Loading...
96-019 RESOLUTION NO. 96-19 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AVENTURA, FLORIDA, ESTABLISHING MONEY PURCHASE RETIREMENT PLANS BY ADOPTING THE ICMA RETIREMENT CORPORATION PROTOTYPE MONEY PURCHASE RETIREMENT PLAN AND TRUST PURSUANT TO THE SPECIFIC PROVISIONS OF THE ADOPTION AGREEMENT, A COPY OF WHICH IS ATTACHED HERETO AND MADE A PART HEREOF AS EXHIBITS 'A-l, A-2, and A- 3'; AUTHORIZING THE CITY MANAGER TO EXECUTE SAID PLAN AND TRUST, LOAN GUIDELINES, AND ADMINISTRATIVE SERVICES AGREEMENT ATTACHED HERE TO AS EXHIBITS 'B, C-1, C-2, C-3, D-l, D-2 and AUTHORIZING THE CITY MANAGER TO TAKE ALL ACTIONS NECESSARY TO IMPLEMENT THE PLANS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Aventura has employees rendering valuable services; and WHEREAS, the establishment of money purchase retirement plans be administered by the ICMA Retirement Corporation and that funds held under such plans be invested in the ICMA Retirement Trust, a trust established by public employers for the collective investment of funds held under their money purchase retirement plans and deferred compensation plans; and WHEREAS, the City now finds it desirable to establish money purchase plans for the City Manager, Department Directors and Assistant Department Directors and other City employees, NOW. THEREFORE. BE IT RESOLVED BY THE MAYOR AND THE MEMBERS OF THE COUNCIL OF THE CITY OF AVENTURA, FLORIDA, AS FOLLOWS: Section 1: That the City hereby establishes money purchase retirement plans and trusts titled City of Aventura City Manager Retirement Plan, City of Aventura Department Directors and Assistant Directors Retirement Plan, and City of Aventura Employees Retirement Plan in the form of the ICMA Retirement Corporation prototype money purchase retirement plan and trust, pursuant to the sPecific provisions of the adoption agreements, a copy of which is attached hereto and made a Pert hereof as Exhibits 'A-I, A-2 and A-3. Section 2: That the plan and trusts adopted by the City herein, shall be maintained for the exclusive benefit of eligible employees and their beneficiaries. Section 3: That the City hereby acknowledges and adopt the ICMA Corporation Money Purchase Plan & Trust, attached hereto and made a part hereof as Exhibit 'B". Section 4: That the City Manager is hereby authorized to execute the Loan Guidelines, a copy of which is attached hereto as Exhibits 'C-1, C-2 and C-3 and the Administrative Services Agreements attached hereto as Exhibits "D-l, D-2 and D-3".. Section 5: That the City hereby agrees to serve as trustee under the money purchase retirement plan and to invest all funds held under such plan in the ICMA Retirement Trust. Section 6: That the Director of Finance Support Services shall be the coordinator for this program and shall receive necessary reports, notices, etc., from the ICMA Retirement Corporation or the ICMA Retirement Trust; and shall cast, on behalf of the City, as directed by the City Council or the City Manager, as the case may be, .any required votes under the program. Administrative duties to carry out the program may be assigned to the appropriate departments by the City Manager. Section 7: That the City Manager is hereby authorized to execute all necessary documents on behalf of the City. Section 8: That the City Manager is authorized to take all action necessary to implement the Plans and this Resolution. Section 9: That this Resolution shall become effective immediately upon its adoption. Adopted this 11} day of June .1996, on a motion by Vice-Mayor Roqers-Libert . and seconded by Councilmernber Cohen -t ar r Snyde , Attest: Teresa M. Smith, C~dC ^ctin§ City Clerk Councilmember Cohen Councilmember Berger yes Councilmember Besldn yes Vice Mayor Rogers-Libert yes Mayor Snyder yes Councilmember Perlow yes Councilmember Holzberg yes Retir. Pl. res HMK/ah 6/13/96 3 ICMA RETIREMENT CORPORATION PROTOTYPE MONEY PURCHASE PLAN & TRUST ADOPTION AGREEMENT #001 Account Number The Employer hereby establishes a Money Purchase Plan and Trust to be known as Aventura City Manager Retirement ~t~anPlan'') in the form of the ICNLA ~etireme~t Corporation Prototype Money Purchase Plan and Trust. This Plan is an amendment and restatement of an existing defined contribution money purchase plan. Q Yes :~[ No If yes, please specify the name of the defined contribution money purchase plan which this Plan hereby amends and restates: I. Employer: CITY OF AVENTURA, FLORIDA II. Prototype Sponsor: Name: ICMA Retirement Corporation Address: 777 N. Capitol Street, N.E. i Washington, D.C. 20002-4240 Telephone Number: (202) 962-4600 III. The Effective Date of the Plan shall be the first day of the Plan Year during which the Employer adopts the Plan, unless an alternate Effective Date is hereby specified: IV. Plan Year will mean: The twelve (12) consecutive month period which coincides with the limita- tion year. (See Section 6.05(i) of the Plan.) The twelve (12) consecutive month period commencing on lO/Ol . and each anniversary thereof. MPP Adoption Agreement 12/23/94 001-94 V. Normal Retirement Age shall be age5 9d-1 / l~not to exceed age 65). VI. ELIGIBILITY REQUIREMENTS: 1. . The following group or groups of Employees are eligible to participate in the Plan: All Employees All FulbTime Employees Salaried Employees Non-union Employees Management Employees Public Safety Employees General Employees X Other (specify below) The group specified must correspond to a group of the same designation that is defined in the statutes, ordinances, roles, regulations, personal manuals or other material in effect in the state or locality of the Employer. 2. The Employer hereby waives or reduces the requirement of a twelve (12) month Period of Service for participation. The required Period of Service shall be N/A (write N/A if an Employee is eligible to participate upon employment). If this waiver or reduction is elected, it shall apply to all Employees within the Covered Employment Classification. 3. A minimum age requirement is hereby specified for eligibility to participate. The minimum age requirement is N/A (not to exceed age 21. Write N/A if no minimum age is declared.) VII. CONTRIBUTION PROVISIONS 1. The Employer shall contribute as follows (choose one, if applicable): Fixed Employer Contributions With Or Without Mandatory Participant Contributions. The Employer shall contribute on behalf of each Participant ~ % of Earnings or $ 0.0 for the Plan Year (subject to the limitations of Article VI. of the Plan). Each Participant is required to contribute 0. O0 % of Earnings or $0_ O0for the Plan Year as a condition of participation in the Plan. (Write "0" ffno contribution is required.) If Participant Contributions are required under this option, a Participant shall not have the right to discontinue or vary the rate of such contributions after becoming a Plan Participant. MPP Adoption Agreement 12/23/94 001-94 The Employer hereby elects to "pick up" the Mandatory/Required Participant Contribution. I~l Yes ~l No [Note to Employer: Neither an opinion letter issued by the Internal Revenue Service with respect to the Prototype Plan, nor a determination letter issued to an adopting Employer is a ruling by the Internal Revenue Service that Participant contributions that are picked up by the Employer are not includable in the Participant's gross income for federal income tax pur- poses. The Employer may seek such a ruling. Picked up contributions are excludable from the Participant's gross income under section 414(h)(2) of the Internal Revenue Code of 1986 only if they meet the requirements of Rev. Rul. 81-35, 1981-1 C.B. 255. Those requirements are (1) that the Employer must specify that the contributions, although designated as employee contributions, are being paid by the Em- ployer in lieu of contributions by the employee; and (2) the employee must not have the option of receiving the contributed amounts directly instead of having them paid by the Employer to the plan.] Fixed Employer Match of Participant Contributions. The Employer shall contribute on behalf of each Participant % of Earn- ings for the Plan Year (subject to the limitations of Articles V and VI of the Plan) for each Plan Year that such Participant has contributed % of Earnings or $ . Under this option, there is a single, fixed rate of Em- ployer contributions, but a Participant may decline to make the required Participant contributions in any Plan Year, in which case no Employer contri- bution will be made on the Participant's behalf in that Plan Year. Variable Employer Match Of Participant Contributions. The Employer shall contribute on behalf of each Participant an amount de- termined as follows (subject to the limitations of Articles V and VI of the Plan): % of the Participant contributions made by the Participant for the Plan Year (not including Particip~/nt contributions exceeding % of Earnings or $ ); PLUS __% of the contributions made by the Participant for the Plan Year in excess of those included in the above paragraph (but not includ- ing Participant contributions exceeding in the aggregate % of Earnings or $ ). Employer Contributions on behalf of a Participant for a Plan Year shall not exceed $ or __% of Earnings, whichever is ~ more or ~ less. MPP Adoption Agreement 12/23/94 001-94 2. Each Participant may make voluntary (unmatched), after-tax contribution, subject to the limitations of Section 4.05 and Articles V and VI of the Plan. gl Y¢~ ~ No 3. Employer contributions and Participant contributions shall be contributed to the Trust in accordance with the following payment schedule: Bi-weekly VIII. EARNINGS Earnings, as defined under Section 2.09 of the Plan, shall include: (a) Overtime [21 Yes [~1 No (b) Bonuses [21 Yes I~1 No IX. LIMITATION ON ALLOCATIONS If the Employer (i) maintains or ever maintained another qualified plan in which any Par- ticipant in this Plan is (or was) a participant or could possibly become a participant, and/or (ii) maintains a welfare benefit fund (as defined in section 419(e) of the Code) or an indi- vidual medical account (as defined in section 415(1)(2) of the Code, under which amounts are treated as Annual Additions with respect to any Participant in this Plan) the Employer hereby agrees to limit contributions to all such plans as provided herein, if necessary in order to avoid excess contributions (as described in Sections 6.03 and 6.04 of the Plan). 1. If the Participant is covered under another qualified defined contribution plan maintained by the Employer, other than a Regional Prototype Plan, the provisions of Section 6.02(a) through (lc) of the Plan will apply as if the other plan were a Master Prototype Plan, unless another method has been indicated below. Other Method. (Provide the method under which the plans will limit total Annual Additions to the Maximum Permissible Amount, and will properly reduce any excess amounts, in a manner that precludes Employer discretion.) MPP Adoption Agreement 12/23/94 001-94 2. If the Participant is or has ever been a participant in a defined benefit plan main- rained by the Employer, and if the limitation in Section 6.04 of the Plan would be exceeded, then the Participant's Projected Annual Benefit under the defined benefit plan shall be reduced in accordance with the terms thereof to the extent necessary to satisfy such limitation. If such plan does not provide for such reduction, or if the limitation is still exceeded after the reduction, annual additions shall be reduced to the extent necessary in the manner described in Sections 6.01 through 6.03. The methods of avoiding the limitation described in this paragraph will not apply if the Employer indicates another method below. Other Method. (Note to Employer: Provide below language which will satisfy the 1.0 limitation of section 415(e) of the Code. Such language must preclude Employer discretion. See section 1.415-1 of the Regulations for guidance.) 3. The limitation year is the following 12-consecutive month period: X. VESTING PROVISIONS The Employer hereby specifies the following vesting schedule, subject to (1) the minimum vesting requirements as noted and (2) the concurrence of the Plan Administrator. Years of Specified Minimum Service Percent Vesting Completed Vesting Requirements** ~ Zero _2.0_12~% No minimum One 100 % No minimum Two 1.00 % No minimum Three ;I. 00 % Not less than 20% Four 100 % Not less than40% Five _J._0_0.__% Not less than 60% Six 100 % Not less than 80% Seven, or more 100 % Must equal 100% (**These minimum vesting requirements conform to the Code's three to seven year vesting schedule. If the employee becomes 100% vested by the completion of five years of service, there is no minimum for years three and four.) XI. Loans are permitted under the Plan, as provided in Article XIV: UI Yes Cll No MPP Adoption Agreement 12/23/94 001-94 XII. The Employer hereby attests that it is a unit of state or local government or an agency or instrumentality of one or more units of state or local government. XIII. The Prototype Sponsor hereby agrees to inform the Employer of any amendments to the Plan made pursuant to Section 15.05 of the Plan or of the discontinuance or abandonment of the Plan. XIV. The Employer hereby appoints the Prototype Sponsor as the Plan Administrator pursuant to the terms and conditions of the ICMA RETIREMENT CORPORATION PROTOTYPE MONEY PURCHASE PLAN & TRUST. The Employer hereby agrees to the provisions of the Plan and Trust. XV. The Employer hereby acknowledges it understands that failure to properly fill out this Adoption Agreement may result in disqualification of the Plan. XVI. An adopting Employer may not rely on a notification letter issued by the National or District Office of the Internal Revenue Service as evidence that the Plan is qualified under section 401 of the Internal Revenue Code. In order to obtain reliance with respect to plan qualification, the Employer must apply to the appropriate key district office for a determination letter. This Adoption Agreement may be used only in conjunction with basic Plan document number 001. In Witness Whereof, the Employer hereby causes this Agreement to be executed on this day of ,19 .. EMPLOYER Accepted: ICMA RETIREMENT CORPORATION By: By: Eric M. Soroka Title: City Manager Title: Corporate Secretary Attest: Attest: MPP Adoption Agreement 12/23/94 001 ICMA RETIREMENT CORPORATION PROTOTYPE MONEY PURCHASE PLAN & TRUST ADOPTION AGREEMENT #001 Account Number The Employer hereby establishes a Money Putrz~e.~lfitt,,~lad ~T~..M:,tO be known as City of Aventuz Dept. Dzrector .& Asszst Dept Dzr ~g Plan ) in the form of the ICMA Retirement Corporation Prototype Money Purchase Plan and Trust. This Plan is an amendment and restatement of an existing defined contribution money purchase plan. I~l Yes ~l No If yes, please specify the name of the defined contribution money purchase plan which this Plan hereby amends and restates: I. Employer: CITY OF AVENTURA, FLORIDA II. Prototype Sponsor: Name: ICMA Retirement Corporation Address: 777 N. Capitol Street, N.E. Washington, D.C. 20002-4240 Telephone Number: (202) 962-4600 IlL The Effective Date of the Plan shall be the first day of the Plan Year during which the Employer adopts the Plan, unless an alternate Effective Date is hereby specified: IV. Plan Year will mean: The twelve (12) consecutive month period which coincides with the limita- tion year. (See Section 6.05(i) of the Plan.) The twelve (12) consecutive month period commencing on 10/01 and each anniversary thereof. MPP Adoption Agreement 12/23/94 001-94 V. Normal Retirement Age shall be ag& 9+1 / 2(not to exceed age 65). VI. ELIGIBILITY REQUIREMENTS: 1. The following group or groups of Employees are eligible to participate in the Plan: All Employees All Full-~me Employees Salaried Employees Non-union Employees Management Employees Public Safety Employees General Employees x Other (specify below). Department Directors and Asszstant Department Directors The group specified must correspond to a group of the same designation that is defined in the statutes, ordinances, roles, regulations, personal manuals or other material in effect in the state or locality of the Employer. 2. The Employer hereby waives or reduces the requirement of a twelve (12) month Period of Service for participation. The required Period of Service shall be N/A (write N/A if an Employee is eligible to participate upon employment). If this waiver or reduction is elected, it shall apply to all Employees within the Covered Employment Classification. 3. A minimum age requirement is hereby specified for eligibility to participate. The minimum age requirement is I~/A (not to exceed age 21. Write N/A if no minimum age is declared.) VII. CONTRIBUTION PROVISIONS 1. The Employer shall contribute as follows (choose one, if applicable): Fixed Employer Contributions With Or Without Mandatory Participant Contributions. The Employer shall contribute on behalf of each Participant 1 ?. 0 % of Earnings or $ c~ flffor the Plan Year (subject to the limitations of Article VI of the Plan). Erich Participant is required to contribute 0,0 % of Earnings or $ o O~r the Plan Year as a condition of participation in the Plan. (Write "0" ff no contribution is required.) If Participant Contributions are required under this option, a Participant shall not have the right to discontinue or vary the rate of such contributions after becoming a Plan Participant. MPP Adoption Agreement 12/23/94 001-94 The Employer hereby elects to "pick up" the Mandatory/Required Participant Contribution. Q Yes :~ No [Note to Employer: Neither an opinion letter issued by the Internal Revenue Service with respect to the Prototype Plan, nor a determination letter issued to an adopting Employer is a ruling by the Internal Revenue Service that Participant contributions that are picked up by the Employer are not includable in the Participant's gross income for federal income tax pur- poses. The Employer may seek such a ruling. Picked up contributions are excludable from the Participant's gross income under section 414(h)(2) of the Internal Revenue Code of 1986 only if they meet the requirements of Rev. Rul. 81-35, 1981-1 C.B. 255. Those requirements are (1) that the Employer must specify that the contributions, although designated as employee contributions, are being paid by the Em- ployer in lieu of contributions by the employee; and (2) the employee must not have the option of receiving the contributed amounts directly instead of having them paid by the Employer to the plan.] Fixed Employer Match of Participant Contributions. The Employer shall contribute on behalf of each Participant % of Earn- ings for the Plan Year (subject to the limitations of Articles V and VI of the Plan) for each Plan Year that such Participant has contributed % of Earnings or $ . Under this option, there is a single, fixed rate of Em- ployer contributions, but a Participant may decline to make the required Participant contributions in any Plan Year, in which case no Employer contri- bution will be made on the Participant's behalf in that Plan Year. Variable Employer Match Of Participant Contributions. The Employer shall contribute on behalf of each Participant an amount de- termined as follows (subject to the limitations of Articles V and VI of the Plan): ~% of the Participant contributions made by the Participant for the Plan Year (not including Participant contributions exceeding % of Earnings or $ ); ' ' PLUS % of the contributions made by the Participant for the Plan Year in excess of those included in the above paragraph (but not includ- ing Participant contributions exceeding in the aggregate % of Earnings ors ). Employer Contributions on behalf of a Participant for a Plan Year shall not exceed $ or __ % of Earnings, whichever is ~ more or gl less. MPP Adoption Agreement 12/23/94 001-94 2. Each Participant may make voluntary (unmatched), after-tax contribution, subject to the limitations of Section 4.05 and Articles V and VI of the Plan. I~l Yes I~x No 3. : Employer contributions and Participant contributions shall be contributed to the Trust in accordance with the following payment schedule: Bi-w~ekly VIII. EARNINGS Earnings, as defined under Section 2.09 of the Plan, shall include: (a) Overtime ~ Yes ~l No (b) Bonuses 0 Yes ~ No IX. LIMITATION ON ALLOCATIONS If the Employer (i) maintains or ever maintained another qualified plan in which any Par- ticipant in this Plan is (or was) a participant or could possibly become a participant, and/or (ii) maintains a welfare benefit fund (as defined in section 419(e) of the Code) or an indi- vidual medical account (as defined in section 415(1)(2) of the Code, under which amounts are treated as Annual Additions with respect to any Participant in this Plan) the Employer hereby agrees to limit contributions to all such plans as provided herein, if necessary in order to avoid excess contributions (as described in Sections 6.03 an'd 6.04 of the Plan). 