
Employer's obligations under the Plan. Such property shall
be subject to the claims of general creditors of the Employer,
and no Participant or Beneficiary shall have any vested
interest or secured or preferred position with respect to such
property or have any claim against the Employer except as a
general creditor.
6.02 Crediting of Accounts: The Participant's Account shall reflect
the amount and value of theinvestments or other property"
obtained by the Employer through the investment of the
Participant's Deferred Compensation. 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
investment of a Participant's Deferred Compensation. Each
Participant shall receive periodic reports, not less frequently
than annually, showing the then -current value of his
Account.
6.03 Acceptance of Transfers: Pursuant to an appropriate written
agreement, the Employer may accept and credit to a
Participant's Account amounts transferred from another
employer within the same State representing amounts held
by. such other employer under an eligible State deferred
compensation plan described in section 457 of the Internal
Revenue Code. Any such transferred amount shall not be
treated as a deferral subject to the limitations of Article V,
provided however, that the actual amount of any deferral
d th I f h' h th t f d h 11
5.01 Normal Limitation: Except as provided in Section 5.02, the
un er e p an rom w is a rans or is ma e s a be taken
maximum amount of Deferred Compensation for any
into account in computing the catch-up limitation under
Participant for any taxable year shall not exceed the lesser of
Section 5.02.
$7,500.00 or 33 1/3 percent of the Participant's Includible
6.04 Employer Liability: In no event shall the Employer's liability to
Compensation for the taxable year. This limitation will
pay benefits to a Participant under Article VI exceed the value
ordinarily be equivalent to the lesser of $7,500.00 or 25
of the amounts credited to the Participant's" Account; the
percent of the Participant's Normal Compensation.
Employer shall not be liable for losses arising from
5.02 Catch-up Limitation: For each of the last three (3) taxable
depreciation or shrinkage in the value of any investments
years of a Participant ending before his attainment of Normal
acquired under this Plan.
Retirement Age, the maximum amount of Deferred
Compensation shall be the lesser of: (1) $15,000 or (2) the
VII. BENEFITS
sum of (i) the Normal Limitation for the taxable year, and (ii)
that portion of the Normal Limitation for each of the prior
7.01 Retirement Benefits and Election on Separation from
taxable" years of the Participant commencing after 1978
Service: Except as otherwise provided'in this Article VII, the
during; which the Plan wasin existence and the Participant
distribution of. a Participant's Account_ shall commence
was eligible to participate in the Plan (or in any other plan
during the second calendar month after the close of the Plan
established. undersection457 of the. Internal Revenue Code
Year of the Participant's Retirement; and the distribution of.. .
by an employerwithinthe same State -as the Employer) "less,
such Retirement benefits shall be made in accordance with
the amount of Deferred Compensation for each such prior
one of the payment options described in Section 7.02.
taxable: year- (including. amounts deferred under such other "
Notwithstanding then foregoing., the Participant:"may., irrevo-
• cably elect within 60 days following Separation from Service
to have the distribution of benefits commence on a date other.
than that described in the preceding sentence which is at
least 60 days after the date such election is delivered in
writing to the Employer and forwarded to the Administrator
but not later than 60 days after the close of the Plan Year of
the Participant's Retirement.
.02 Payment Options: As provided in Sections 7.01, 7.05 and 7.06,
a Participant may elect to have the value of his 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 Participant,
continuing until his Account is exhausted;,
(b). One lump sum payment;
(c) Approximately, equal monthly, quarterly,,.semi-annual
or annual payments, calculated to continue fora period
certain chosen -by the Participant; ,
(d) Payments equal to payments.madeby the issuer of a
retirement annuity policy acquired by the Employer, '
(e) Any other payment option elected by the Participant
and agreed to by the Employer.
A Participants election of a payment option must be made at
least 30 days before the payment of benefits is to commence.
If a Participant fails to make a timely election of a payment
option; benefits shall be paid monthly under option (c) above.
for a period of five years.
7.03 Limitation on Options: No payment option may be selected
by the Participant under Section 7.02 unless the present value
of the payments to the Participant, determined as of the date
benefits commence, exceeds 50 percent of the value of the
Participant's Account as of the date benefits commence.
Present value determinations under this Section shall .be .
made by the Administrator in accordance with the expected
return multiples set forth in section 1.72-9 of the Federal
Income Tax Regulations (or any successor provision to such
regulations).
7.04 Post-retirement Death Benefits: Should the Participant die
after he has begun to receive benefits under a payment
option, the remaining payments, if any, under the payment
option shall be payable to the Participant's Beneficiary
commencing within 60 days after the Administrator receives
proof of the Participant's death, unless the Beneficiary elects
payment under a different payment option at least 30 days
prior to the date that the first payment becomes payable to
the Beneficiary. In no event shall the Employer or
Administrator be liable to the Beneficiary for the amount of
any payment made in the name of the Participant before the
Administrator receives proof of death of the Participant.