1. If the Participant is covered under another qualified defined contribution plan maintained by the Employer, other than a Regional Prototype Plan, the provisions of Section 6.02(a) through (f) of the Plan will apply as if the other plan were a Master Prototype Plan, unless another method has been indicated below. Other Method. (Provide the method under which the plans will limit total Annual Additions to the Maximum Permissible Amount, and will properly reduce any excess amounts, in a manner that precludes Employer discretion.) MPP Adoption Agreement 12/23/94 001-94 2. If the Participant is or has ever been a participant in a defined benefit plan main. tained by the Employer, and if the limitation in Section 6.04 of the Plan would be exceeded, then the Participant's Projected Annual Benefit under the defined benefit plan shall be reduced in accordance with the terms thereof to the extent necessary to satisfy such limitation. If such plan does not provide for such reduction, or if the limitation is still exceeded after the reduction, annual additions shall be reduced to the extent necessary in the manner described in Sections 6.01 through 6.03. The methods of avoiding the limitation described in this paragraph will not apply if the Employer indicates another method below. Other Method. (Note to Employer: Provide below language which will satisfy the 1.0 limitation of section 415(e) of the Code. Such language must preclude Employer discretion. See section 1.415-1 of the Regulations for guidance.) 3. The limitation year is the following 12-consecutive month period: X. VESTING PROVISIONS The Employer hereby specifies the following vesting schedule, subject to (1) the minimum vesting requirements as noted and (2) the concurrence of the Plan Administrator. Years of Specified Minimum Service Percent Vesting Completed Vesting Requirements** Zero 100 % No minimum One 100 % No minimum Two 1 C}O % No minimum Three 100 % Not less than 20% Four 100 % Not less than 40% Five 1.00 % Not less than 60% Six 10fl % Not less than 80% Seven, or more 100 % Must equal 100% (**These minimum vesting requirements conform to the Code's three to seven year vesting schedule. If the employee becomes 100% vested by the completion of five years of service, there is no minimum for years three and four.) XI. Loans are permitted under the Plan, as provided in Article XIV: ~ Yes [21 No MPP Adoption Agreement 12/23/94 001-94 XII. The Employer hereby attests that it is a unit of state or local government or an agency or instrumentality of one or more units of state or local government. XIII. The Prototype Sponsor hereby agrees to inform the Employer of any amendments to the Plan made pursuant to Section 15.05 of the Plan or of the discontinuance or abandonment of the;Plan. XIV. The Employer hereby appoints the Prototype Sponsor as the Plan Administrator pursuaht to the terms and conditions of the ICMA RETIREMENT CORPORATION PROTOTYPE' MONEY PURCHASE PLAN & TRUST. The Employer hereby agrees to the provisions of the Plan and Trust. XV. The Employer hereby acknowledges it understands that failure to properly fill out this Adoption Agreement may result in disqualification of the Plan. XVI. An adopting Employer may not rely on a. notification letter issued by the National or District Office of the Internal Revenue Service as evidence that the Plan is qualified under section 401 of the Internal Revenue Code. In order to obtain reliance with respect to plan qualification, the Employer must apply to the appropriate key district office for a determination letter. This Adoption Agreement may be used only in conjunction with basic Plan document number 001. In Witness Whereof, the Employer hereby causes this Agreement to be executed on this day of ,19 . EMPLOYER Accepted: ICMA RETIREMENT CORPORATION By: v:ric r~. ~oroka By: Title: City Manager Title: Corporate Secretary Attest: Attest: MPP Adoption Agreement 12/23/94 001-94 ICMA RETIREMENT CORPORATION PROTOTYPE MONEY PURCHASE PLAN & TRUST ADOPTION AGREEMENT #001 Account Number The Employer hereby establishes a Money Purchase Plan and Trust to be known as ¢±t¥ of Aventm R'mpl oyees Retirement Plan (the "Plan") in the form of the ICMA Retirement Corporation Protowpe Money Purchase Plan and Trust. This Plan is an amendment and restatement of an existing defined contribution money purchase plan. 0 Yes ~l No If yes, please specify the name of the defined contribution money purchase plan which this Plan hereby amends and restates: I. Employer: City of Aventura II. Prototype Sponsor: Name: ICMA Retirement Corporation Address: 777 N. Capitol Street, N.E. Washington, D.C. 20002-4240 Telephone Number: (202) 962-4600 IlL The Effective Date of the Plan shall be the first day of the Plan Year during which the Employer adopts the Plan, unless an alternate Effective Date is hereby specified: IV. Plan Year will mean: The twelve (12) consecutive month period which coincides with the limita- tion year. (See Section 6.05(i) of the Plan.) The twelve (12) consecutive month period commencing on 10/01 and each anniversary thereof. MPP Adoption Agreement 12/23/94 001-94 V. Normal Retirement Age shall be age 591/2(not to exceed age 65). VI. ELIGIBILITY REQUIREMENTS: 1. ,The following group or groups of Employees are eligible to participate in the Plan: All Employees All Full-~me Employees Salaried Employees Non-union Employees Management Employees Public Safety Employees General Employees X Other (specify below) All employees other than City Manager, Department Directors and Assistant Department Directors. The group specified must correspond to a group of the same designation that is defined in the statutes, ordinances, re!es, regulations, personal manuals or other material in effect in the state or locality of the Employer. 2. The Employer hereby waives or reduces the requirement of a twelve (12) month Period of Service for participation. The required Period of Service shall be N/A (write N/A if an Employee is eligible to participate upon employment). If this waiver or reduction is elected, it shall apply to all Employees within the Covered Employment Classification. 3. A minimum age requirement is hereby specified for eligibility to participate. The minimum age requirement is lq/A (not to exceed age 21. Write N/A if no minimum age is declared.) VII. CONTRIBUTION PROVISIONS 1. The Employer shall contribute as follows (choose one, if applicable): Fixed Employer Contributions With Or Without Mandatory Participant Contributions. The Employer shall Contribute on behalf of each Participant 1.2.0% of Earnings or $ O. 0 ~for the Plan Year (subject to the limitations of Article VI of the Plan). Each Participant is required to contribute O. 0 % of Earnings or $0. OOfor the Plan Year as a condition of participation in the Plan. (Write "0" if no contribution is required.) If Participant Contributions are required under this option, a Participant shall not have the right to discontinue or vary the rate of such contributions after becoming a Plan Participant. MPP Adoption Agreement 12/23/94 001-94 The Employer hereby elects to "pick up" the Mandatory/Required Participant Contribution. CI Yes ~l No [Note to Employer: Neither an opinion letter issued by the Internal Revenue Service with respect to the Prototype Plan, nor a determination letter issued to an adopting Employer is a ruling by the Internal Revenue Service that Participant contributions that are picked up by the Employer are not includable in the Participant's gross income for federal income tax pur- poses. The Employer may seek such a ruling. Picked up contributions are excludable from the Participant's gross income under section 414(h)(2) of the Internal Revenue Code of 1986 only if they meet the requirements of Rev. Rul. 81-35, 1981-1 C.B. 255. Those requirements are (1) that the Employer must specify that the contributions, although designated as employee contributions, are being paid by the Em- ployer in lieu of contributions by the employee; and (2) the employee must not have the option of receiving the contributed amounts directly instead of having them paid by the Employer to the plan.] Fixed Employer Match of Participant Contributions. The Employer shall contribute on behalf of each Participant % of Earn- ings for the Plan Year (subject to the limitations of Articles V and VI of the Plan) for each Plan Year that such Participant has contributed % of Earnings or $ . Under this option, there is a single, fixed rate of Em- ployer contributions, but a Participant may decline to make the required Participant contributions in any Plan Year, in which case no Employer contri- bution will be made on the Participant's behalf in that Plan Year: Variable Employer Match Of Participant Contributions. The Employer shall contribute on behalf of each Participant an amount de- termined as follows (subject to the limitations of Articles V and VI of the Plan): __% of the Participant contributions made by the Participant for the Plan Year (not including Participant contributions exceeding % of Earnings or $. ); PLUS % of the contributions made by the Participant for the Plan Year in excess of those included in the above paragraph (but not includ- ing Participant contributions exceeding in the aggregate % of Earnings or $ 3. Employer Contributions on behalf of a Participant for a Plan Year shall not exceed $ or % of Earnings, whichever is CI more or ~1 less. MPP Adoption Agreement 12/23/94 001-94 2. Each Participant may make voluntary (unmatched), after-tax contribution, subject to the limitations of Section 4.05 and Articles V and VI of the Plan. Q Yes ~ No 3. ~ Employer contributions and Participant contributions shall be contributed to the Trust in accordance with the following payment schedule: Bi-weekly VIII. EARNINGS Earnings, as defined under Section 2.09 of the Plan, shall include: (a) Overtime ~ Yes I~l No (b) Bonuses UI Yes ~ No IX. LIMITATION ON ALLOCATIONS If the Employer (i) maintains or ever maintained another qualified plan in which any Par- ticipant in this Plan is (or was) a participant or could possibly become a participant, and/or (ii) maintains a welfare benefit fund (as defined in section 419(e) of the Code) or an indi- vidual medical account (as defined in section 415(1)(2) of the Code, under which amounts are treated as Annual Additions with respect to any Participant in this Plan) the Employer hereby agrees to limit contributions to all such plans as provided herein, if necessary in order to avoid excess contributions (as described in Sections 6.03 and 6.04 of the Plan). 1. If the Participant is covered under another qualified defined contribution plan maintained by the Employer, other than a Regional Prototype Plan, the provisions of Section 6.02(a) through (f) of the Plan will apply as if the other plan were a Master Prototype Plan, unless another method has been indicated below. Other Method. (Provide the method under which the plans will limit total Annual Additions to the Maximum Permissible Amount, and will properly reduce any excess amounts, in a manner that precludes Employer discretion.) MPP Adoption Agreement 12/23/94 001-94 2. If the Participant is or has ever been a participant in a defined benefit plan main- rained by the Employer, and if the limitation in Section 6.04 of the Plan would be exceeded, then the Participant's Projected Annual Benefit under the defined benefit plan shall be reduced in accordance with the terms thereof to the extent necessary to satisfy such limitation. If such plan does not provide for such reduction, or if the limitation is still exceeded after the reduction, annual additions shall be reduced to the extent necessary in the manner described in Sections 6.01 through 6.03. The methods of avoiding the limitation described in this paragraph will not apply if the Employer indicates another method below. Other Method. (Note to Employer: Provide below language which will satisfy the 1.0 limitation of section 415(e) of the Code. Such language must preclude Employer discretion. See section 1.415-1 of the Regulations for guidance.) 3. The limitation year is the following 12-consecutive month period: X. VESTING PROVISIONS The Employer hereby specifies the following vesting schedule, subject to (1) the minimum vesting requirements as noted and (2) the concurrence of the Plan Administrator. Years of Specified Minimum Service Percent Vesting Completed Vesting Requirements** Zero 0 % No minimum One 0 % No minimum Two 0 % No minimum "i-~ Three 20 % Not less than 20% ~ Four /50 % Not less than 40% ~' Five ~ % Not less than 60% Six 80 % Not less than 80% Seven, or more 100 % Must equal 100% (**These minimum vesting requirements conform to the Code's three to seven year vesting schedule. If the employee becomes 100% vested by the completion of five years of service, there is no minimum for years three and four.) XI. Loans are permitted under the Plan, as provided in Article XlV: ~ Yes ~l No MPP Adoption Agreement 12/23/94 ~1~ 001-94 XII. The Employer hereby attests that it is a unit of state or local government or an agency or instrumentality of one or more units of state or local government. XIII. The Prototype Sponsor hereby agrees to inform the Employer of any amendments to the Plan made pursuant to Section 15.05 of the Plan or of the discontinuance or abandonment of the Plan. XIV. The Employer hereby appoints the Prototype Sponsor as the Plan Administrator pursuant to the terms and conditions of the ICMA RETIREMENT CORPORATION PROTOTYPE MONEY PURCHASE PLAN & TRUST. The Employer hereby agrees to the provisions of the Plan and Trust. XV.The Employer hereby acknowledges it understands that failure to properly fill out this Adoption Agreement may result in disqualification of the Plan. XVI. An adopting Employer may not rely on a notification letter issued by the National or District Office of the Internal Revenue Service as evidence that the Plan is qualified under section 401 of the Internal Revenue Code. In order to obtain reliance with respect to plan qualification, the Employer must apply to the appropriate key district office for a determination letter. This Adoption Agreement may be used only in conjunction with basic Plan document number 001. In Witness Whereof, the Employer hereby causes this Agreement to be executed on this day of ,19 EMPLOYER Accepted: ICMA RETIREMENT CORPORATION By: By: Eric M. Soroka Title: City Manager Title: Corporate Secretary Attest: Attest: MPP Adoption Agreement12/23/94 001-94 ICMA RETIREMENT CORPORATION Suite 600 777 Xiortn Capitol Street NE June 26, 19.~6 Washinqton DC 20002 4240 2O2 962 4600 202 962 460~ FAX TOl Free 600 669 7400 Harry Kilgore Director of Finance Support Services City of Aventura 2999 NE 191 Street Aventura, FL 33180 RE: ICMA Retirement Corporation Account Number 109534 '~ U" '"'~ ' '~' ' Dear Mr. Kilgore The ICMA Retirement Corporation is pleased to accept the City of Aventura as a sponsor of the ICMA Retirement Corporation Prototype Money Purchase Plan and Trust. A copy of the executed adoption agreement is enclosed. Contributions on behalf of your eligible employees may be forwarded at this time. The City of Aventura Money Purchase Plan account number is referenced above and should be included on all correspondence. The ICMA Retirement Corporation Prototype Money Purchase Plan and Trust is classified by the IRS as a non-standard regional prototype plan and the ICMA Retirement Corporation is the prototype sponsor. AS such, we will notify you annually whether we continue to be the prototype sponsor, whether any amendments have been made to the regional prototype plan, and, if amendments have been made, the requirements you must satisfy in order to be entitled to maintain your plan as a regional prototype. We look forward to providing the City of Aventura with the most exceptional retirement program available in the industry. If you have any questions, or need supplies, please do not hesitate to contact the Employer Services staff at 800-326-7272. Sincerely, _ ~ Stephen Wm. Nordholt Corporate Secretary cc: Tommy Howard, Territory Director Alexa Phillips, Marketing Representative ICMA-RC Services, Inc. Member NASD and SIPC is a wholly owned broker-dealer subsidiaW of the ICMA Retirement Corporation ICMA RETIREMENT CORPORATION Suite 600 777 North Oapitol Street NE Washington DQ200C24240 202 962 4600 2029624601 FAX June 24, 1996 *olF~,,e 800.669.7a00 Harry Kilgore Director of Finance Support Services City of Aventura 2750 NE 187th Street Aventura, FL 33180 Dear Mr. Kilgore: We are pleased to administer a deferred compensation plan for the City of Aventura. Your account with the ICMA Retirement Corporation (RC) has been established and is ready to receive your deferred compensation contributions. In addition to the official Notice of Plan Acceptance and counter-executed copy of the Administrative Services Agreement, this package contains samples of materials which are used regularly in coordinating the plan. Please contact our office if you have questions concerning any aspect of your deferred compensation plan, or if you need additional forms. Our Employer Services Unit toll-free number is 1-800-326-7272. Sincerely, / Kecia Morton Plan Analyst Enclosure cc: Tommy Howard, Territory Director Alexa Phillips, Marketing Representative ICMA-RC Services, Inc. Member NASD and SIPC is a wholly owned broker-dealer subsidiary of the ICMA Retirement Corporation ICMA RETIREMENT CORPORATION S~i!e 6©0 T77 North Capitol Street, NE W~sh~ngton, DC 200024240 P02 962 4600 202 962-4601 FAX Notice of Plan Acceptance Harry Kilgore Director of Finance Support Services City of Aventura 2750 NE 187th Street Aventura, FL 33180 Effective Date: June 24, 1996 Account Number: 304326 We have received your resolution naming the ICM3~ Retirement Corporation (RC) as the deferred compensation administrator. Your participation is effective on the above date. As a meraber of the ICPL~ Retirement Trust, you are eligible to vote for Trustees. Elections are held annually in April. Ballots will be sent to your official plan coordinator. Please note your employer account number above. Each employee who enrolls in the plan will be identified by the employer account number and their social security number. If you have any questions, please call us toll-free at 1-800-32~7272~ For the ICNLA Retirement Corporation: ~ ~'~ Title: Corporate Secretary Date: June 24, 1996 ICMA-RC Services, Inc. Member NASD and SIPC. is a wholly owned broker-dealer subsidiary of the ICMA Relirement Corporation ICMA RETIREMENT CORPORATION June 26, 1996 w~,~,,~g,on DC 200024240 Harry Kilgore Director of Finance Support Services City of Aventura 2999 NE 191 Street Aventura, FL 33180 RE: ICMA Retirement Corporation Account Number 109536 Dear Mr. Kilgore The ICMA Retirement Corporation is pleased to accept the City of Aventura as a sponsor of the ICMA Retirement Corporation Prototype Money Purchase Plan and Trust. A copy of the executed adoption agreement is enclosed. Contributions on behalf of your eligible employees may be forwarded at this time. The City of Aventura Money Purchase Plan account number is referenced above and should be included on all correspondence. The ICMA Retirement Corporation Prototype Money Purchase Plan and Trust is classified by the IRS as a non-standard regional prototype plan and the ICMA Retirement Corporation is the prototype sponsor. As such, we will notify you annually whether we continue to be the prototype sponsor, whether any amendments have been made to the regional prototype plan, and, if amendments have been made, the requirements you must satisfy in order to be entitled to maintain your plan as a regional prototype. We look forward to providing the City of Aventura with the most exceptional retirement program available in the industry. If you have any questions, or need supplies, please do not hesitate to contact the Employer Services staff at 800-326--7272. Sincerely, Stephen Wm. Nordholt Corporate Secretary cc: Tommy Howard, Territory Director Alexa Phillips, Marketing Representative ICMA-RC Services, Inc. Member NASD and SIPC, is a wholly owned broker-dealer subsidiary of tile ICMA Retiremeqt Corporation ICMA RETIREMENT CORPORATION PROTOTYPE MONEY PURCHASE PLAN & TRUST ADOPTION AG REEMENT #001 Account Number c~5 The Employer hereby establishes a Money Purchase Plan and Trust to be known as Aventura City Manager Retirement ~t~eanPlan'') in the form of the ICMA RetT~rement Corporation Prototype Money Purchase Plan and Trust. This Plan is an amendment and restatement of an existing defined contribution money purchase plan. ~l Yes ~ No If yes, please specify the name of the defined contribution money purchase plan which this Plan hereby amends and restates: I. Employer: ~2ITY OF AVENTURA, FLORIDA II. Prototype Sponsor: Name: ICMA Retirement Corporation Address: 777 N. Capitol Street, N.E. Washington, D.C. 20002-4240 Telephone Number: (202) 962-4600 III. The Effective Date of the Plan shall be the first day of the Plan Year during which the Employer adopts the Plan, unless an alternate Effective Date is hereby specified: IV. Plan Year will mean: The twelve (12) consecutive month period which coincides with the limita- tion year. (See Section 6.05(i) of the Plan.) The twelve (12) consecutive month period commencing on ].0/0]- and each anniversary thereof. MPP Adoption Agreement 12/23/94 ~1~ 001-94 V. Normal Retirement Age shall be age5 9+]-/~not to exceed age 65). VI. ELIGIBILITY REQUIREMENTS: 1. The following group or groups of Employees are eligible to participate in the Plan: All Employees All Full-Time Employees Salaried Employees Non-union Employees Management Employees Public Safety Employees General Employees X Other (specify below) P.'