Notwithstanding the foregoing, payments to a Beneficiary
shall not extend over a period longer than (i) the Beneficiary's
life expectancy if the Beneficiary is the Participant's spouse
or (ii) fifteen (15) years if the Beneficiary is not the
Participant's spouse. If no Beneficiary is designated in the
Joinder Agreement, or if the designated Beneficiary does not
Sections 7.01 or 7.06, a death benefit equal to the value of the
Participant's Account shall be payable to the Beneficiary
commencing.no later than 60 days after the close of the Plan
Year in which the Participant would have attained Normal
Retirement Age. Such death benefit shall be paid in a lump
sum unless the Beneficiary elects a different payment option
within 90 days of the Participants death. A Beneficiary who
may elect a payment option pursuant to the provisions of the
preceding sentence shall be treated as if he were a Participant
for purposes of determining the payment options available
under Section 7.02; provided, however, that the payment
option chosen by the Beneficiary must provide for payments'
to the Beneficiary over a period no longer .than the life
expectancy of the Beneficiary if the Beneficiary is the
Participant's spouse and must provide for payments over a
period not in excess of fifteen (15) years if the Beneficiary is.
not the Participant's spouse.
T 00' Disability: In the event a Participant becomes disabled before
the commencement of Retirement, benefits=under Section
TOT, the Participant mayr elect to -commence benefits under
one of the payment options described in Section 7:02 on the
last°day of` the °month following a determination of disability,
by the Employer... The Participant's request for such -
determination must be made within a reasonable time after
the impairment. which constitutes the disability. occurs. A
Participant shall be considered disabled for purposes of this
Plan if he is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death
or be of long -continued .and` indefinite duration. The
disability of any Participant shall be determined. in
accordance with uniform principles consistently applied and
upon the- basis of such medical evidence as the Employer
deems, necessary and desirable.
7.07 Unforeseeable Emergencies: In the event an unforeseeable'.
emergency occurs, a Participant may -apply to the Employer
to receive that part of the value of hisaccount that is
reasonably needed to satisfy the emergency need. if such an
application is approved by the Employer, the Participant shall
be paid onlysuch amount as the Employer deems necessary'
to meet the emergency need, but payment shall not be made
to the extent that the financial hardshipmay 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. An unforeseeable emergency shall be deemed to
involve only circumstances of severe financial hardship to the
Participant resulting.from asudden and unexpected illness or
accident of the Participant or of a dependent (as defined in
section 152(a) of the Internal Revenue Code) of the
Participant, loss of the Participant's property due to casualty,
or other similar and extraordinary unforeseeable circum-
stances 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
unforeseeable emergencies. .The determination as to
whether such an unforeseeable emergency exists shall be
based on the merits of each individual case.
survive the Participant for a period of fifteen (15) days, then
Ylll. NON -ASSIGNABILITY
the commuted value of any remaining payments under the
No Participant or Beneficiary shall have any right to commute,
payment option shall be paid in a lump sum to the estate of
sell, assign, pledge, transfer or otherwise convey or encumber the
the Participant. If the designated. Beneficiary survives the
right to receive any payments hereunder, which payments and
Participant for a period of fifteen (15) days, but does not
rights are expressly declared to be non_assignable and non -
continue to live for the remaining period of payments under
transferable.
the payment option (as modified, if necessary, in conformity.
with the third sentence of this section), then the commuted
.
IX. RELATIONSHIP` TO OTHER PLANS AND EMPLOYMENT
- value of any remaining payments under the payment option
AGREEMENTS
shall be paid in a lump sum to the estate of the Beneficiary.
This Plan serves in addition to any other retirement, pension, or
benefit plan or system presently in existence or hereinafter
7:05 Pre -retirement Death' Benefits: Should the Participant die,
established for the benefit of the Employer's employees, and
before, he has: begun to receive the benefits; provided by
participation hereunder shall not affect benefits receivable under
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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 anything herein be construed to modify the terms of any
mployment contractor agreement between a Participant and the
mployer.
X. AMENDMENT OR TERMINATION OF PLAN
The Employer may at any time amend this Plan provided that it .
transmits suchamendmentimwritingtothe Administrator at least -
30 days prior to the effective date of the amendment. The consent.
of the. Administrator shall not be required in order for such
amendment to become effective, but the Administrator shall be
under no obligation to continue acting.as Administrator hereunder
if it disapproves of such amendment. The Employer may at any
time terminate this: Plan:
The: Administrator may at -any. timepropose an amendment to:
the Plan -by -an instrument -in writing` transmitted to the Employerat
least$0days before the effective date of 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 hereunder.
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.
XI. APPLICABLE LAW
This -Plan shall be construed, under the laws of the state where
the Employer is=located and is established with the intent that it
meetthe requirements of an"eligible State deferred compensation
plan" under section 457 of the Internal Revenue Code of 1954, as
amended. The provisions of this Plan shall be interpreted wherever
possible in conformity with the requirements of that section.