~ Vy M~nag~r The group specified must correspond to a group of the same designation that is defined in the statutes, ordinances, rules, regulations, personal manuals or other material in effect in the state or locality of the Employer. 2. The Employer hereby waives or reduces the requirement of a twelve (12) month Period of Service for participation. The required Period of Service shall be N/A (write N/A if an Employee is eligible to participate upon employment). If this waiver or reduction is elected, it shall apply to all Employees within the Covered Employment Classification. 3. A mini~num age requirement is hereby specified for eligibility to participate. The minimum age requirement is N/A (not to exceed age 2][. Write N/A if no ~ninimum age is declared.) VII. CONTRIBUTION PROVISIONS 1. The Employer shall contribute as follows (choose one, if applicable): Fixed Employer Contributions With Or Without Mandatory Participant Contributions. The Employer shall contribute on behalf of each Participant ~LS~0 % of Earnings or $ 0.0 for the Plan Year (subject to the limitations of Article VI of the Plan). Each Participant is required to contribute0' 00 % of Earnings or $0_ OOfor the Plan Year as a condition of participation in the Plan. (Write "0" if no contribution is required.) If Participant Contributions are required under this option, a Participant shall not have the right to discontinue or vary the rate of such contributions after becoming a Plan Participant. MPP Adoption Agreement 12/23/94 001-94 The Employer hereby elects to "pick up" the' Mandatory/Required Participant Contribution. ~l Yes ~ No [Note to Employer: Neither an opinior letter issued by the Internal Revenue Service with respect to the Prototype Plan, nor a determination letter issued to an adopting Employer is a ruling by the Internal Revenue Service that Participant contributions that are picked up by the Employer are not includable in the Participant's gross income for federal income tax pur- poses. The Employer may seek such a ruling. Picked up contributions are excludable from the Participant's gross income under section 414(h)(2) of the Internal Revenue Code of 1986 only if they meet the requirements of Rev. Rul. 81-35, 1981-1 C.B. 255. Those requirements are ( 1 ) that the Employer must: specify that the contributions, although designated as employee contributions, are being paid by the Em- ployer in lieu of contributions by the employee; and (2) the employee must not have the option of receiving the contributed amounts directly instead of having them paid by the Employer to the plan.] Fixed Employer Match of Participant Contributions. The Employer shall contribute on behalf of each Participant % of Earn- ings for the Plan Year (subject to the limitations of Articles V and VI of the Plan) for each Plan Year that such Participant has contributed % of Earnings or $ . Under this option, there is a single, fixed rate of Em- ployer contributions, but a Participant may decline to make the required Participant contributions in any Plan Year, in which case no Employer contri- bution will be made on the Participant's behalf in that Plan Year. Variable Employer Match Of Participant Contributions. The Employer shall contribute on behalf of each Participant an amount de- termined as follows (subject to the limitations of Articles V and VI of the Plan): % of the Participant contributions made by the Participant for the Plan Year (not including Participant contributions exceeding % of Earnings or $ ); PLUS % of the contributions made by the Participant for the Plan Year in excess of those included in the above paragraph (but not includ- ing Participant contributions exceeding in the aggregate % of Earnings or $. .). Employer Contributions on behalf of a Participant for a Plan Year shall not exceed $. or % of Earnings, whichever is ~1 more or ~1 less. MPP Adoption Agreement 12/23/94 ~1~ 001-94 2. Each Participant may make voluntary (unmatched), after-tax contribution, subject to the limitations of Section 4.05 and Articles V and VI of the Plan. ~ Yes ~ No 3. Employer contributions and Participant contributions shall be contributed to the Trust in accordance with the following payment schedule: Bi-weekly VIII. EARNINGS Earnings, as defined under Section 2.09 of the Plan, shall include: (a) Overtime ~ Yes y_x] No (b) Bonuses ~l Yes ~ No IX. LIMITATION ON ALLOCATIONS If the Employer (i) maintains or ever maintained another qualified plan in which any Par- ticipant in this Plan is (or was) a participant or could possibly become a participant, and/or (ii) maintains a welfare benefit fund (as defined in section 419(e) of the Code) or an indi- vidual medical account (as defined in section 415(1)(2) of the Code, under which amounts are treated as Annual Additions with respect to any Participant in this Plan) the Employer hereby agrees to limit contributions to all such plans as provided herein, if necessary in order to avoid excess contributions (as described in Sections 6.03 and 6.04 of the Plan). 1. If the Participant is covered under another qualified defined contribution plan maintained by the Employer, other than a Regional Prototype Plan, the provisions of Section 6.02(a) through (f) of the Plan will apply as if the other plan were a Master Prototype Plan, unless another method has been indicated below. Other Method. (Provide the method under which the plans will limit total Annual Additions to the Maximum Permissible Amount, and will properly reduce any excess amounts, in a manner that precludes Employer discretion.) MPP Adoption Agreement 12/23/94 001 -94 2. if the Participant is or has ever been a participant in a defined benefit plan main- tained by the Employer, and if the limitation in Section 6.04 of the Plan would be exceeded, then the Participant's Projected Annual Benefit under the defined benefit plan shall be reduced in accordance with the terms thereof to the extent necessary to satisfy such limitation. If such plan does not provide for such reduction, or if the limitation is still exceeded after the reduction, annual additions shall be reduced to the extent necessary in the manner described in Sections 6.01 through 6.03. The methods of avoiding the limitation described in this paragraph will not apply if the Employer indicates another method below. Other Method. (Note to Employer: Provide below language which will satisfy the 1.0 limitation of section 415(e) of the Code. Such language must preclude Employer discretion. See section 1.415-1 of the Regulations for guidance.) 3. The limitation year is the following 12-consecutive month period: X. VESTING PROVISIONS The Employer hereby specifies the following vesting schedule, subject to (1) the minimum vesting requirements as noted and (2) the concurrence of the Plan Administrator. Years of Specified Minimum Service Percent Vesting Completed Vesting Requirements** Zero 100 % No minimum One 1.00 % No minimum Two 1.00 % No minimum Three ].00 % Not less than 20% Four 100 % Not less than 40% Five _l~0___% Not less than 60% Six 1-00 % Not less than 80% Seven, or more 100 % Must equal 100% (**These minimum vesting requirements conform to the Code's three to seven year vesting schedule. If the employee becomes 100% vested by the completion of five years of service, there is no minimum for years three and four.) XI. Loans are permitted under the Plan, as provided in Article XIV: UI Yes ~ No MPP Adoption Agreement 12/23/94 001 -94 XlI. The Employer hereby attests that it is a unit of state or local government or an agency or instrumentality of one or more units of state or local government. XIII. The Prototype Sponsor hereby agrees to inform the Employer of any amendments to the Plan made pursuant to Section 15.05 of the Plan or of the discontinuance or abandonment of the Plan. XIV. The Employer hereby appoints the Prototype Sponsor as the Plan Administrator pursuant to the terms and conditions of the ICMA RETIREMENT CORPORATION PROTOTYPE MONEY PURCHASE PLAN & TRUST. The Employer hereby agrees to the provisions of the Plan and Trust. XV. The Employer hereby acknowledges it understands that failure to properly fill out this Adoption Agreement may result in disqualification of the Plan. XVI. An adopting Employer may not rely on a notification letter issued by the National or District Office of the Internal Revenue Service as evidence that the Plan is qualified under section 401 of the Internal Revenue Code. In order to obtain reliance ~vith respect to plan qualification, the Employer must apply to the appropriate key district office for a determination letter. This Adoption Agreement may be used only in conjunction with basic Plan document number 001. In Witness Whereof, the Employer hereby causes this Agreement to be executed on this day of , 19 EMPLOYER ~ ~ Accepted: ICM~ETIRE~T CORPORATION By: Title: C' t:¥ Fla{n~i3~er Title: Corporat~ Secretary Attest: ~/W/d--~..' itte/~~ .~/~ .... MPP Adoption Agreement 12/23/94 001-94 LOAN GUIDELINES NAME OF PLAN: ~T'V¥ QF AV~NTI]'RA CITY MANAGER RETIREMENT PLAN I. PURPOSE The purpose of these guidelines is to establish the terms and conditions under wlJch the Employer will grant loans to participants. This is the only official Loan Program Document of the above named Plan. II. ELIGIBILITY Loans are available to ail active employees. Loans will not be granted to participants who have an existing loan in default. Loans are available from the following sources: [select one or both] ~ Employer Contribution Account (vested balances only) Participant Contribution Accounts (pre- and post-tax, if applicable, including Employee Mandatory, Employee Voluntary, Employer Rollover, and Portable Benefits Accounts, but excluding the Deduct- ible Employee Contribution/Qualified Voluntary Employee Contribution Account) Loans will be pro-rated among all the funds in which the participant is invested at the time the loan is made. Loans are available for the following purposes: [select onel [D All purposes Loans shall only be granted in the event of a participant's hardship or for the purpose of enabling a participant to meet certain specified financial situations. The Employer shall determine, based on all relevant facts and circumstances, that the amount of the loan is not in excess of the amount required to relieve the financial need. For this purpose, financial need shall include, but not be limited to: unreimbursed medical expenses of the participant or members of the participant's immediate family, establishing or substantially rehabilitating the principal residence of the participant, or paying for a college education (including graduate studies) for the participant or his/her dependents. Ill. FREQUENCY OE LOANS [select one] ~ Participants may receive one loan per calendar year. Moreover, participants may have only one outstanding loan at a time. Participants may receive one loan per calendar year. Moreover, no participant may have more than five (5) loans outstanding at one time. PP93F IV. LOAN AMOUNT The minimum loan amount is $1,000. The maximum loan amount is: the lesser of: (1) $50,000, reduced by the excess (if any) of: The highest outstanding balance of loans during the one-year period ending on the day before the date a loan is to be made, over b. The outstanding balance of loans on the date the loan is to be made; or (2) 1/2 of the participant's vested account balance. If a participant has any loans outstanding at the time a new loan is requested, the new loan will be limited to the maximum amount calculated above reduced by the total of the outstanding loans. V. LENGIH OE LOAN A loan must be repaid in substantially equal installments of principal and interest, at least monthly, over a period that does not exceed five (5) years. Loans for a principal residence must be repaid in substantially equal installments of principal and interest, at least monthly, over no more than I0 [state number of years] years (maximum 30 years). VI. LOAN REPAYMENI PROCESS Loans for active employees must be repaid through payroll deduction. Repayment will begin as soon as practi- cable on a date determined by the Employer's payroll cycle. Loans outstanding for former employees who are allowed under Section X. to maintain their loans or loans outstanding for employees on a leave of absence must be repaid on the same schedule as if payroll deductions were still being made unless they reamortize their loans and establish a new repayment schedule which provides that substantially equal payments are made at least monthly over the remaining period of the loan. All repayments must be made through the Employer. Loan payments, including loan payments f~om former employees, are allocated to the same investment options designated on the 401 Enrollment Form or according to the most current 401 change form which specifies contribution allocations. VII. LOAN INTEREST RATE The rate of interest for loans of five (5) years or less will be based on prime plus 0.5%. The rate of interest for loans for a principal residence will be based on the FHA/VA rate. Interest rates are determined on the last business day of the month preceding the month the loan is disbursed. The interest rate is locked in at the time a loan is approved and remains constant throughout the life of the loan. The prime interest rate is determined on the last business day of each month using the Wall Street Journal as the source. The FHA/VA interest rate is also determined on the last business day of each month using the Telerate Information Service as the source. pP93F Loan interest rates for new loans may fluctuate upward or downward monthly, depending on the movement of the prime and FHA/VA interest rates. The Employer may modify the manner in which loan interest rates will be determined, but only with respect to future loans. VIII. LOAN APPLICATION PROCEDURE All loans must be requested in writing on an application approved by the Plan Administrator. The application must be signed by the participant. The Employer must review and approve the application. If the participant is married at the time of application, and spousal consent is required by the plan for the loan, the participant's spouse must consent, in writing, to the loan and the consent must be witnessed by a plan repre~ sentative or notary public. Such consent must be given within the ninety (90) day period before the time the loan is made, Spousal consent, if required, must accompany the application in order for the application to be considered complete. The participant will be required to sign a promissory note evidencing the loan and a disclosure statement which includes an amortization schedule prior to receiving a loan check. Loan checks will generally be issued on the Friday following the receipt of a complete loan application~ The loan check, promissory note, disclosure statement and troth-in-lending recision notice will be sent to the Employer, who will obtain the necessary signatures and deliver the check to the participant. All executed documents must be returned to the Plan Adrrdnistrator within 10 calendar days from the date the check is issued. IX. SECURITY/COLLATERAL That portion of a participant's vested account balance that is equal to the amount of the loan is used as collateral for the loan. The collateral amount may not exceed 50% of the participant's vested account balance at the time the loan is taken. Only that portion of the vested account balance that corresponds to the mount of the outstanding loan balance is used as collateral. X. ACCELERAIION [select one] All loans are due and payable in full upon separation from service. [] All loans are due and payable when a participant receives a distribution of all of his/her account balance after separation from service. The amount of the outstanding loan balance will be reported as a distribution in addition to the amount of cash distributed from the plan. All loans are due and payable when a participant receives a distribution of part of his/her account balance after separation from service. The amount of the outstanding loan balance will reported as a distribution in addition to the amount of cash distributed from the plan. PP93F XI. REAMORTIZATION Any outstanding loan may be reamordzed. Reamorfization means changing the terms of a loan, such as length of repayment period, interest rale, and frequency of repayments. A loan may not be re, amortized to extend the length of the loan repayment period to more than five (5) years from the date the loan was originally made, or in the case of a loan to secure a principal residence, beyond the number of years specified by the Employer in Section V. above. A participant must request the reamortization of a loan in writing on a reamortization application acceptable to the Plan Administrator. Spousal consent must accompany the request for re. amortization when such consent is required by the plan. Upon processing the request, a new disclosure statement will be sent to the Employer for endorsement by the participant and approval by the Employer. The executed disclosure statement must be returned to the Plan Administra- tor within 10 calendar days from the date it is signed. The new disclosure statement is considered an amendment to the original promissory note, therefore a new promissory note will not be required. A reamortization will not be considered a new loan for purposes of calculating the number of loans outstanding or the one loan per calendar limit XII. REFINANCING EXISTING LOANS If a participant has one outstanding loan, that loan may be refinanced. If a participant has more than one outstand- ing loan, no loans may be refinanced. Refinancing means concurrently repaying an existing loan and borrowing an additional amount through a new loan. In order to refinance an existing loan, a participant must request a new loan in writing on an application approved by the Plan Administrator. Spousal consent must accompany the application when such consent is required by the plan. Such request must be made at a time when the participant is eligible to obtain a loan as defined by the Employer in Section III. above. The amount of a new loan requested for the purpose of refinancing is subject to the loan limits specified in Section IV. above. Because a refinancing is considered a new loan, only active employees may refinance an outstanding loan. Xlll. REDUCTION OF LOAN If a participant dies and leaves an outstanding loan, the unpaid loan balance will be repaid from the account balance before any distributions are made to a beneficiary. XIV. LOAN DEFAULT If a required payment of principal and interest is not made within 90 days of the date such payment is due, the loan is considered in default. If a loan is in default, the loan will be foreclosed during the calendar year in which the participant separates from service. However, the IRS "deems" a default to be a distribution in the year the default occurs. Therefore, the amount of the outstanding loan at the time of the default, including accrued interest, will be reported to the IRS as a distribution in the year the default occurs even though the loan may not be fore- closed at that time. The distribution may be subject to taxes and possibly a penalty for early withdrawal. If a participant has separated from ~ervice and defaults on a loan, then the loan will be foreclosed during the calendar year in which the default occurs. The amount of the outstanding loan, including accrued interest, will be reported to the IRS as a distribution which may be subject to taxes and possibly a penalty for early withdrawal. PP93F If the Employer has elected in Section X. and the promissory note so provides, a loan becomes due and payable when the participant separates from service. If the terms of the loan contain tl~is provision, the outstanding loan an~ount is "dee~ned" in det~ult as of the date of separation from service. The amount of the outstanding loan, including accrued interest, will be reported to the IRS as a distribution which ~nay be subject to taxes and possibly a penalty for early withdrawal. If the Employer has so elected in Section X. and the promissory note so provides, a loan becomes due and payable when the participant takes a distribution of some or all of the balance in his/her account after separation from service. If the terms of the loans contain such a provision and the outstanding loan balance is not paid prior to the distribution from the account, the outstanding loan amount will be considered in default upon issuance of the distribution check. The amount of the outstanding loan, including accrued interest, will be reported to the IRS as a distribution which may be subject to taxes and possibly a penalty for early withdrawal. XV. DE MINIMIS ACCOUNTS AND OUTSTANDING LOAN BALANCE If a participant separates from service and the participant's total vested account balance, including the outstanding loan balance, is $3,500 or less, the Plan will automatically foreclose the loan. '[he account balance remaining after the loan has been satisfied will be disbursed in accordance with De Minimis provisions of Section 10.04 of the Plan. If this occurs, the amount of the loan, including accrued interest, will be reported to the IRS as part of the distribution, which may be subject to taxes and possibly a penalty for early withdrawal. XVI. FEES Fees may be charged for various services associated with the application for and issuance of loans. All applicable fees will be debited from the participant's account balance. A schedule of fees applicable to this Plan is available from the Plan Administrator. XVlI. OTHER The Employer has the right to set other terms and conditions as it deems necessary for loans from the Plan in order to comply with any legal requirements. All terms and conditions will be administered in a uniform and non-discriminatory manner. In Witness Whereof, the Employer hereby caused these Guidelines to be executed this __day of ,19 TITLE:~ TITLE' City Manager L / ATTEST: N"~ '~'~ ATTEST.~ PP93F ICMA RETIREMENT CORPORATION ADMINISTRATIVE SERVICES AGREEMENT Type: 401 Account Number: 9536 ICMA Plan # 9536 RETIREMENT CORPORATION ADMINISTRATIVE SERVICES AGREEMENT This Agreement· made as of the =4~:,Z;JL day of · 199(~, (herein referred to as the "Inception Date"), between The International City Management Association Retirement Corporation ("RC'), a nonprofit corporation organized and existing under the laws of the State of Delaware; and City of Aventura ("Employer") a City organized and existing under the laws of the State of Florida with an office at 2750 NE 187th Street, Aventura, Florida 33180. Recitals Employer acts as a public plan sponsor for a retirement plan ("Plan") with responsibility to obtain investment alternatives and services for employees participating in that Plan; The ICMA Retirement Trust (the "Trust") is a common law trust governed by an elected Board of Trustees for the commingled investment of retirement funds held by state and local governmental units for their employees; RC acts as investment adviser to the Trust; RC has designed, and the Trust offers, a series of separate funds (the "Funds") for the investment of plan assets as referenced in the Trust's principal disclosure documents, "Making Sound Investment Decisions: A Retirement Investment Guide" and "A Retirement Investment Guide for the Mutual Fund Series." The Funds are available only to public employers and only through the Trust and RC. In addition to serving as investment adviser to the Trust, RC provides a complete offering of services to public employers for the operation of employee retirement plans including, but not limited to, communications concerning investment alternatives, account maintenance, account record-keeping, investment and tax reporting, form processing, benefit disbursement and asset management. -2- I~JMA Plan it 9536 RETIREMENT CORPORATION Agreements 1. A.n.nnintmp_nt nf RC Employer hereby designates RC as Administrator of the Plan to perform all non-discretionary functions necessary for the administration of the Plan with respect to assets in the Plan deposited with the Trust. The functions to be performed by RC include: (a) allocation in accordance with participant direction of individual accounts to investment Funds offered by the Trust; (b) maintenance of individual accounts for participants reflecting amounts deferred, income, gain, or loss credited, and amounts disbursed as benefits; (c) provision of periodic reports to the Employer and participants of the status of Plan investments and individual accounts; (d) communication to participants of information regarding their rights and elections under the Plan; and (e) disbursement of benefits as agent for the Employer in accordance with terms of the Plan. 2. Acln.ntinn of TrHgt Employer has adopted the Declaration of Trust of the ICMA Retirement Trust and agrees to the commingled investment of assets of the Plan within the Trust. Employer agrees that operation of the Plan and investment, management and disbursement of amounts deposited in the Trust shall be subject to the Declaration of Trust, as it may be amended from time to time and shall also be subject to terms and conditions set forth in disclosure documents (such as the Retirement Investment Guide or Employer Bulletins) as those terms and conditions may be adjusted from time to time. It is understood that the term "Employer Trust" as it is used in the Declaration of Trust shall mean this Administrative Services Agreement. 3. EmplnyRr DlJt.v to FHrni~h lnfnrmntinn Employer agrees to furnish to RC on a timely basis such information as is necessary for RC to carry out its responsibilities as Administrator of the Plan, including information needed to allocate individual participant accounts to Funds in the Trust, and information as to the employment status of participants, and participant ages, addresses and other identifying information (including tax ICMA Plan # 9536 RETIREMENT CORPORATION identification numbers). RC shall be entitled to rely upon the accuracy of any information that is furnished to it'by a responsible official of the Employer or any information relating to an individual participant or beneficiary that is furnished by such participant or beneficiary, and RC shall not be responsible for any error arising from its reliance on such information. RC will provide account information in reports, statements or accountings. All account discrepancies must be reported to RC within 120 days of the close of the quarter in which the discrepancy occurs. After that time the report, statement, or accounting shall be deemed to have been accepted by the Employer and the participants 4. C~.rtnin Rp.nr~_.~ntntinn.% Wnrrnnti~.~: nnd Cov~nnnt.~ RC represents and warrants to Employer that: (a) RC is a non-profit corporation with full power and authority to enter into this Agreement and to perform its obligations under this Agreement. The ability of RC to serve as investment adviser to the Trust is dependent upon the continued willingness of the Trust for RC to serve in that capacity. (b) RC is an investment adviser registered as such with the Securities and Exchange Commission under the Investment Advisers Act of 1940, as amended. ICMA-RC Services, Inc. (a wholly owned subsidiary of RC) is registered as a broker- dealer with the Securities and Exchange Commission (SEC) and is a member in good standing of the National Association of Securities Dealers, Inc. RC covenants with employer that: (c) RC shall maintain and administer the Plan in compliance with the requirements for plans which satisfy the qualification requirements of Section 401 of the Internal Revenue Code; provided, however, RC shall not be responsible for the qualified status of the Plan in the event that the Employer directs RC to administer the Plan or disburse assets in a manner inconsistent with the requirements of Section 401 or otherwise causes the Plan not to be carried out in accordance with its terms; provided, further, that if the plan document used by the Employer contains terms that differ from the terms of RC's standardized plan document, RC shall not be responsible for the qualified status of the Plan to the extent affected by the differing terms in the Employer's plan document. Employer' represents and warrants to RC that: (d) Employer is organized in the form and manner recited in the opening paragraph of this Agreement with full power and authority to enter into and perform its obligations under this Agreement and to act for the Plan and participants in the ICMA Plan # 9536 RETIREMENT CORPORATION manner contemplated in this Agreement. Execution, delivery, and performance of this Agreement will not conflict with any law, rule, regulation or contract by which the Employer is bound or to which it is a party. 5, Pnrtini.nntinn in ~prtnin Prnn~-~din0~ The Employer hereby authorizes RC to act as agent, to appear on its behalf, and to join the Employer as a necessary party in all legal proceedings involving the garnishment of benefits or the transfer of benefits pursuant to the divorce or separation of participants in the Employer Plan. The Employer consents to the disbursement by RC of benefits that have been garnished or transferred to a former spouse, spouse or child pursuant to a domestic relations order. 6. Cnm,np.n.~ntinn nnd Pn.vm~nt (a) Plan Administration Fee. The amount to be paid for plan administration services under this Agreement shall be 0.75% per annum of the amount of Plan assets invested in the Trust. Such fee shall be computed based on average daily net Plan assets in the Trust. (b) Account Maintenance Fee. There shall be an annual account maintenance fee of $25.00. The account maintenance fee is payable in full on January 1 of each year on each account in existence on that date. For accounts established after January 1, the fee is payable on the first day of the calendar quarter following establishment and is prorated by reference to the number of calendar quarters remaining on the day of payment. (c) Annual Plan Fee. There shall be an annual Emptoyer fee of $0.00. The annual Plan Fee will be billed evenly on a quarterly basis and is payable within 30 days of receipt of billing. Plans which are initially established midyear will be billed on a pro-rata basis. (d) Mutual Fund Services Fee. There is an annual charge of 0.25% of assets under management that are held in the Trust's Mutual Fund Series. (e) Model Portfolio Fund Fee. There is an annual charge of 0.10% of assets under management that are held in the Trust's Model Portfolio Funds. (f) Compensation for Management Services to the Trust. Employer acknowledges that in addition to amounts payable under this Agreement, RC receives fees from the Trust for investment management services furnished to the Trust, except that this fee is not assessed in the Mutual Fund Series ICMA Plan # 9536 RETIREMENT CORPORATION (g) Payment Procedures. (i) All payments to RC pursuant to Section 6(a), (b), (d) and (e) shall be paid out of the Plan Assets held by the Trust and shall be paid by the Trust. The amount of Plan Assets held in the Trust shall be adjusted by the Trust as required to reflect such payments. (ii) All payments to RC pursuant to Section 6(c) shall be paid directly by Employer, and shall not be deducted from Plan Assets held by the Trust. 7. ~.~tndy Employer understands that amounts invested in the Trust are to be remitted directly to the Trust in accordance with instructions provided to Employer by RC and are not to be remitted to RC. In the event that any check or wire transfer is incorrectly labeled or transferred to RC, RC is authorized, acting on behalf of the transferor, to transfer such check or wire transfer to the Trust. 8. Rc_~pnn.~ihitit¥ RC shall not be responsible for any acts or omissions of any person other than RC in connection with the administration or operation of the Plan. 9. T~.rm This Agreement may be terminated without penalty by either party on sixty days advance notice in writing to the other. 10. Amc. ndrn~.nt~ ~nd Adj~mtrn~.nt.~ (a) This Agreement may not be amended except by written instrument signed by the parties. (b) The parties agree that compensation for services under this Agreement and administrative and operational arrangements may be adjusted as follows: RC may propose an adjustment by written notice to the Employer given at least 60 days before the effective date of the adjustment and the notice may appear in disclosure documents such as Employer Bulletins and the Retirement Investment Guide. Such adjustment shall become effective unless, within the 60 day period before the effective date the Employer notifies RC in writing that it does not accept such adjustment, in which event the parties will negotiate with respect to the adjustment. (c) No failure to exercise and no delay in exercising any right, remedy, ICMA Plan # 9536 RETIREMEN"F CORPORATION power or privilege hereunder shall operate as a waiver of such right, remedy, power or privilege. 11. Nntien.~ All notices required to be delivered under Section 10 of this Agreement shall be delivered personally or by registered or certified mail, postage prepaid; return receipt requested, to (i) Legal Department, ICMA Retirement Corporation, 777 North Capitol Street, N.E., Suite 600, Washington, D.C, 20002-4240; (ii) Employer at the office set forth in the first paragraph hereof, or to any other address designated by the party to receive the same by written notice similarly given. 12. ~nm.nlp_tR AgrP. P. mnnt This Agreement shall constitute the sole agreement between RC and Employer relating to the object of this Agreement and correctly sets forth the complete rights, duties and obligations of each party to the other as of its date. Any prior agreements, promises, negotiations or representations, verbal or otherwise, not expressly set forth in this Agreement are of no force and effect. 13, Gnvnrnin9 I Rw This agreement shall be governed by and construed in accordance with the laws of the State of Florida applicable to contracts made in that jurisdiction without reference to its conflicts of laws provisions. -7- ICMA Plan # 9536 RETIREMENT CORPORATION In Witness Whereof, the parties hereto hay9 executed this Agreement as of the Inception Date first above written. CITY OF AVENTURA by: ~ ~ // Signature/Date ~/~ Name and Title (Please Print) INTERNATIONAL CITY MANAGEMENT ASSOCIATION RETIREMENT CORPOR~.r~ON ~r~ bY:ste p~he n ~'m. '~'rd k o~1~/Da ~/?e /'~ Corporate Secretary RECEIYE~ ~ $ I II~ -8- ICMA RETIREMENT CORPORATION June 26, 1996 ¢~.~ North Cap,roi Street NE Harry Kilgore Director of Finance Support Services City of Aventura 2999 NE 191 Street Aventura, FL 33180 RE: ICMA Retirement Corporation Account Number 109535 Dear Mr. Kilgore The ICMA Retirement Corporation is pleased to accept the City of Aventura as a sponsor of the ICMA Retirement Corporation Prototype Money Purchase Plan and Trust. A copy of the executed adoption agreement is enclosed. Contributions on behalf of your eligible employees may be forwarded at this time. The City of Aventura Money Purchase Plan account number is referenced above and should be included on all correspondence. The ICMA Retirement Corporation Prototype Money Purchase Plan and Trust is classified by the IRS as a non-standard regional prototype plan and the ICMA Retirement Corporation is the prototype sponsor. As such, we will notify you annually whether we continue to be the prototype sponsor, whether any amendments have been made to the regional prototype plan, and, if amendments have been made, the requirements you must satisfy in order to be entitled to maintain your plan as a regional prototype. We look forward to providing the City of Aventura with the most exceptional retirement program available in the industry. If you have any questions, or need supplies, please do not hesitate to contact the Employer Services staff at 800-326-7272. Sincerely, Stephen Wm. Nordholt Corporate Secretary cc: Tommy Howard, Territory Director Alexa Phillips, Marketing Representative ICMA-RC Services, Inc. Member NASD and SIPC. is a wholly owned broker dealer subsidiaot of the ICMA Retirement Corporation ICMA RETIREMENT CORPORATION PROTOTYPE MONEY PURCHASE PLAN & TRUST ADOPTION AGREEMENT #001 Account Number The Employer hereby establishes a Money Puic. J~er~{~,~gd~j~sgto be known as City of Aventur~ Dept. Director .