XII: GENDERAN®:NUMBER':.
The masculine pronoun; wheneverusedherein; shall include the,,
feminine pronoun, and the:singularshall include the plural, except
where the context• requires otherwise.
fl
ARTICLE I. Name and Definitions
DECLARATION OF TRUST
of
ICMA RETIREMENT TRUST
SECTION 1.1. Name: The Name of the Trust created hereby is the
ICMA Retirement Trust.
SECTION 1.2. Definitions. Wherever they are used herein, the.
following terms shall have the following respective meanings:
(a) By -Laws. The By -Laws referred -to in Section 4.1 hereof, as
amended from time to time.
(b) Deferred Compensation Plan. A deferred compensation plan
established and maintained by a Public Employerforthe purpose
of providing retirement income and other deferred benefits to its
employees in accordance with the provisions of section 457 of
the Internal. Revenue Code of 1954. as amended.
(c) Guaranteed- Investment Contract. A contract entered into by
the Retirement Trust with insurance companies that provides for
a guaranteed rate of return on investments made pursuant to
such contract.
(d) ICMA. The International City Management Association.
'e) ICMA/RC Trustees.. Those Trustees elected by the Public
mployers .who, in accordance with the provisions° of Sectiom
1(a) hereof, are also members of the Board of Directors of ICMA
r RC.
(f) Investment Adviser. The Investment Adviser that enters into a
contract with the Retirement Trust to provide advice with respect
to investment of the Trust Property.
(g) Employer Trust. A trust created pursuant to an agreement
between RC and a Public Employer for the purpose of investing
and administering the funds set aside by. such employer in
connection with its deferred compensation agreements with its
employees.
(h) Portfolios. The Portfolios of investments established by the
Investment Adviser to the Retirement Trust, under the
supervision of the Trustees, for the purpose of providing
investments for the Trust Property.
(i) Public Employee Trustees. Those Trustees elected by the
Public Employers who, in accordance with the provisions of
Section 3.1(a) hereof, are full-time employees of Public.
Employers.
(j) Public Employer. A unit of state or local government, or any
agency or instrumentality thereof, that has adopted a Deferred
Compensation Plan and has executed this Declaration of Trust.
(k) RC. The International City Management Association
Retirement Corporation.
(1) Retirement Trust. The Trust created by this Declaration of
Trust.
m) Trust Property. The amounts held in the Retirement Trust on
eh If
of the Public Employers. The Trust Property shall include
ny income resulting from the investment of the amounts so held.
(n) Trustees. The Public Employee Trustees and ICMA/RC
Trustees elected by the Public Employers to serve as members of
the Board of Trustees of the Retirement Trust.
APPENDIX 8
ARTICLE II.. Creation, and Purpose of the Trust; Ownership of Trust
Property
SECTION 2.1. Creation. The Retirement Trust is created and
established by the execution of this Declaration of Trust by the Trustees
and the'. participating. Public Employers,
SECTION, 2:2: Purpose. The purpose of the Retirement: Trust is to
provide for the commingled' investment of funds held by the Public
Employers•in connection with. their Deferred Compensation Plans. The
Trust. Property shall be invested in the Portfolios, in Guaranteed
Investment Contracts and in other investments recommended by the
Investment Adviser under the supervision of the Board of Trustees.
SECTION 2.3 Ownership of Trust Property. The Trustees shall have
legal, title to the Trust Property. The: Public Employers shall be the
beneficial owners of the Trust Property,
ARTICLE 111. Trustees
SECTION 3.1. Number and Qualification of Trustees.
(a) The Board of Trustees shall consist of nine Trustees. Five of
the Trustees shall be full-time employees of a• Public. Employer
(the Public Employee Trustees) who are- authorized by such
Public Employer to serve as Trustee. The remaining four Trustees
shall consist of two -persons -who, at the time of election to the
Board of Trustees, are members of the Board of Directors of
ICMA and two persons who, at the time of election, are members
of the Board of Directors of RC (the ICMA/RC Trustees). One of
the Trustees who is a director of ICMA, and one of the Trustees
who is a director of RC, shall, at the time of election, be full-time
employees of a Public Employer.
(b) No person may serve as a Trustee for more than one term in
any ten-year period.
SECTION 3.2. Election and Term.
(a) Except for the Trustees appointed to fill vacancies pursuant
to Section 3.5 hereof, the Trustees shall be elected by a vote of a
majority of the Public Employers in accordance with the
procedures set forth in the By -Laws.
(b) At the first election of Trustees, three Trustees shall be
elected for a term of three years, three Trustees shall be elected
for a term of two years and three Trustees shall be elected for a
term of one year. At each subsequent election, three Trustees
shall be elected for a ferm of three years and until his or her
successor is elected and qualified.