& Assist Dept Dzr lille"Plan'" .... ")'~ th~'fo~*';m of the ICMA Retir~--~me~t Corporation Prototype Money Purchase Plan and Trust. This Plan is an amendment and restatement of an existing defined contribution money purchase plan. ~ Yes ~l No If yes, please specify the name of the defined contribution money purchase plan which this Plan hereby amends and restates: I. Employer: CITY OF AVENTURA, FLORIDA I1. Prototype Sponsor: Name: 1CMA Retirement Corporation Address: 777 N. Capitol Street, N.E. Washington, D.C. 20002-4240 Telephone Number: (202) 962-4600 III. The Effective Date of the Plan shall be the first day of the Plan Year during which the Employer adopts the Plan, unless an alternate Effective Date is hereby specified: IV. Plan Year will mean: The twelve (12) consecutive month period which coincides with the limita- tion year. (See Section 6.05(i) of the Plan.) The twelve (12) consecutive month period commencing on 10/01 and each anniversary thereof. MPP Adoption Agreement 12/23/94 001-94 V. Normal Retirement Age shall be ago 9+1. / ~not to exceed age 65). VI. ELIGIBILITY REQUIREMENTS: 1. The following group or groups of Employees are eligible to participate in the Plan: All Employees All Full-Time Employees Salaried Employees Non-union Employees Management Employees Public Safety Employees General Employees x Other (specify below) Department Directors and Assistant Department Directors The group specified must correspond to a group of the same designation d~at is defined in the statutes, ordinances, rules, regulations, personal manuals or other material in effect in the state or locality of the Employer. 2. The Employer hereby waives or reduces the requirement of a twelve (12) month Period of Service for participation. The required Period of Service shall be N/A (write N/A if an Employee is eligible to participate upon employment). If this waiver or reduction is elected, it shall apply to all Employees within the Covered Employment Classification. 3. A minimum age requirement is hereby specified for eligibility to participate. The minimum age requirement is N/A (not to exceed age 21. Write N/A if no minimum age is declared.) VII. CONTRIBUTION PROVISIONS 1. The Employer shall contribute as follows (choose one, if applicable): Fixed Employer Contributions With Or Without Mandatory Participant Contributions. The Employer shall contribute on behalf of each Participant 1 2.0 % of Earnings or $ 0 00for the Plan Year (subject to the limitations of Article V1 of the Plan). E~ch Participant is required to contribute 0.0 % of Earnings or $ fl O{br the Plan Year as a condition of participation in the Plan. (Write "0" if no contribution is required.) If Participant Contributions are required under this option, a Participant shall not have the right to discontinue or vary the rate of such contributions after becoming a Plan Participant. [] MPP Adoption Agreement 12/23/94 001-94 The Employer hereby elects to "pi~k up" the Mandatory/Required Participant Contribution. ~l Yes ~ No [Note to Employer: Neither an opinion letter issued by the Internal Revenue Service with respect to the Protorype Plan, nor a determination letter issued to an adopting Employer is a ruling by the Internal Revenue Service that Participant contributions that are picked up by the Employer are not includable in the Participant's gross income for federal income tax pur- poses. The Employer may seek such a ruling. Picked up contributions are excludable from the Participant's gross income under section 414(h)(2) of the Internal Revenue Code of 1986 only if they meet the requirements of Rev. Rul. 81-35, 1981-1 C.B. 255. Those requirements are (1) that the Employer must specify that the contributions, although designated as employee contributions, are being paid by the Em- ployer in lieu of contributions by the employee; and (2) the employee must not have the option of receiving the contributed amounts directly instead of having them paid by the Employer to the plan.] Fixed Employer Match of Participant Contributions. The Employer shall contribute on behalf of each Participant % of Earn- ings for the Plan Year (subject to the limitations of Articles V and VI of the Plan) for each Plan Year that such Participant has contributed % of Earnings or $ . Under this option, there is a single, fixed rate of Em- ployer contributions, but a Participant may decline to make the required Participant contributions in any Plan Year, in which case no Employer contri- bution will be made on the Participant's behalf in that Plan Year. Variable Employer Match Of Participant Contributions. The Employer shall contribute on behalf of each Participant an amount de- termined as follows (subject to the limitations of Articles V and VI of the Plan): % of the Participant contributions made by the Participant for the Plan Year (not including Participant contributions exceeding % of Earnings or $ ); PLUS % of the contributions made by the Participant for the Plan Year in excess of those included in the above paragraph (but not includ- ing Participant contributions exceeding in the aggregate % of Earnings ). Employer Contributions on behalf of a Participant for a Plan Year shall not exceed $ or .__% of Earnings, whichever is I~1 more or ~1 less. MPP Adoption Agreement 12/23/94 001-94 2. Each Participant may make voluntary (unmatched), after-tax contribution, subject to the limitations of Section 4.05 and Articles V and VI of the Plan. ~l Yes 2!}x No 3. Employer contributions and Participant contributions shall be c ~ntributed to the Trust in accordance with the following payment schedule: Bi-weekly VIII. EARNINGS Earnings, as defined under Section 2.09 of the Plan, shall include: (a) Overtime ~ Yes ~l No (b) Bonuses ~l Yes ~ No IX. LIMITATION ON ALLOCATIONS If the Employer (i) maintains or ever maintained another qualified plan in which any Par- ticipant in this Plan is (or was) a participant or could possibly become a participant, and/or (ii) maintains a welfare benefit fund (as defined in section 419(e) of the Code) or an indi- vidual medical account (as defined in section 415(1)(2) of the Code, under which amounts are treated as Annual Additions with respect to any Participant in this Plan) the Employer hereby agrees to limit contributions to all such plans as provided herein, if necessary in order to avoid excess contributions (as described in Sections 6.03 and 6.(14 of the Plan). 1. If the Participant is covered under another qualified defined contribution plan maintained by the Employer, other than a Regional Prototype Plan, the provisions of Section 6.02(a) through (f) of the Plan will apply as if the other plan were a Master Prototype Plan, unless another method has been indicated below. Other Method. (Provide the method under which the plans will limit total Annual Additions to the Maximum Permissible Amount, and will properly reduce any excess amounts, in a manner that precludes Employer discretion.) MPP Adoption Agreement 12/23/94 001-94 2. If the Participant is or has ever been a participant in a defined benefit plan main- tained by the Employer, and if the limitation in Section 6.04 of the Plan would be exceeded, then the Participant's Projected Annua}. Benefit under the defined benefit plan shall be reduced in accordance with the terms thereof to the extent necessary to satisfy such limitation. If such plan does not provide for such reduction, or if the limitation is still exceeded after the reduction, annual additions shall be reduced to the extent necessary in the manner described in Sections 6.01 through 6.03. The methods of avoiding the limitation described in this paragraph will not apply if the Employer indicates another method below. Other Method. (Note to Employer: Provide below language which will satisfy the 1.0 limitation of section 415(e) of the Code. Such language must preclude Employer discretion. See section ~..415-1 of the Regulations for guidance.) 3. The limitation year is the following 12-consecutiw.- month period: X. VESTING PROVISIONS The Employer hereby specifies the following vesting schedule, subject to (1) the minimum vesting requirements as noted and (2) the concurrence of the Plan Administrator. Years of Specified Minimum Service Percent Vesting Completed Vesting Requirements** Zero :1.00 % No minimum One 100 % No minimum Two 1 0fl % No minimum Three :1.00 % Not less than 20% Four 100 % Not less than 40% Five 100 % Not less than 60% Six 1 fl0 % Not less than 80% Seven, or more 100 % Must equal 100% (**These minimum vesting requirements conform to the Code's three to seven year vesting schedule. If the employee becomes 100% vested by the completion of five years of service, there is no minimum for years three and four.) XI. Loans are permitted under the Plan, as provided in Article XIV: ~l Yes ~ No MPP Adoption Agreement 12/23/94 001-94 XII. The Employer hereby attests that it is a unit of state or local government or an agency or instrumentality of one or more units of state or local government. XIII. The Prototype Sponsor hereby agrees to inform the Employer of any amendments to the Plan made pursuant to Section 15.05 of the Plan or of the discontinuance or abandonment of the Plan. XIV. The Employer hereby appoints the Prototype Sponsor as the Plan Administrator pursuant to the terms and conditions of the ICMA RETIREMENT CORPORATION PROTOTYPE MONEY PURCHASE PLAN & TRUST. The Employer hereby agrees to the provisions of the Plan and Trust. XV. The Employer hereby acknowledges it understands that failure to properly fill out this Adoption Agreement may result in disqualification of the Plan. XVI. An adopting Employer may not rely on a notification letter issued by the National or District Office of the Internal Revenue Service as evidence that the Plan is qualified under section 40i of the Internal Revenue Code. In order to obtain reliance with respect to plan qualification, the Employer must apply to the appropriate key district office for a determination letter. This Adoption Agreement may be used only in conjunction with basic Plan document number 001. In Witness Whereof, the Employer hereby causes this Agreement to be executed on this day of , 19 MPP Adoption Agreement 12/23/94 001-94 LOAN GUIDELINES NAME OF PLAN: CITY OF AVENTURA DEPARTMENT DIRECTORS AND ASSISTANTS DIRECTORS RETIREMENT PLAN I. PURPOSE · ]ae purpose of these guidelines is to establish the terms and conditions under which the Employer will grant loans to participants. This is the only official Loan Program Document of the above named Plan. II. ELIGIBILITY Loans are available to all active employees. Loans will not be granted to participants who have an existing loan in default. Loans are available from the following sources: [select one or both] ~ Employer Contribution Account (vested balances only) Participant Contribution Accounts (pre- and post-tax, if applicable, including Employee Mandatory, Employee Voluntary, Employer Rollover, and Portable Benefits Accounts, but excluding the Deduct- ible Employee Contribution/Qualified Voluntary Employee Contribution Account) Loans will be pro-rated among all the funds in which the participant is invested at the time the loan is made. Loans are available for the following purposes: [select one] ~3 All purposes Loans shall only be granted in the event of a participant's hardship or for the purpose of enabling a participant to meet certain specified financial situations. The Employer shall determine, based on all relevant facts and circumstances, that the amount of the loan is not: in excess of the amount required to relieve the financial need. For this purpose, financial need shall include, but not be limited to: unreimbursed medical expenses of the participant or members of the participant's immediate family, establishing or substantially rehabilitating the principal residence of the participant, or paying for a college education (including graduate studies) for the participant or his/her dependents. III. FREQUENCY OF LOANS [select one] ~1 Participants may receive one loan per calendar year. Moreover, participants may have only one outstanding loan at a time. Participants may receive one loan per calendar year. Moreover, no participant may have more than five (5) loans outstanding at one time. PP93F IV. LOAN AMOUNT The minimum loan amount is $1,0130. Tbe maximum loan tunount is: the lesser of: (1) $50,000, reduced by the excess (if any) of: a. The highest outstanding balance of loans during the one-year period ending on the day before the date a loan is to be made, over b. The outstanding balance of loans on the date the loan is to be made; or (2) 1/2 of the participant's vested account balance. If a participant has any loans outstanding at the time a new loan is requested, the new loan will be limited to the maximum amount calculated above reduced by the total of the outstanding loans. V. LENGTH OF LOAN A loan must be repaid in substantially equal installments of principal and interest, at least monthly, over a period that does not exceed five (5) years. Loans for a principal residence must be repaid in substantially equal installments of principal and interest, at least monthly, over no more than l 0 [state number of years] years (maximum 30 years). VI. lOAN REPAYMENT PROCESS Loans for active employees must be repaid through payroll deduction. Repayme, nt will begin as soon as practi- cable on a date determined by the Employer's payroll cycle. Loans outstanding for former employees who are allowed under Section X. to maintain their loans or loans outstanding for employees on a leave of absence must be repaid on the same schedule as if payroli deductions were still being made unless they reamortize their loans and establish a new repayment schedule which provides that substantially equal payments are made at least monthly over the remaining period of the loan. All repayments must be made through the Employer. Loan payments, including loan payments from former employees, are allocated to the same investment options designated on the 401 Enrollment Form or according to the most current 401 change form which specifies contribution allocations. VII. LOAN INTEREST RATE The rate of interest for loans of five (5) years or less will be based on prime plus 0.5%. The rate of interest for loans for a principal residence will be based on the FHA/VA rate. Interest rates are determined on the last business day of the month preceding the month the loan is disbursed. The interest rate is locked in at the time a loan is approved and remains constant throughout the life of the loan. The prime interest rate is determined on the last business day of each month using the Wall Street Journal as the source. The FHA/VA interest rate is also determined on the last business day of each month using the Telerate Information Service as the source. PP93F Loan interest rates for new loans may fluctuate upward or downward monthly, depending on the movement of the prime and FHA/VA interest rates. The Employer may modify the manner in which loan interest rates will be determined, but only with respect to future loans. VIII. LOAN APPLICATION PROCEDURE All loans must be requested in writing on an application approved by the Plan Administrator. The application must be signed by the participant. The Employer must review and approve the application. If the participant is married at the time of application, and spousal consent is required by hhe plan for the loan, the participant's spouse must consent, in writing, to the loan and the consent must be witnessed by a plan repre- sentative or notary public. Such consent must be given within the ninety (90) day period before the time the loan is made. Spousal consent, if required, must accompany the application in order for the application to be considered complete. The participant will be required to sign a promissory note evidencing the loan and a disclosure statement which includes an amortization schedule prior to receiving a loan check. Loan checks will generally be issued on the Friday following the receipt of a complete loan application. The loan check, promissory note, disclosure statement and truth-in-lending recision notice will be sent to the Employer, who will obtain the necessary signatures and deliver the check to the participant. All executed documents must be returned to the Plan Administrator within 10 calendar days from the date the check is issued. IX. SECU RITY/COLLATERAL That portion of a participant's vested account balance that is equal to the amount of the loan is used as collateral for the loan. The collateral amount may not exceed 50% of the participant's vested account balance at the time the loan is taken. Only that portion of the vested account balance that corresponds to the amount of the outstanding loan balance is used as collateral. X. ACCELERAIION [select one] [] All loans are due and payable in full upon separation from service. All loans are due and payable when a participant receives a distribution of all of his/her account balance after separation from service. The amount of the outstanding loan balance will be reported as a distribution in addition to the amount of cash distributed from the plan. All loans are due and payable when a participant receives a distribution of part of his/her account balance after separation from service. The mnount of the outstanding loan balance will reported as a distribution in addition to the amount of cash distributed from the plan. PP93F XI. REAMORTIZATION Any outstanding loan may be reamortized. Reamorfization means changing the terms of a loan, such as length of repayment period, interest rate, and frequency of repayments. A loan may not be remnortized to extend the length of the loan repayment period to more than five (5) years from the date the loan was originally made, or in the case of a loan to secure a principal residence, beyond the number of years specified by the Employer in Section V. above. A participant must request the remnortization of a loan in writing on a rean~ortizallon application acceptable to the Plan Administrator. Spousal consent must accompany the request for rean~o~tization when such consent is required by the plan. Upon processing the request, a new disclosure statement will he sent to the Employer for endorsement by the participant and approval by the Employer. The executed disclosure stalement must be returned to the Plan Adininistra~ tot within 10 calendar days from the date it is signed. The new disclosure statement is considered an amendment to the original promissory note, therefore a new promissory note will not be required. A remnortizarion will not be considered a new loan for pmtx)ses of calculating the number of loans outstanding or the one loan per calendar li~nit. Xll. REFINANCING [XlSIING LOANS If a participant has one outstanding loan, that loan may be refinanced. If a participant has more than one outstand- ing loan, no loans may be refinanced. Refinancing means concurrently repaying an existing loan and borrowing an additional amount through a new loan. In order to refinance an existing loan, a participant must request a new loan in writing on an application approved by the Plan Administrator. Spnusal consent must accompany the application when such consent is required by the plan. Such request must be made at a time when the participant is eligible to obtain a loan as defined by the Etnployer in Section III. above. The amount of a new loan requested for the purpose of refinancing is subject to the loan limits specified in Section IV. above. Because a refinancing is considered a new loan, only active employees may refinance an outstanding loan. XIII. REDUCIION OF LOAN If a participant dies and leaves an outstanding loan, the unpaid loan baiance will be repaid from the account balance before any distributions are made to a beneficiary. XIV. LOAN DEFAULT If a required payment of principal and interest is not made within 90 days of the date such payment is due, the loan is considered in default. If a loan is in default, the loan will be foreclosed during the calendar year in wlfich the participant separates from service. However, the IRS "deems" a default to be a distribution in the year the default occurs. Therelbre, the amount of the outstanding loan at the time of the default, including accrued interest, will be reported to the IRS as a distribution in the year the default occurs even though the loan may not be fore- closed at that time. The distribution may be subject to taxes and possibly a penalty for early withdrawal. If a participant has separated from service and defaults on a loan, then the loan will be tbreclosed during the calendar year in which the default occurs. The amount of the outstanding loan, including accrued interest, will be reported to the IRS as a distribution which may be subject to taxes and possibly a penalty for early withdrawal. PP93F If the Employer has elected in Section X. and the pronfissory note so vrovides, a loan becomes due and payable when the participant separates from service. If the terms of the loan contain this provision, the outstanding loan amount is "deemed" in default as of the date of separation from service. The amount of the outstanding loan, inchiding accrued interest, will be reported to the IRS as a distribution which may be subject to taxes and possibly a penalty for early withdrawal. If the Employer has so elected in Section X. a~d the promissory note so provides, a loan becomes due and payable when the participant takes a distribution of some or all of the balance in his/her account after separation from service. If the terms of the loans contain such a provision and the outstanding loan balance is not paid prior to the distribution from the account, the outstanding loan amount will be considered in default upon issuance of the distribution check. The amount of the outstanding loan, including accrued interest, will be reported to the IRS as a distribution which may be subject to taxes and possibly a penalty for early withdrawal. XV. DE MINIMIS ACCOUNTS AND OUTSTANDING LOAN BALANCE If a participant separates from service and the participant's total vested account balance, including the outstanding loan balance, is $3,500 or less, the Plan will automatically foreclose the loan. The account balance remaining after the loan has been satisfied will be disbursed in accordance with De Minimis provisions of Section 10.04 of the Plan. If this occurs, the amount of the loan, including accrued interest, will be reported to the IRS as part of the distribution, which may be subject to taxes and possibly a penalty for early withdrawal. XVI. FEES Fees may be charged for various services associated with the application for and issuance of loans. All applicable fees will be debited from the participant's account balance. A schedule of fees applicable to this Plan is available t?om the Plan Administrator. XVll. OIHER The Employer has the right to set other terms and conditions as it deems necessary for loans from the Plan in order to comply with any legal requirements. All terms and conditions will be administered in a uniform and non-discriminatory manner. In Witness Whereof, the Employer hereby caused these Guidelines to be executed this __day of ,19 . PP93F ICMA RETIREMENT CORPORATION ADMINISTRATIVE SERVICES AGREEMENT Type: 401 Account Number: 9535 ICMA Plan # 9535 RETIREMENT CORPORATION ADMINISTRATIVE SERVICES AGREEMENT This Agreement, made as of the ~.