SECTION 3.3. Nominations. The Trustees who are full-time
employees of Public Employers shall serve as the Nominating
Committee for the Public Employee Trustees. The Nominating
Committee shall choose candidates for Public Employee Trustees in.
accordance with the procedures set forth in the By -Laws.
SECTION 3.4. Resignation and Removal.
(a) Any Trustee may resign as Trustee (without need for prior or
subsequent accounting) by an instrument in writing signed by the
Trustee and delivered to the other Trustees and such resignation
shall be effective upon such delivery, or at a later date according
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to the terms of the instrument. Any of the Trustees may be
removed for cause: by a vote of .a majorityy of the Public
Employers.
(b) Each Public Employee Trustee shall resign his or her position
as Trustee within sixty days of the date on which he or she ceases
to be a full-time employee of a. Public Employer.
JgECT'ON
3.5. Vacancies. The term of office of a Trustee shall'
inate and a vacancy shall occur in the event of the death;
nation, removal, adjudicated incompetence or other incapacity to
perform the duties of the office of a.Trustea. In the case of avacancy, the
remaining Trustees shall appoint such person as they in their discretion
shall see:fit (subject to the: limitations set forth in this Section), to serve.
for the unexpired portionof the term of the Trustee who has resigned or
otherwise ceased tobe a Trustee. The appointment shall be made by a,
written instrument signed by a>majority of the Trustees. The person
appointed must be the same. type of Trustee (i.e., Public. Employee:;
Trustee or ICMA/RC Trustee) as the person who has ceased to be a.
Trustee: An appointment of a Trusteemaybemade.inanticipationofa.
vacancy.to-occur at;a later,date by:reasonof'retirement :or. resignation, .
provided.that such:appointmentshall'not become effective prior to such
retirement --or;, resignation:: Whenever_, a, vacancy, inethe. number of
Trustees shall` occur; until such .vacancy is filled,. -aa: provided. in this,
Section 3.5; the Trustees inofficei regardless of their number, shall have
allthe powers granted to the Trustees and shall discharge all the duties
imposed upon the Trustees by this Declaration. A written instrument-
certifying-
nstrumentcertifying, the existence of such vacancy signed by a majority: of the
Trustees shall be conclusive evidence of the existence of such vacancy.
SECTION 3.fi:,,Trustees Serve in- Representative Capacity. By
executing this Declaration, each Public. Employer agrees that the Public
Employee Trustees elected by the Public Employers are authorized to
act as agents and representatives of the Public Employers collectively.
ARTICLE IV. Powers of Trustees
SECTION 44.1. General Powers. The Trustees shall have the power to
duct the business of the Trust and to cavy on its operations. Such
er shall include, but shall not be limited to, the power to:
(a) receive the Trust Property from the Public Employers or from
a Trustee of any Employer Trust;
(b) enter into a contract with an Investment Adviser providing;
among. other things, for the establishment and operation of the
Portfolios, selection of the Guaranteed Investment Contracts in
which the Trust Property may be invested, selection of other
investments for the Trust Property and the payment of reasonable
fees to the Investment Adviser and to any sub -investment adviser
retained by the Investment Adviser,
(c) review annually the performance of the Investment Adviser
and approve annually the contract with such Investment Adviser,
(d) invest and reinvest the Trust Property in the Portfolios, the
Guaranteed Investment Contracts and in any other investment
recommended by the Investment Adviser, provided that if a
Public Employer has directed that its, monies be invested in
specified Portfolios or in a Guaranteed Investment Contract, the
Trustees of the Retirement Trust shall invest such monies in
accordance with such directions;
(e) keep such portion of the Trust Property in cash or cash
balances as the Trustees, from time to time, may deem to be in the
best interest of the Retirement Trust created hereby, without
liability for interest thereon;
(f) accept and retain for such time as they may deem advisable
any securities or other property received or acquired by them as
Trustees hereunder, whether or not such securities or other
property wouldnormally be purchased as investments here-
under
times show that all such investments. are a part of the Trust
Property,
(h) make; execute, acknowledge,. and deliver any and all
documents of transfer and conveyanceand anyand all other
instruments that may be necessary or appropriate to carry out the
powers herein granted;
(i) vote upon any stock, bonds, or other securities; give general.
or special proxies or powers of attorney with or without power of
substitution; exercise any conversion privileges, subscription
rights, or other options, and make any payments incidental
thereto; oppose,, or consent to, or otherwise participate in,
corpo.rate°reorganizations=or other changes, affectingcorporate•
securities;,: and ;delegate discretionary powers;. and -pay any.
assessments or,chargesin connection therewith; and generally:
exercise any of -the powers -of an owner with respect to stocks, .
bonds, securities or other property held as: part'of the Trust
Property;
(j)''enterinto contracts or arrangements, for:goods,or-services,
required ins: connection':withe thee- operation �•,of,-thei Retirement,-
Trust;.including. butnot limitedsto; contractswith custodians and
cont;for the- provision of'administrativesservices,,
(k)` borrow, or raise: money for the: purpose, of 'the- Retirement
Trustin such amount, and upon such terms and conditions, as the
Trustees shall deem advisable; provided that the aggregate
amount of such borrowings shall not exceed 30% of the value of
the Trust Property. No personlending, money to the Trustees.
shall be bound .to see the application of the money, lent or to
inquire into its. validity; expediency or propriety of any such
borrowing;
(1) incur reasonable expenses as required forthe operate
ion of th.