~,~//L day of , 199~r (herein referred to as the "Inception Date"), between The International City Management Association Retirement Corporation CRC"), a nonprofit corporation organized and existing under the laws of the State of Delaware; and City of Aventura ("Employer") a City organized and existing under the laws of the State of Florida with an office at 2750 NE 187th Street, Aventura, Florida 33180. Recitals Employer acts as a public plan sponsor for a retirement plan ("Plan") with responsibility to obtain investment alternatives and services for employees participating in that Plan; The ICMA Retirement Trust (the "Trust") is a common law trust governed by an elected Board of Trustees for the commingled investment of retirement funds held by state and local governmental units for their employees; RC acts as investment adviser to the Trust; RC has designed, and the Trust offers, a series of separate funds (the "Funds") for the investment of plan assets as referenced in the Trust's principal disclosure documents, "Making Sound Investment Decisions: A Retirement Investment Guide" and "A Retirement Investment Guide for the Mutual Fund Series." The Funds are available only to public employers and only through the Trust and RC. In addition to serving as investment adviser to the Trust, RC provides a complete offering of services to public employers for the operation of employee retirement plans including, but not limited to, communications concerning investment alternatives, account maintenance, account record-keeping, investment and tax reporting, form processing, benefit disbursement and asset management. -2- ICMA Plan # 9535 CORPORATION Agreements 1. Appointment r~f RC Employer hereby designates RC as Administrator of the Plan to perform all non-discretionary functions necessary for the administration of the Plan with respect to assets in the Plan deposited with the Trust. The functions to be performed by RC include: (a) allocation in accordance with participant direction of individual accounts to investment Funds offered by the Trust; (b) maintenance of individual accounts for participants reflecting amounts deferred, income, gain, or loss credited, and amounts disbursed as benefits; (c) provision of periodic reports to the Employer and participants of the status of Plan investments and individual accounts; (d) communication to participants of information regarding their rights and elections under the Plan; and (e) disbursement of benefits as agent for the Employer in accordance with terms of the Plan. 2. Adoption of Trust Employer has adopted the Declaration of Trust of the ICMA Retirement Trust and agrees to the commingled investment of assets of the Plan within the Trust. Employer agrees that operation of the Plan and investment, management and disbursement of amounts deposited in the Trust shall be subject to the Declaration of Trust, as it may be amended from time to time and shall also be subject to terms and conditions set forth in disclosure documents (such as the Retirement Investment Guide or Employer Bulletins) as those terms and conditions may be adjusted from time to time. It is understood that the term "Employer Trust" as it is used in the Declaration of Trust shall mean this Administrative Services Agreement. Employer agrees to furnish to RC on a timely basis such information as is necessary for RC to carry out its responsibilities as Administrator of the Plan, including information needed to allocate individual participant accounts to Funds in the Trust, and information as to the employment status of participants, and participant ages, addresses and other identifying information {including tax ICMA Plan # 9535 RETIREMENT CORPORATION identification numbers). RC shall be entitled to rely upon the accuracy of any information that is furnished to it by a responsible official of the Employer or any information relating to an individual participant or beneficiary that is furnished by such participant or beneficiary, and RC shall not be responsible for any error arising from its reliance on such information. RC will provide account information in reports, statements or accountings. All account discrepancies must be reported to RC within 120 days of the close of the quarter in which the discrepancy occurs. After that time the report, statement, or accounting shall be deemed to have been accepted by the Employer and the participants 4. ~.rtain R~.pr~-~.ntation.% Warr~nti~..% and RC represents and warrants to Employer that: (a) RC is a non-profit corporation with full power and authority to enter into this Agreement and to perform its obligations under this Agreement. The ability of RC to serve as investment adviser to the Trust is dependent upon the continued willingness of the Trust for RC to serve in that capacity. (b) RC is an investment adviser registered as such with the Securities and Exchange Commission under the Investment Advisers Act of 1940, as amended. ICMA-RC Services, Inc. (a wholly owned subsidiary of RC) is registered as a broker- dealer with the Securities and Exchange Commission (SEC) and is a member in good standing of the National Association of Securities Dealers, Inc. RC covenants with employer that: (c) RC shall maintain and administer the Plan in compliance with the requirements for plans which satisfy the qualification requirements of Section 401 of the Internal Revenue Code; provided, however, RC shall not be responsible for the qualified status of the Plan in the event that the Employer directs RC to administer the Plan or disburse assets in a manner inconsistent with the requirements of Section 401 or otherwise causes the Plan not to be carried out in accordance with its terms; provided, further, that if the plan document used by the Employer contains terms that differ from the terms of RC's standardized plan document, RC shall not be responsible for the qualified status of the Plan to the extent affected by the differing terms in the Employer's plan document. Employer represents and warrants to RC that: (d) Employer is organized in the form and manner recited in the opening paragraph of this Agreement with full power and authority to enter into and perform its obligations under this Agreement and to act for the Plan and participants in the -4- ICMA Plan # 9535 RET~R~;MEN'r CORPORATION manner contemplated in this Agreement. Execution, delivery, and performance of this Agreement will not conflict with any law, rule, regulation or contract by which the Employer is bound or to which it is a party. 5. Parti~.ipation in Certain Proc~.~.dings The Employer hereby authorizes RC to act as agent, to appear on its behalf, and to join the Employer as a necessary party in all legal proceedings involving the garnishment of benefits or the transfer of benefits pursuant to the divorce or separation of participants in the Employer Plan. The Employer consents to the disbursement by RC of benefits that have been garnished or transferred to a former spouse, spouse or child pursuant to a domestic relations order. 6. Comp~.n.~ation and PaymeJ'Lt (a) Plan Administration Fee. The amount to be paid for plan administration services under this Agreement shall be 0.75% per annum of the amount of Plan assets invested in the Trust. Such fee shall be computed based on average daily net Plan assets in the Trust. (b) Account Maintenance Fee. There shall be an annual account maintenance fee of $25.00. The account maintenance fee is payable in full on January I of each year on each account in existence on that date. For accounts established after January 1, the fee is payable on the first day of the calendar quarter following establishment and is prorated by reference to the number of calendar quarters remaining on the day of payment. (c) Annual Plan Fee. There shall be an annual Employer fee of $500.00. The annual Plan Fee will be billed evenly on a quarterly basis and is payable within 30 days of receipt of billing. Plans which are initially established midyear will be billed on a pro-rata basis. (d) Mutual Fund Services Fee. There is an annual charge of 0.25% of assets under management that are held in the Trust's Mutual Fund Series. (e) Model Portfolio Fund Fee. There is an annual charge of 0.10% of assets under management that are held in the Trust's Model Portfolio Funds. (f) Compensation for Management Services to the Trust. Employer acknowledges that in addition to amounts payable under this Agreement, RC receives fees from the Trust for investment management services furnished to the Trust, except that this fee is not assessed in the Mutual Fund Series -5- ICMA Plan # 9535 CORPORATION (g) Payment Procedures. (i) All payments to RC pursuant to Section 6(a), (b), (d) and (e) shall be paid out of the Plan Assets held by the Trust and shall be paid by the Trust. The amount of Plan Assets held in the Trust shall be adjusted by the Trust as required to reflect such payments. (ii) All payments to RC pursuant to Section 6(c) shall be paid directly by Employer, and shall not be deducted from Plan Assets held by the Trust. 7. Cu.qtody Employer understands that amounts invested in the Trust are to be remitted directly to the Trust in accordance with instructions provided to Employer by RC and are not to be remitted to RC. In the event that any check or wire transfer is incorrectly labeled or transferred to RC, RC is authorized, acting on behalf of the transferor, to transfer such check or wire transfer to the Trust. 8. RP.s ponsilailit¥ RC shall not be responsible for any acts or omissions of any person other than RC in connection with the administration or operation of the Plan. 9. Tc. rm This Agreement may be terminated without penalty by either party on sixty days advance notice in writing to the other. 10. Am~.ndro~nt~ and Adj~mtmo. nts (a) This Agreement may not be amended except by written instrument signed by the parties. (b) The parties agree that compensation for services under this Agreement and administrative and operational arrangements may be adjusted as follows: RC may propose an adjustment by written notice to the Employer given at least 60 days before the effective date of the adjustment and the notice may appear in disclosure documents such as Employer Butletins and the Retirement Investment Guide. Such adjustment shall become effective unless, within the 60 day period before the effective date the Employer notifies RC in writing that it does not accept such adjustment, in which event the parties will negotiate with respect to the adjustment. (c) No failure to exercise and no delay in exercising any right, remedy, -6- ICMA Plan # 9535 RETIREMENT CORPORATION power or privilege hereunder shall operate as a waiver of such right, remedy, power or privilege. 11. Notin~..g All notices required to be delivered under Section 10 of this Agreement shall be delivered personally or by registered or certified mail, postage prepaid, return receipt requested, to (i) Legal Department, ICMA Retirement Corporation, 777 North Capitol Street, N.E., Suite 600, Washington, D.C, 20002-4240; (ii) Employer at the office set forth in the first paragraph hereof, or to any other address designated by the party to receive the same by written notice similarly given. 12. C, gQ3plata Agraamant This Agreement shall constitute the sole agreement between RC and Employer relating to the object of this Agreement and correctly sets forth the complete rights, duties and obligations of each party to the other as of its date. Any prior agreements, promises, negotiations or representations, verbal or otherwise, not expressly set forth in this Agreement are of no force and effect. 13. GavemingA_a~ This agreement shall be governed by and construed in accordance with the laws of the State of Florida applicable to contracts made in that jurisdiction without reference to its conflicts of laws provisions. -7- ICMA Plan # 9535 R~'IRF.~F~N'r CORPORATION In Witness Whereof, the parties hereto have executed this Agreement as of the Inception Date first above written. by: ~ ._ Signature/Date Name and Title (Please i~rint)- INTERNATIONAL CITY MANAGEMENT ASSOCIATION RETIREMENT Corporate Secretary -8- ICMA RETIREMENT CORPORATION PROTOTYPE MONEY PURCHASE PLAN & TRUST ADOPTION AGREEMENT #001 Account Number C~ 5--~ Of The Employer hereby establishes a Money Purchase Plan and Trust to be known as City ot5 Aventu ~mpl oyees Retirement Plan (the "Plan") in the form of the ICMA Retirement Corporation Prototype Money Purchase Plan and Trust. This Plan is an amendment and restatement of an existing defined contribution money purchase plan. ~1 Yes ~1 No If yes, please specify the name of the defined contribution money purchase plan which this Plan hereby amends and restates: I. Employer: City of Aventura II. Prototype Sponsor: Name: ICMA Retirement Corporation Address: 777 N. Capitol Street, N.E. Washington, D.C. 20002-4240 Telephone Number: (202) 962-4600 III. The Effective Date of the Plan shall be the first day of the Plan Year during which the Employer adopts the Plan, unless an alternate Effective Date is hereby specified: IV. Plan Year will mean: The twelve (12) consecutive month period which coincides with the limita- tion year. (See Section 6.05(i) of the Plan.) The twelve (12) consecutive month period commencing on 10/01 and each anniversary thereof. MPP Adoption Agreement 12/23/94 001 -94 ¥. Normal Retirement Age shall be age ~'91/2(not to exceed age 65). VI. ELIGIBILITY REQUIREMENTS: 1. The following group or groups of Employees are eligible to participate in the Plan: All Employees All Full-Time Employees Salaried Employees Non-union Employees Management Employees Public Safety Employees General Employees X Other (specify below) All employees other than City Manager, Department Directors and Assistant Department Directors. The group specified must correspond to a group of the same designation that is defined in the statutes, ordinances, roles, regulations, personal manuals or other material in effect in the state or locality of the Employer. 2. The Employer hereby waives or reduces the requirement of a twelve (12) month Period of Service for participation. The required Period of Service shall be N/A (write N/A if an Employee is eligible to participate upon employment). If this waiver or reduction is elected, it shall apply to all Employees within the Covered Employment Classification. 3. A minimum age requirement is hereby specified for eligibility to participate. The minimum age requirement is N/A (not to exceed age 21. Write N/A if no minimum age is declared.) VII. CONTRIBUTION PROVISIONS 1. The Employer shall contribute as follows (choose one, if applicable): Fixed Employer Contributions With Or Without Mandatory Participant Contributions. The Employer shall contribute on behalf of each Participant 12.0% of Earnings or $0.0flor the Plan Year (subject to the limitations of Article VI of the Plan). Each Participant is required to contribute 0.0 % of Earnings or $0_ flOfor the Plan Year as a condition of participation in the Plan. (Write "0" if no contribution is required.) If Participant Contributions are required under this option, a Participant shall not have the right to discontinue or vary the rate of such contributions after becoming a Plan Participant. MPP Adoption Agreement 12/23/94 001-94 The Employer hereby elects to "pick up" the Mandatory/Required Participant Contribution. ~1 Yes ~l No [Note to Employer: Neither an opinion letter issued by the Internal Revenue Service with respect to the Prototype Plan, nor a determination letter issued to an adopting Employer is a ruling by the Internal Revenue Service that Participant contributions that are picked up by the Employer are not includable in the Participant's gross income for federal income tax pur- poses. The Employer may seek such a ruling. Picked up contributions are excludable from the Participant's gross income under section 414(h)(2) of the Internal Revenue Code of 1986 only if they meet the requirements of Rev. Rul. 81-35, 1981-1 C.B. 255. Those requirements are ( 1 ) that the Employer must specify that the contributions, although designated as employee contributions, are being paid by the Em- ployer in lieu of contributions by the employee; and (2) the employee must not have the option of receiving the contributed amounts directly instead of having them paid by the Employer to the plan.] Fixed Employer Match of Participant Contributions. The Employer shall contribute on behalf of each Participant % of Earn- ings for the Plan Year (subject to the limitations of Articles V and VI of the Plan) for each Plan Year that such Participant has contributed __% of Earnings or $ . Under this option, there is a single, fixed rate of Em- ployer contributions, but a Participant may decline to make the required Participant contributions in any Plan Year, in which case no Employer contri- bution will be made on the Participant's behalf in that Plan Year. Variable Employer Match Of Participant Contributions. The Employer shall contribute on behalf of each Participant an amount de- termined as follows (subject to the limitations of Articles V and VI of the Plan): % of the Participant contributions made by the Participant for the Plan Year (not including Participant contributions exceeding % of Earnings or $ .); PLUS % of the contributions made by the Participant for the Plan Year in excess of those included in the above paragraph (but not includ- ing Participant contributions exceeding in the aggregate % of Earnings or $ .). Employer Contributions on behalf of a Participant for a Plan Year shall not exceed $. or % of Earnings, whichever is [~l more or [~l less. MPP Adoption Agreement 12/23/94 001-94 2. Each Participant may make voluntary (unmatched), after-tax contribution, subject to the limitations of Section 4.05 and Articles V and VI of the Plan. I~l Yes ~ No 3. Employer contributions and Participant contributions shall be contributed to the Trust in accordance with the following payment schedule: Bi-',eekly VIII. EARNINGS Earnings, as defined under Section 2.09 of the Plan, shall include: (a) Overtime ~ Yes I~l No (b) Bonuses ~ Yes I~l No IX. LIMITATION ON ALLOCATIONS If the Employer (i) maintains or ever maintained another qualified plan in which any Par- ticipant in this Plan is (or was) a participant or could possibly become a participant, and/or (ii) maintains a welfare benefit fund (as defined in section 419(e) of the Code) or an indi- vidual medical account (as defined in section 415(1)(2) of the Code, under which amounts are treated as Annual Additions with respect to any Participant in this Plan) the Employer hereby agrees to limit contributions to all such plans as provided herein, if necessary in order to avoid excess contributions (as described in Sections 6.03 and 6.04 of the Plan). 