Retirement: Trust and deduct such expenses from the Trust
Property;
(m) pay expenses.• properly allocable to the Trust Property
incurred in connection with the Deferred Compensation Plans or
the Employer Trusts and deduct such expenses from that portion
of the Trust Property beneficially owned by the Public Employer
to whom such expenses are properly allocable; , .
(n) pay out of the. Trust Property all real and personal property
taxesi income taxes and other taxes ofanyand all kinds which, in
the opinion of the Trustees, are properly levied, or assessed
under existing or future laws upon, or in respect of, the Trust -
Property and allocate any such taxes to the appropriate accounts;
(o) adopt, amend and repeal the By-laws, provided that such By-
laws are at all times consistent with the terms of this Declaration
of Trust;
(p) employ persons to make available interests in the Retirement
Trust to employers eligible to maintain adeferred compensation.
plan under section 457 of the Internal Revenue Code, as
amended;
(q) issue the Annual Report of the Retirement Trust, and the
disclosure documents and other literature used by the
Retirement Trust;
(r) make loans, including the purchase of debt obligations,
provided that all such loans shall bear interest at the current
market rate;
(s) contract for, and delegate any powers granted hereunder to,
such officers, agents, employees, auditors and attorneys as the
Trustees may select, provided that the Trustees may not delegate
the powers set forth in paragraphs (b), (c) and (o) of this Section
4.1 and may not delegate any powers if such delegation would
violate their fiduciary duties;
(t) provide for the indemnification of the officers and Trustees of
the Retirement. Trust and purchase fiduciary insurance -
(g) cause any securities or other property. held as. part of the
(u) maintain books and records, including separate accounts for
Trust -Property- to. be registered, in- the -name of the: Retirement:
each. Public Employer: or Employer- Trust -and. such additional.
' Trust orin.the name of a nominee,and to hold any investments in
separate accounts as are required under, and consistent with, the,
bearer form,. but the. boo ksand.records of the Trustees shall at all
Deferred Compensation Plan. of each Public Employer, and
(v) do all such acts, take all such proceedings, and exercise all
such rights and privileges, although not specifically mentioned
herein, as the. Trustees may deem necessary or appropriate to
administer the Trust Property and to carry out the purposes of the
Retirement Trust.
SECTION 4.2. Distribution of Trust Property. Distributions of the
Trust Property shall be made to, or on behalf of, the Public Employer, in
dance with the terms of the Deferred. Compensation Plans or
yer Trusts. The Trustees: of the Retirement. Trust shall be fully
p c
ted in making payments in accordance with the directions of the
ePublic Employers or the Trustees of theEmployer Trusts without
ascertaining whether such payments are in compliance with. the
provisions of the Deferred Compensation Plans or. the agreements
creating the Employer Trusts.
SECTION 4.3. Execution of Instruments. The . Trustees may
unanimously designate any one or more of the Trustees to execute any
instrument or document on behalf of all, including but not limited to the
signing or, endorsement of any check and the signing of any
applications, insurance and other contractsi and'the action of such
designated Trustee or Trustees shall have the sameforce and effect as if
taken by all the: Trustees.
ARTICLE V. Duty of Care and Liability of Trustees
SECTION 5.1. Duty of Care. In exercising the powers hereinbefore
granted to the Trustees, the Trustees shall perform all acts within their
authority for the exclusive purpose of providing benefitsfor the Public
Employers, and shall perform such acts with the care, skill, prudence
and diligence in the circumstances then prevailing.that a prudent person
acting in a like capacity and familiar with such matters would use in the
conduct,of an enterprise -of a like character and with like aims..
SECTION 5.2. Liability. The Trustees shall not be liable for any
mistake of judgment or other action taken in good faith, and for any
action taken or omitted in reliance in good faith upon the books of
account or other records of the Retirement Trust, upon the opinion of
counsel, or upon reports: made to the Retirement Trust by any of its
oWrs, employees or agents or by the Investment Adviser or any sub-
1i ment adviser, accountants, appraisers_ or other experts or
Itants selected with: reasonable care. by the Trustees, officers or
yees of the Retirement Trust. The Trustees shall also not be liable
for any loss sustained by theTrust Property by reason of any investment
made in good faith and in accordance with thestandard of care set forth
in Section 5.1.
SECTION 5.3. Bond. No Trustee shall be obligated to give any bond
or other security for the performance of any of his or her duties
hereunder.