1. If the Participant is covered under another qualified defined contribution plan maintained by the Employer, other than a Regional Prototype Plan, the provisions of Section 6.02(a) through (f) of the Plan will apply as if the other plan were a Master Prototype Plan, unless another method has been indicated below. Other Method. (Provide the method under which the plans will limit total Annual Additions to the Maximum Permissible Amount, and will properly reduce any excess amounts, in a manner that precludes Eniployer discretion.) MPP Adoption Agreement 12/23/94 001-94 2. If the Participant is or has ever been a participant in a defined benefit plan main- tained by the Employer, and if the limitation in Section 6.04 of the Plan would be exceeded, then the Participant's Projected Annual Benefit under the defined benefit plan shall be reduced in accordance with the terms thereof to the extent necessary to satisfy such limitation. If such plan does not provide for such reduction, or if the limitation is still exceeded after the reduction, annual additions shall be reduced to the extent necessary in the manner described in Sections 6.01 through 6.03. The methods of avoiding the limitation described in this paragraph will not apply if the Employer indicates another method below. Other Method. (Note to Employer: Provide below language which will satisfy the 1.0 limitation of section 415(e) of the Code. Such language must preclude Employer discretion. See section 1.415-1 of the Regulations for guidance.) 3. The limitation year is the following 12-consecutive month period: X. VESTING PROVISIONS The Employer hereby specifies the following vesting schedule, subject to (1) the minimum vesting requirements as noted and (2) the concurrence of the Plan Administrator. Years of Specified Minimum Service Percent Vesting Completed Vesting Requirements** Zero 0 % No minimum One 0 % No minimum Two 0 % No minimum Three 90 % Not less than 20% Four /40 % Not less than 40% Five ~% Not less than 60% Six 80 % Not less than 80% Seven, or more 100 % Must equal 100% (**These minimum vesting requirements conform to the Code's three to seven year vesting schedule. If the employee becomes 100% vested by the completion of five years of service, there is no minimum for years three and four.) XI. Loans are permitted under the Plan, as provided in Article XIV: {il Yes Ui No MPP Adoption Agreement 12/23/94 001 -94 XII. The Employer hereby attests that it is a unit of state or local government or an agency or instrumentality of one or more units of state or local government. XlII. The Prototype Sponsor hereby agrees to inform the Employer of any amendments to the Plan made pursuant to Section 15.05 of the Plan or of the discontinuance or abandomnent of the Plan. XlV. The Employer hereby appoints the Prototype Sponsor as the Plan Ad ~inistrator pursuant to the terms and conditions of the ICMA RETIREMENT CORPORATION PROTOTYPE MONEY PURCHASE PLAN & TRUST. The Employer hereby agrees to the provisions of the Plan and Trust. XV. The Employer hereby acknowledges it understands that failure to properly fill out this Adoption Agreement may result in disqualification of the Plan. XVI. An adopting Employer may not rely on a notification letter issued by the National or District Office of the Internal Revenue Service as evidence that the Plan is qualified under section 401 of the Internal Revenue Code. In order to obtain reliance with respect to plan qualification, the Employer must apply to the appropriate key district office for a determination letter. This Adoption Agreement may be used only in conjunction with basic Plan document number 001. In Witness Whereof, the Employer hereby causes this Agreement to be executed on this _ day of , 19 EMPLOYER (..--~,~ / Accepted: IC%RETIRE~T CORPORATION ~rlc ~. ~oro~ /' Title:City ManagerI ./ Title: Corporate/Secretary Attest' MPP Adoption Agreement 12/23/94 001 -94 ICMA RETIREMENT CORPORATION PROTOTYPE MONEY PURCHASE PLAN & TRUST EMPLOYER RETAIN BOOKLET 001-94 USING THIS DOCUMENT Prototype Money Purchase Plan & Trust Basic Document Internal Revenue Service Opinion Letter and Publication 1488 and Declaration of Trust of the ICMA Retirement Trust This is one of two booklets containing information relating to your Prototype Money Purchase Plan & Trust with the ICMA Retirement Corporation. Please read the information and retain it for your files. If you have any questions concerning inforn, ation in this booklet, contact the Client Services staff, toll-free at 1-800-326-7272. ICMA RETIREMENT CORPORATION PROTOTYPE MONEY PURCHASE PLAN & TRUST BASIC DOCUMENT 001 MPP 12/23/94 001-94 Table of Contents [. PURPOSE ...................................................... 1 I1. DFqN]TIONS ................................................... 1 2.01 Account 1 2.02 Accounting Date I 2.03 Adoption Agreement 1 2.04 Beneficiary 1 2.05 Break in Service 1 2.06 Code 2 2.07 Covered Employment Classification 2 2.08 Disability 2 2.09 Earnings 2 2.10 Effective Date 3 2.11 Employee 3 2.12 Employer 3 2.13 Highly Compensated Employee 3 2.14 Hour of Service 4 2.15 Non-highly Compensated Employee 5 2.16 Nonforfeitable Interest 5 2.17 Normal Retirement Age 5 2.18 Participant 5 2.19 Period of Service 5 2.20 Period of Severance 5 2.21 Plan 6 2.22 Plan Administrator 6 2.23 Plan Year 6 2.24 Prototype Plan 6 2.25 Prototype Sponsor 6 2.26 Trust 6 Ill. ELIGIBILITY .................................................... 6 3.01 Service 6 3.02 Age 6 3.03 Return to Covered Employment Classification 6 3.04 Service Before a Break in Service 6 MPP 12/23/94 001-94 IV CONTRIBUTIONS ............................................... 7 4.01 Employer Contributions 7 4.02 Forfeitures 7 4.03 Mandatory Participant Contributions 7 4.04 Matched Participant Contributions 7 4.05 Voluntary Participant Contributions 7 4.06 Deductible Employee Contributions 8 4.07 Changes in Participant Election 8 4.08 Portability of Benefits 8 4.09 Return of Employer Contributions 9 V. SPECIAL LIMITATIONS ON EMPLOYEE CONTRIBUTIONS AND MATCHING CONTRIBUTIONS ................................ 9 5.01 Applicability 9 5.02 Limitations on Employee Contributions and Employer Matching Contributions 9 5.03 Avoidance of Excess Aggregate Contributions 11 5.04 Correction of Excess Aggregate Contributions 11 5.05 Definitions 12 VI. LIMITATION ON ALLOCATIONS .................................... 1 3 6.01 Participants Only in This Plan 13 6.02 Participants in More than One Plan 14 6.03 Participant in Another Defined Contribution Plan 15 6.04 Participant in Defined Benefit Plan i5 6.05 Definitions 16 VII. TRUST AND INVESTMENT ACCOUNTS .............................. 20 7.01 Trust 20 7.02 Investment Powers 20 7.03 Taxes and Expenses 23 7.04 Payment of Benefits 23 7.05 Investment Funds 23 7.06 Valuation of Accounts 23 7.07 Participant Loan Accounts 23 MPP 12/23/94 001 04 VIII. VESTING ...................................................... 23 8.01 Vesting Schedule 23 8.02 Crediting Periods of Service 24 8.03 Service After Break in Service 24 b.04 Vesting Upon Normal Retirement Age 24 8.05 Vesting Upon Death or Disability 24 8.06 Forfeitures 25 8.07 Reinstatement of Forfeitures 25 IX. BENEFITS CLAIM ................................................ 26 9.01 Claim of Benefits 26 9.02 Appeal Procedure 26 X. COMMENCEMENT OF BENEFITS ................................... 26 10.01 Normal and Elective Commencement of Benefits 26 10.02 Restrictions on Immediate Distributions 26 10.03 Transfer to Another Plan 28 10.04 De Minimis Accounts 29 10.05 Withdrawal of Voluntary Contributions 29 10.06 Withdrawal of Deductible Employee Contributions 29 10.07 Latest Commencement of Benefits 29 X[. DISTRIBUTION REQUIREMENTS ................................... 30 11.01 General Rules 30 11.02 Required Beginning Date 30 11.03 Limits on Distribution Periods 30 11.04 Determination of Amount to be Distributed Each Year 30 11.05 Death Distribution Provisions 31 11.06 Definitions 32 11.07 Transitional Rule 34 Xll. MODES OF DI8TRIBUTION OF BENEFITS ............................ 35 12.01 Normal Mode of Distribution 35 12.02 Elective Mode of Distribution 35 · 12.03 Election of Mode 36 12.04 Death Benefits 36 MPP 12/23/94 001-94 XIll. SPOUSAL BENEFIT REQUIREMENTS ................................ 36 13.01 Application 36 13.02 Qualified Joint and Survivor Annuity 36 13.03 Qualified Preretirement Survivor Annuity 36 13.04 Notice Requirements 37 13.05 Transitional Rules 38 i3.06 Definitions 40 13.07 Annuity Contracts 41 XIV. LOANS TO PARTICIPANTS ........................................ 42 14.01 Availability of Loans to Participants 42 I4.02 Terms and Conditions of Loans to Participants 42 14.03 Participant Loan Accounts 44 XV. PLAN AMENDMENT, TERMINATION AND OPTIONAL PROVISIONS ....... 45 15.01 Amendment by Employer 45 15.02 Amendment of Vesting Schedule 46 15.03 Termination by Employer 46 15.04 Discontinuance of Contributions 46 15.05 Amendment by Prototype Sponsor 47 15.06 Optional Provisions 47 XVI. ADMINISTRATION .............................................. 7 16.01 Powers of the Employer 47 i6.02 Duties of the Plan Administrator 47 16.03 Protection of the Employer 48 16.04 Protection of the Plan Administrator 48 16.05 Resignation or Removal of Plan Adrninistrator 48 16.06 No Termination Penalty 48 16.07 Decisions of Plan Administrator 48 MPP 12/23/94 001-94 XVl[. MISCELLANEOUS ............................................... 48 17.0I Nonguarantee of Employment 48 17.02 Rights to Trust Assets 49 17.03 Nonalienation of Benefits 49 17.04 Qualified Domestic Relations Order 49 17.05 Nonforfeitability of Benefits 49 17.06 Incompetency of Payee 49 17.07 Inability to Locate Payee 50 17.08 Mergers, Consolidations, and Transfer of Assets 50 17.09 Employer Records 50 17.10 Controlled Groups and Affiliated Service Groups 50 17.11 Gender and Number 50 17.12 Leased Employees 50 17.13 Applicable Law 51 XVlll. TOP-HEAVY PROVISIONS ......................................... 51 18.01 General Rule 51 18.02 Definitions 51 18.03 Determination of Top-Heavy Status 52 18.04 Top-heavy Ratios 53 18.05 Vesting Schedule 54 18.06 Minimum Employer Contributions 54 I8.07 Additional Contribution 55 MPP 12/23/94 001-94 Prototype Money Purchase Plan & Trust Basic Document 001 ]. PURPOSE The Employer hereby adopts this Plan and Trust to provide funds for its Employees' re- tirement, and to provide funds for their Beneficiaries in the event of death. The benefits provided in this Plan shall be paid from the Trust. The Plan and the Trust forming a part hereof are adopted and shall be maintained for the exclusive benefit of eligible Employees and their Beneficiaries. Except as provided in Sections 4.09 and 15.03, no part of the corpus or income of the Trust shall revert to the Employer or be used for or diverted to purposes other than the exclusive benefit of Participants and their Beneficiaries. II. DEFINITIONS 2.01 Account. A separate record which shall be established and maintained under the Trust for eactx Participant, and which shall include all Participant subaccounts created pursu- ant to Article IV, plus any Participant Loan Account created pursuant to Section 14.03. Each subaccount created pursuant to Article IV shall include any earnings of the Trust and adjustments for withdrawals, and realized and unrealized gains and losses allocable thereto. The term "Account" may also refer to any of such separate subaccounts. 2.02 Accounting Date. The last business day of each calendar month that the New York Stock Exchange is open for trading, and such other dates as may be determined by the Plan Administrator, as provided in Section 7.06 for valuing the Trust's assets. 2.03 Adoption Agreement. The separate agreement executed by the Employer and the Proto- type Sponsor through which the Employer adopts the Plan and elects among the various alternatives provided thereunder, and which upon execution, becomes an integral part of the Plan. 2.04 Beneficiary. The person or persons designated by the Participant who, subject to the requirements of Article XIII, shall receive any benefits payable hereunder in the event of the Participant's death. The designation of such Beneficiary shall be in writing to the Plan Administrator. A Participant may designate primary and contingent Beneficiaries. Where no designated Beneficiary survives the Participant, the Participant's Beneficiary shall be his/her surviving spouse or, if none, his/her estate. 2.05 Break in Service. A Period of Severance of at least twelve (12) consecutive months. In the case of an individual who is absent from work for maternity or paternity reasons, the twelve (12) consecuuve month period beginning on the first anniversary of the first date of such absence shall not constitute a Break in Service. For purposes of this para- graph, an absence from work for maternity or paternity reasons means an absence (1) by reason of the pregnancy of the individual, (2) by reason of the birth of a child of the individual, (3) by reason of the placement of a child with the individual in connection with the adoption of such child by such individual, or (4) for purposes of caring for such child for a period beginning immediately following such birth or placement. MPP 12/23/94 001 -94 2.06 Code. The Internal Revenue Code of 1986, as amended from time to time. 2.07 Covered Employment Classification. The group or groups of Employees eligible to make and/or have contributions to this Plan made on their behalf, as specified by the Employer in the Adoption Agreement. 2.08 Disability. A physical or mental impairment which is of such permanence and degree that a Participant is unable because of such impairment to perform any substantial gainful activity for which he/she is suited by virtue of his/her experience, training, or education and that has lasted, or can be expected to last, for a continuous period of not less than twelve (12) months, or can be expected to result in death. The permanence and degree of such impairment shall be supported by medical evidence. 2.09 Earnings. (a) General Rule. Earnings, which form the basis for computing Employer Contribu- tions, are all of each Participant's W-2 earnings which are actually paid to the Par- ticipant during the Plan Year, plus any contributions made pursuant to a salary re- duction agreement which are not includible in the gross income of the Employee under section 125,402(e)(3), 402(h)(I)(B), 403(b), 414(h)(2), or 457(b) of the Code. Unless the Employer elects otherwise in the Adoption Agreement, Earnings shall exclude overtime compensation and bonuses. Earnings, in the case of a self-employed individual, shall mean earned income. (b) Limitation on Earnings. Notwithstanding the foregoing, effective as of the first Plan Year beginning on or after January 1, 1989, and before January 1, 1994, the annual Earnings of each Participant taken into account for determining all benefits provided under the Plan for any Plan Year shall not exceed $200,000. This limita- tion shall be adjusted by the Secretary of the Treasury at the same time and in the same manner as under section 415 (d) of the Code, except that the dollar increase in effect on January 1 of any calendar year is effective for years beginning in such calendar year and the first adjustment to the $200,000 limitation is effective on January 1, 1990. For Plan Years beginning on or after January 1, 1994, the annual Earnings of each Participant taken into account for determining all benefits provided under the Plan for any Plan Year shall not exceed $150,000, as adjusted for increases in the cost-of- living in accordance with section 401(a)(17)(B) of the Code. The cost-of-living adjustment in effect for a calendar year applies to any determination period begin- ning in such calendar year. If a determination period consists of fewer than twelve (12) months, the annual Earning~ limit is an amount equal to the otherwise applicable annual Earnings limit multiplied by a fraction, the numerator of which is the number of months in the short determination perk)d, and the denominator of which is twelve (12). MPP 12/23/94 001-94 In determining the Earnings of a Participant for purposes of this limitation, the rules of section 414(q)(6) of the Code shall apply, except in applying such rules, the term "family" shall include only the spouse of the Participant and any lineal descen- dants of the Participant who have not attained age nineteen (19) before the close of the year. If, as a result of the application of such rules the adjusted annual Earnings limitation is exceeded, then the limitation shall be prorated among the affected individuals in proportion to each such individual's Earnings as determined under this Section prior to the application of this limitation. If Earnings for any prior determination period are taken into account in determin- ing a Participant's allocations for the current Plan Year, the Earnings for such prior determination period are subject to the applicable annual Earnings limit in effect for that prior year. For this purpose, for years beginning on or after January 1, 1989, the applicable annual Earnings limit is $200,000. In addition, in determining allo- cations in Plan Years beginning on or after January I, 1994, the annual Earnings limit in effect for determination periods beginning before that date is $150,000. (c) Limitations for Governmental Plans. In the case of an eligible participant in a governmental plan (within the meaning of section 414(d) of the Code), the dollar limitation shall not apply to the extent the Earnings which are allowed to be taken into account under the Plan would be reduced below the amount which was al- lowed to be taken into account under the Plan as in effect on July 1, 1993. For purposes of this Section, an eligible participant is an individual who first became a Participant in the Plan during a Plan Year beginning before the first Plan Year be- ginning after December 31, 1993. 