ARTICLE VI. Annual Report to Shareholders ~
The Trustees shall annually submit to the Public Employers a written
report of the transactions of the Retirement Trust, including financial
statements which shall be certified by independent public accountants
chosen by, the Trustees.
ARTICLE VII. Duration or Amendment of Retirement Trust
SECTION .7.1. Withdrawal. A Public Employer may, at any time, with-
draw from.this Retirement Trust by delivering to the Board of Trustees a
statement to:that effect. The withdrawing Public Employer's beneficial
interest in the Retirement Trust shall be paid out to the Public Employer
or to the Trustee of the Employer Trust, as appropriate.
SECTION 7.2. Duration. The Retirement Trust shall continue until
terminated by the vote of a majority of the Public Employers, each
casting one vote. Upon termination, all of the Trust Property shall be
paid out the Public Employers orthe Trustees of the Employer Trusts,
as appropriate.
SECTION 1.3_ Amendment. The Retirement Trust may amended'
by the vote of a majority of the Public Employers, each casting one vote.
SECTION 7.4. Procedure: A resolution to terminate. or amend the
Retirement Trust or to remove a Trustee shall be submitted to a vote of
the Public Employers if: (a) a majority of the Trustees so direct, or (b) a.
petition requesting, a- vote, signed by not less than 25% of the Public..
Employers, ,is submitted to the Trustees.
ARTICLE Vill. Miscellaneous
SECTION 8.1. Governing Law. Except as otherwise required by state
or local law, this Declaration of Trust and the, Retirement Trust hereby
created, shall be construedandregulated by the.laws of the District of
Columbia.
SECTION 8.2.- Counterparts. This Declaration may-be:executed by -
the Public Employers and Trustees in two or more counterparts, each of
which shall be deemed an original but all of which together shall
constitute one and the same instrument.
3;.
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TRUST AGREEMENT WITH
THE. ICMA RETIREMENT CORPORATION
AGREEMENT made by and between- the Employer named in the
attached resolution and the International City Management Association
Retirement Corporation (hereinafter the "Trustee" or "Retirement
Corporation"), a nonprofit corporation organized and existing under the
laws of the State of Delaware, for the purpose of investing and otherwise
administering the funds: set: aside by, Employers` in connection- with --
deferred compensation plans established: under section 457 of the-
Internal
heInternal Revenue Code of 1954 (thW'CodW J. This Agreement shall take
effect upon acceptance: by the Trustee of its: appointment by the
Employer to serve as Trustee in accordance herewith asset forth in the
attached` resolution.
WHEREAS, the. Employer has established a deferred compensation plan
under section 457 of the: Code (the "Plan");
WHEREAS, in order that there will . be sufficient funds available to
discharge the Employee's contractual obligations under the Plan, the
Employer desires to set aside periodically amounts equal to the amount
of compensation deferred; '
WHEREAS, the funds set aside, together with any and all assets derived
from the investment thereof, are to be exclusively within the dominion,
control, and ownership of the Employer, and subject to the Employer's
absolute right of withdrawal, no employees having any interest
waver therein;
THEREFORE, this Agreement witnesseth that (a) the Employer
ay monies to the Trustee to be placed in deferred compensation
a nts for the Employer, (b) the Trustee covenants that it will hold
said sums, and any other funds which it may receive hereunder, in trust
for the uses and purposes- and upon the terms and conditions
hereinafter stated; and (c) the parties hereto agree as follows:
ARTICLE 1. General Duties at the Parties..
Section 1.1. General Duty of the Employer. The Employer shall make.
regular periodic payments equal to the amounts of its employees'
compensation which are deferred in accordance with the terms and
conditions of the Plan to the extent that such amounts areto be invested
under the Trust.
Section.1_2. General. Duties of the Trustee. The Trustee shall hold all
funds received by it hereunder, which, together with the income
therefrom, shall constitute the Trust Funds. It shall administer the Trust
Funds, collect the income thereof, and make payments therefrom, all as
hereinafter provided. The Trustee shall also hold all Trust Funds which
are transferred to it as successor Trustee by the Employer from existing
deferred compensation arrangements with its Employees under plans
described in section 457 of the Code. Such Trust Funds shall be subject
to all of the terms and provisions of this Agreement.
ARTICLE II. Powers and Duties of the Trustee in Investment.
Administration, and Disbursement of the Trust Funds.
Section 2.1. Investment Powers and Duties of the Trustee. The
Trustee, shall have the power to invest and reinvest the principal and
i eof the Trust Funds and keep the Trust Funds invested, without
d ction between principal and income, in securities or in other
rty, real or personal, wherever situated, including, but not limited
t Locks, common or preferred, bonds, retirement annuity and
insurance policies, mortgages, and other evidences of indebtedness or
ownership, investment companies, common or group trust funds, or
separate and different types of funds (including equity, fixed income)
which fulfill, requirements of state,'and local governmental laws,
APPENDIX C
provided, however, that the Employer may direct investment by the
Trustee among available investment alternatives in such proportions as
the Employer authorizes in connection with its deferred compensation
agreements' with its employees. For these purposes, theseTrust Funds
may be, commingled with, Trust. Funds set aside by other. Employers
pursuant to the -terms of the ICMA Retirement Trust. Investment powers' .
vested in the Trustee by the Section may be delegated by the Trustee to
any bank, insurance or trust company, or any investment advisor,
manager or agentselected by it:
Section 2.2. Administrative Powers of the Trustee. The Trustee shall
have the power in its discretion:
(a) To purchase; or subscribe for; any securities. or other
property and to retain the same in trust.
(b). To sell, exchange; convey, transfer or otherwise. dispose of
any securities or other property held by it, by private contract, or
at public auction. No person dealing with the Trustee shad be
bound to see the.applicationof the purchase money or to inquire
into the validity, expediency, or propriety of any such sale or
other disposition.
(c) To vote upon any stocks, bonds, or other securities; to give
general or special, proxies or powers of attorney' with or without
power of substitution;; to. exercise -any conversion privileges, .
subscription rights, or other options, and to make any payments
incidental thereto; to oppose, or to consent to, or otherwise
participate in, corporate reorganizations or other changes
affecting corporate securities, and to delegate discretionary
powers, and to pay any assessments or charges in connection
therewith; and generally to exercise any of the powers of an.
owner with respect to stocks, bonds, securities or other property
held as part of the Trust Funds.
(d) To cause any securities or other property held as part of the
Trust Funds to be registered in its own name, and to hold any
investments in bearer form, but the books and records of the
Trustee shall at all times show that ail such investments area part
of the Trust Funds.
(e) To borrow or raise moneyfor the purpose of the Trust in such
amount, and upon such terms and conditions, as the Trustee shall
deem advisable; and, for any, sum so borrowed, to issue- its
promissory noteasTrustee; and to secure the repayment thereof
by pledging all, or any part, of the Trust Funds. No person lending
money to the Trustee shall be bound to see the application of the
money lent or to inquire into its validity, expediency or propriety
ofany such borrowing.
(f) To keep such portion of the Trust Funds in cash or cash
balances as the Trustee, from time to time, may deem to be in the
best interest of the Trust created hereby, without liability for
interest thereon.
(g) To acceptand retain for such time as it may deem advisable
any securities or other property received or acquired by it as
Trustee hereunder, whether or not such securities or other
property would normally be purchased as investment hereunder.
(h) To make,, execute; acknowledge, and deliver any and all
documents of transfer and conveyance and any and. all other
instruments that may be necessary or appropriate to carry out.the
powers herein granted.
1
F - Y5 - i S
�L
(t) To settle,, compromise; or submit to arbitration any claims,
debts, or damages due or owing to or from the Trust Funds; to
commence or defend suits or legal or administrative proceedings;
and to represent the Trust' Funds in all suits and legal and.
administrative proceedings.
(j) To do all such acts, take all such proceedings, and exercise all
such rights and privileges, although not specifically mentioned:
herein; as the Trustee may deem necessary to administer the
Trust Funds andto carry out the purposes of this Trust.
Sectiom.2.3. Distribution& from the Trust Funds. The Employer
hereby appoints -the: Trustee as -its agent for the purpose of making
distributions: from- the Trust Funds In this regard the termsand
conditions set forth in the -Plan are to:guide and control the Trustee's
power..
Section 2.4.. Valuation of Trust Funds.,At least once a year as of
Valuation Dates designated bythe-Trustee; the Trustee shall determine
the value of the Trust Funds: Assets of.the-Trust Funds shall be valued at
their market values at the close of:business on the -Valuation: Date,. or, in
the absence of readily-ascertainablwmarket;values as the Trustee shall
determine, in accordance -,with methods consistentlyfollowed and
uniformly applied.
ARTICLE 111. For Protection of Trustee.
Section 3.1. Evidence of Action by Employer. The Trustee may rely
upon any certificate, notice or direction purporting to have been signed
on behalf of the• Employer which the Trustee believesto have been
signed by a duly designated official of the Employer. No communication
shall be binding upon any of the.TrustFunds or Trustee -until they are
received by the Trustee.
Section 3.2. Advice of Counsel. The Trustee may consult with any
legal counsel with respect to the construction of this Agreement, its
duties hereunder, or any.act, which it proposes to take or omit, and shall
not be liable for any action taken or omitted in good faith pursuant to
[nable
dvice. -
ion 3.3. Miscellaneous. The Trustee shall use ordinary care and
r diligence; but shall not be liableforany mistake of judgment
r action taken in good faith. The Trustee shall not be liable for any.
loss sustained by the Trust Funds by reasons of any investment made in
good faith and in. accordance with the provisions of this Agreement.
The Trustee's duties and obligations shall be limited to those
expressly imposed upon it by this Agreement.
ARTICLE IV. Taxes, Expenses and Compensation of Trustee,
Section 4.1. Taxes. The Trustee shall deduct from and charge against
the Trust Funds any taxes on the Trust Funds or the income thereof or
which the Trustee is required to pay with respect to the interest of any
person therein.
Section 412.. Expenses.. The Trustee shall deduct from and charge
against the Trust Funds all reasonable expenses incurred by the Trustee
in the administration -of the Trust Funds, including. counsel, agency,
investment advisory, and other necessary fees.
ARTICLE V. Settlement of Accounts. The Trustee shat I keep accurate
and detailed accounts of all investments, receipts, disbursements, and
other transactions hereunder.
Within ninety (90) days after the close of each fiscal year, the Trustee
shall render in duplicate to the Employer an account of its acts and
transactions as Trustee hereunder. If any part of the Trust.Fund shall be
invested through the medium of any common, collectiveor commingled
Trust Funds, the last annual report of such Trust Funds shall be
submitted with and incorporated in the account.
If within ninety (90) days after the mailing of the account or any
`ed. account the Employer has not filed with the Trustee notice of
jection to any act. or transaction -of the. Trustee; the account or
a
ed account shall become an account stated. If any objection has
lbee iled, and if the Employer is satisfied that it should be withdrawnor
if ther account.isadjusted to --the Employees.satisfaction; the Employer
shall in writing filed with the Trustee signify approval of the account and
it shall become an account stated.
When an account becomes an account stated, such account shall be
finally settled; and the Trustee shall be completely discharged and
released, as if such account had been settled and allowed by a judgment
or decree of a court of competent jurisdiction in an action or proceeding
in which ther Trustee and the Employer were parties..
The Trustee shall have the right to apply at any time to a court of
competent jurisdiction for the judicial settlement of its account..
ARTICLE VI. Resignation and Removal. of Trustee.
Section 6.1. Resignation of Trustee. The Trustee may resign at. any
time by filing with the. Employer its written resignation. Such resignation
shall take effect sixty (60) days from the date -of such filing and upon
appointment of a successor pursuant to Section 6.3., whichever shall
first occur.
Section 6.2. Removal of Trustee:. The Employer may remove the
Trustee at.any time by delivering to the Trustee•a written notice of its•
removal and an'appointmentot w successor pursuant -to Section 63:.
Such, removal: shall not -take effect prior to sixty: (60) days; from such;
delivery unless the, Trustee•agrees,to-anearlier effective date.,
Section 6.3. Appointment of Successor Trustee. The appointrnentof'
a' successor to the Trustee shall take effect upon the delivery to the
Trustee of (a) an instrument in writing executed. by the Employer
appointing such successor, and exonerating such successor from
liability for the acts andomissions of its predecessor, and (b) an.
acceptance in writing; executed by such successor.
All of the provisions set forth herein with respect to the Trustee shall:
relate to each successor with the same force and effect as. if such
successor had been originally named as Trustee hereunder.
If a successor is not appointed with sixty (60) days after the Trustee:
gives notice of its resignation pursuant to Section 6.1., the Trustee may
apply to any court of competent jurisdiction. for appointment off a
successor.
Section 6.4. Transfer of Funds to Successor. Upon the resignation or
removal of the Trustee and appointment of a successor, and after the
final account of the Trustee has been property settled, the Trustee shall
transfer and deliver any of the Trust Funds involved to such successor.,
ARTICLE VII. Duration and Revocation of Trust Agreement:
Section 7.1. Duration and Revocation. This Trust shall continue for
such time as may be necessary to accomplish the purpose for which it
was created but may be terminated or revoked at any time by the
Employer as it relates to any and/or all related participating Employees.
Written notice of such termination or revocation shall be given to the
Trustee by the Employer. Upon termination or revocation of the Trust,
all of the assets thereof shall return to and revert to the Employer.
Termination of this Trust shall not, however, relieve the Employer of the
Employers continuing obligation to pay deferred compensation to
Employees in accordance with the terms of the Plan.
Section 7.2. Amendment. The Employer shall have the right to amend
this Agreement in whole and in part but only with the Trustee's written
consent. Any such amendment shall become effective upon (a) delivery
to the Trustee of a written instrument of amendment, and (b) the
endorsement by the Trustee on such instrument of its consent thereto.
ARTICLE Vlll. Miscellaneous.
Section 8.1. Laws of the District of Columbia to Govern. This
Agreement and the Trust hereby created shall be construed and
regulated by the laws of the District of Columbia.
Section 8.2. Successor Employers. The "Employer' shall include any
person who succeeds the Employer and who thereby becomes subject
to the obligations of the Employer under the Plan.
Section 8.3. Withdrawals. The Employer may, at any time, and from
time to time, withdraw a portion or all of Trust Funds created by- this.
Agreement.
Section 8.4.. Gender and. Number. The masculine includes, the
feminine and the singular includes the plural unless the context requires;
another meaning.
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