2.10 Effective Date. The first day of the Plan Year during which the Employer adopts the Plan, unless the Employer elects in the Adoption Agreement an alternate date as the Effective Date of the Plan. 2.11 Employee. Any individual who performs services for the Employer or for any other em- ployer required to be aggregated with the Employer under sections 414(b), (c), (m) or (o) of the Code. Notxvithstanding the foregoing, however, no individual who is a "seLf-employed individual" within the meaning of section 401(c)(1 )(B) of the Code, or an "owner-employee" ~vithin the meaning of section 401(c)(3) of the Code shall be an Employee hereunder. A leased employee shall be an Employee in accordance with the provisions of Section 17.12. 2.12 Employer. The unit of state or local government or an agency or instrumentality of one (1) or more states or local governments that executes the Adoption Agreement. 2.13 Highly Compensated Employee. Any highly compensated active Employee or highly compensated former Employee. A highly compensated active Employee includes any Employee who performs service for the Employer during the determination year and who, during the look-back year: (i) received compensation from the Employer in excess of $ 75,000 (as adjusted pursuant MPP 12/23/94 ~1~ 001-94 to section 415(d) of the Code); (ii) received compensation from the Employer in excess of $50,000 (as adjusted pursuant to section 415(d) of the Code) and was a member of the top paid group for such year; or (iii) was an officer of the Employer and received compen- sation during such year that is greater than fifty percent (50%) of the dollar limitation in effbct under section 415(b)(1)(A) of the Code. The term "Highly Compensated Em- ployee'' also includes (i) any Employee who is both described in the preceding sentence if the term "determination year" is substituted for the term "look-back year" and one (1) of the one hundred (100) Employees who received the most compensation from the Em- ployer during the Plan Year; and (ii) any Employee who is a five percent (5%) owner at any time during the look-back year or determination year. If no officer has satisfied the compensation requirement of (iii) above during either a determination year or a look-back year, the highest paid officer for such year shall be treated as a Highly Compensated Employee. the purposes of determining who is a "Highly Compensated Employee," the" i determ - For look-back year shall be the twelve (12) nation year" shall be the Plan Year, and the" " month period immediately preceding the determination year. A highly compensated former Employee includes any Employee who separated from ser- vice (or was deemed to have separated) prior to the determination year, performs no service for the Employer during the determination year, and was a highly compensated active Employee for either the separation year or any determination year ending on or after the Employee's fifty-fifth (55th) birthday. If an Employee is, during a determination year or look-back year, a family member of either a five percent (5%) owner who is an active or former Employee or a Highly Com- pensated Employee who is one (1) of the ten (10) most Highly Compensated Employees ranked on the basis of compensation paid by the Employer during such year, then the family member and the five percent (5%) owner or top ten (10) Highly Compensated Employee shall be aggregated. In such case, the family member and five percent (5%) owner or top ten (10) Highly Compensated Employee shall be treated as a single Em- ployee receiving compensation and Plan contributions or benefits equal to the sum of such compensation and contributions or benefits of the fanrily member and five percent (5%) owner or top ten (10) Highly Compensated Employee. For purposes of this Sec- tion, family member includes the spouse, lineal ascendants and descendants of the Em- ployee or former Employee and the spouses of such lineal ascendants and descendants. The determination of who is a Highly Compensated Employee, including the determina- tions of the nmnber and identity of Employees in the top-paid group, the top one hundred (100) Employees, the number of Employees treated as officers and the compensation that is considered, will be made in accordance with section 414(q) of the Code apd the regu- lations thereunder. 2.14 Hour of Service. Each hour for which an Employee is paid or entitled to payment for the performance of duties for the Employer. MPP 12/23/94 001-94 2.15 Non-highly Compensated Employee. Any Employee who is not a Highly Compensated Employee. 2.16 Nonforfeitable Interest. The interest of the Participant or his/her Beneficiary (which- ever is applicable) in that percentage of his/her Employer Contribution Account balance which has vested pursuant to Article VIII. A Participan~ shall, at all times, have a one hundred percent (100%) Nonforfeitable Interest in his/her Participant Contribution, Portable Benefits, and Voluntary Contribution Accounts. 2.17 Normal Retirement Age. The age which the Employer specifies in the Adoption Agree- ment. If the Employer enforces a mandatory retirement age, the Normal Retirement Age is the lesser of that mandatory age or the age specified in the Adoption Agreement. 2.18 Participant. An Employee or former Employee for whom contributions have been made under the Plan and who has not yet received all of the payments of benefits to which he/ she is entitled under the Plan. A Participant is treated as benefiting under the Plan for any Play Year during which the Participant received or is deemed to receive an allocation in accordance with Treas. Reg. section 1.410(b)-(3)(a). 2.19 Period of Service. For purposes of determining an Employee's initial or continued eligi- bility to participate in the Plan or the Nonforfeitable Interest in the Participant's Ac- count balance derived from Employer Contributions, an Employee will receive credit for the aggregate of all time period(s) commencing with the Employee's first day of employ- ment or reemployment and ending on the date a Break in Service begins. The first day of employment or reemployment is the first day the Employee performs an Hour of Service. An Employee will also receive credit for any Period of Severance of less than twelve (12) consecutive months. Fractional periods of a year will be expressed in terms of days. If the Employer is a member of an affiliated service group (under section 414(m) of the Code), a controlled group of corporations (under section 414(b) of the Code), or a group of trades or businesses under common control (under section 414(c) of the Code), or any other entity required to be aggregated with the Employer pursuant to section 414(o) of the Code and the regulations thereunder, service will be credited for any employment for any period of time for any other member of such group. Service will also be credited for any individual required under section 414(n) of the Code or 414(o) of the Code and the regulations thereunder to be considered an Employee of any Employer aggregated under section 414(b), (c), or (m) of the Code. Notwithstanding anything to the contrary herein, if the Plan is an amendment and re- statement of a plan that previously calculated service under the hours of service method, service shall be credited in a manner that is at least as generous as that provided under Treas. Regs. section 1.410(a)-7(g). 2.20 Period of Severance. A continuous period of time during which the Employee is not employed by the Employer. Such period begins on the date the Employee retires, quits or is discharged, or if earlier, the twelve (12) month anniversary of the date on which the Employee was otherwise first absent from service. MPP 12/23/94 001-94 2.21 Plan. This Prototype Plan, as established by the Employer, including any elected provi- sions pursuant to the Adoption Agreement. 2.22 Plan Administrator. The Prototype Sponsor or any successor Plan Administrator. 2.23 Plan Year. The twelve (12) consecutive month period designated by the Employer in the Adoption Agreement. 2.24 Prototype Plan. The ICMA Retirement Corporation Prototype Muney Purcl~ase Plan. 2.25 Prototype Sponsor. The ICMA Retirement Corporation. 2.26 Trust. The Trust created under Article VII of the Plan which shall consist of all of the assets of the Plan derived from Employer and Participant contributions under the Plan, plus any income and gains thereon, less any losses, expenses and distributions to Partici- pants and Beneficiaries. Ill. ELIGIBILITY 3.01 Service. Except as provided in Sections 3.02 and 3.03 of the Plan, an Employee within the Covered Employment Classification who has completed a twelve (12) month Period of Service shall be eligible to participate in the Plan at the beginning of the payroll period next commencing thereafter. The Employer may elect in the Adoption Agreement to waive or reduce the twelve (12) month Period of Service. If the Employer maintains the plan of a predecessor employer, service with such employer shall be treated a Service for the Employer. 3.02 Age. The Employer may designate a minimum age requirement, not to exceed age twenty-one (21), for participation. Such age, if any, shall be declared in the Adoption Agreement. 3.03 Return to Covered Employment Classification. In the event a Participant is no longer a member of Covered Employment Classification and becomes ineligible to make contri- butions and/or have contributions made on his/her behalf, such Employee will become eligible for contributions immediately upon returning to a Covered Employment Classi- fication. If such Participant incurs a Break in Service, eligibility will be determined un- der the Break in Service rules of the Plan. In the event an Employee who is not a member of a Covered Employment Classification becomes a member, such Employee will be eligible to participate immediately if such Employee has satisfied the minimum age and service requirements and would have other- wise previously becot,~e a Participant. 3.04 Service Before a Break in Service. Ail Periods of Service with the Employer are counted toward eligibility, including Periods of Service before a Break in Service. MPP 12/23/94 001-94 IV. CONTRIBUTIONS 4.01 Employer Contributions. For each Plan Year, the Employer will contribute to the Trust an amount as specified in the Adoption Agreement. The Employer's full contribution for any Plan Year shall be due and paid not later than thirty (30) working days after the close of the Plan Year. Each Participant will share in Employer Contributions for the period beginning on the date the Participant commences participation under the Plan and end- ing on the date on which such Employee severs employment with the Employer or is no longer a member of a Covered Employment Classification, and such contributions shall be accounted for separately in his/her Employer Contribution Account. Notwithstand- ing anything to the contrary herein, if so elected by the Employer in the Adoption Agree- ment, an Employee shall be required to make contributkms as provided pursuant to Sec- tion 4.03 or 4.04 in order to be eligible for Employer Contributions to be made on his/her behalf to the Plan. 4.02 Forfeitures. All amounts forfeited by terminated Participants, pursuant to Section 8.06, shall be allocated to a suspense account and used to reduce dollar for dollar Employer Contributions otherwise required under the Plan for the current Plan Year and succeeding Plan Years, if necessary. Forfeitures may first be used to pay the reasonable administrative expenses of the Plan, with any remainder being applied to reduce Employer Contributions. 4.03 Mandatory Participant Contributions. If the Employer so elects in the Adoption Agree- ment, each eligible Employee shah make contributions at a prescribed rate as a require- ment for his/her participation in the Plan. Once such an eligible Employee becomes a Participant hereunder, he/she shall not thereafter have the right to discontinue or vary the rate of such Mandatory Participant Contributions. Such contributions shall be ac- counted for separately in the Participant Contribution Account. Such Account shall be at all times nonforfeitable by the Participant. 4.04 Matched Participant Contributions. If the Employer so elects in the Adoption Agree- ment, Employer Contributions shall be made on behalf of an eligible Employee for a Plan Year only if the Employee agrees to make Matched Participant Contributions for that Plan Year. The rate of Employer Contributions shall, to the extent specified in the Adop- tion Agreement, be based upon the rate at which Matched Participant Contributions are made for that Plan Year. Matched Participant Contributions shall be accounted for sepa- rately in the Participant Contribution Account. Such Account shall be at all times nonforfeitable by the Participant. 4.05 Voluntary Participant Contributions. If the Employer so elects in the Adoption Agree- ment, an eligible Employee may make voluntary (urn'hatched) contributions under the Plan for any Plan Year in any amount up to ten percent (10%) of his/her Earnings for such Plan Year. Such contributions shall be accounted for separately in the Participant's Vol- untary Contribution Account. Such Account shall be at all times nonforfeitable by the Participant. MPP 12/23/94 001-94 4.06 Deductible Employee Contributions. The Plan will not accept deductible employee con- tributions which are made for a taxable year beginning after December 1986. Contribu- tions made prior to that date will be maintained in a Deductible Employee Contribution Account. The Account will share in the gains and losses under the Plan in the same manner as described in Section 7.06 of the Plan. Such Account shall be at all times nonforfeitable by the Participant. 4.07 Changes in Participant Election. A Participant may elect to change his/her rate of Matched Participant Contributions or Voluntary Participant Contributions at anytime or during an election period as designated by the Employer. A Participant may discontinue such contributions at any time or during an election period as designated by the Employer. 4.08 Portability of Benefits. (a) An Employee within the Covered Employment Classification, whether or not he/ she has satisfied the minimum age and service requirements of Article 1II, may transfer or roll over his/her interest in a plan qualified under section 401 (a) or 403 (a) of the Code to this Plan, provided: (1) The distribution is on account of termination or discontinuance of the plan or the distribution becomes payable on account of the Employee's separation from service, death, disability or after the Employee attains age fifty-nine and one-half (59-1/2); and the form and nature of the distribution from the other plan satisfies the applicable requirements under the Code to make the transfer or rollover a nontaxable transaction to the Employee; (2) The amount distributed from the plan is transferred to this Plan no later than the sixtieth (60th) day after distribution was made from the plan; and (3) In the case of a rollover, the amount transferred to this Plan does not exceed the amount of the distribution reduced by the Employee contributions (if any) to the plan (other than accumulated deductible w~luntary contributions). Such transfer or rollover may also be through an Individual Retirement Plan quali- fied under section 408 of the Code where the Individual Retirement Plan was used as a conduit from the prior plan and the transfer is made in accordance with the rules provided at (a) through (c) of this paragraph and the transfer does not include any personal contributions or earnings thereon the Participant may have made to the Individual Retirement Plan. The amount transferred shall be deposited in the Trust and shall be credited to a Portable Benefits Account. Such Account shall be one hundred percent (100%) vested in th'~ Employee. MPP 12/23/94 001-94 The Plan will accept accumulated Deductible Employee Contributions as defined in section 72(0)(5) of the Code that were distributed from a qualified retirement plan and transferred (rolled over) pursuant to section 402(a)(5), 402(a)(7), 403(a)(4), or 408(d)(3) of the Code. Notwithstanding the above, this transferred (rolled over) amount shall be deposited to the Trust and shall be credited to a De- ductible Employee Contribution Account. Such ,~ccount shall be one hundred percent (100%) vested in the Employee. (b) An Employee within the Covered Employment Classification, whether or not he/ she has satisfied the minimum age and service requirement of Article III, may, upon approval by the Employer and the Plan Administrator, transfer his/her interest in another plan maintained by the Employer that is qualified under section 401fa) of the Code to this Plan, provided the transfer is effected through a one-time irrevo- cable written election made by the Participant. The amount transferred shall be deposited in the Trust and shall be credited to sources that maintain the same tributes as the plan from which they are transferred. Such transfer shall not reduce the accrued years or service credited to the Participant for purposes of vesting or eligibility for any Plan benefits or features. 4.09 Return of Employer Contributions. Any contribution made by the Employer because of a mistake of fact must be returned to the Employer within one year of the date of contri- bution. V. SPECIAL LIMITATIONS ON EMPLOYEE CONTRIBUTIONS AND MATCHING CONTRIBUTIONS 5.01 Applicability. The special limitations of this Article are applicable only to Employee Contributions and Matching Contributions that are subject to the special limitation of section 401 (m) of the Code. 5.02 Limitations on Employee Contributions and Employer Matching Contributions. fa) The Average Contribution Percentage (hereinafter "ACP') for Participants who are Highly Compensated Employees for each Plan Year and the ACP for Partici- pants who are Non-highly Compensated Employees for the same Plan Year must satisfy one (1) of the following tests: (1) The ACP for Participants who are Highly Compensated Employees for the Plan Year shall not exceed the ACP for Participants who are Non-highly Com-- pensated Employees for the same Plan Year multiplied by 1.25; or (2) The ACP for Participants who are Highly Compensated Employees for the Plan Year shall not exceed the ACP for Participants who are Non-highly Com- pensated Employees for the same Plan Year multiplied by two (2), provided that the ACP for Participants who are Highly Compensated Employees does not exceed the ACP for Participants who are Non-highly Compensated Em- ployees by more than two (2) percentage points. MPP 12/23/94 [] 001 -94 (b) Special Rules. ( 1 ) Multiple Use: If one ( 1 ) or more Highly Compensated Employees participate in both a CODA and a plan subject to the ACP test maintained by the Em- ployer, and the sum of the actual deferral percentage under the CODA ("ADP") and ACP of tl~ose Highly Compensated Employees subject to either or both tests exceeds the Aggregate Limit, then the ACP of those Highly Compen- sated Employees who also participate in a CODA will be reduced (beginning with such Highly Compensated Employee whose ACP is the bighest) so that the limit is not exceeded. The amount by which each Higl~ly Compensated Employee's Contribution Percentage Amounts is reduced shall be treated as an Excess Aggregate Contribution. The ADP and ACP of the Highly Com- pensated Employees are determined after any corrections required to meet the ADP and ACP tests. Multiple use does not occur if both the ADP and ACP of the Highly Compensated Employees does not exceed 1.25 multiplied by the ADP and ACP of the Non-highly Compensated Employees. (2) For purposes of this Section, the Contribution Percentage for any Participant who is a Highly Compensated Employee and who is eligible to have Contribu- tion Percentage Amounts allocated to his/her account under two (2) or more plans described in section 401(a) of the Code, or arrangements described in section 401(k) of the Code that are maintained by the Employer, shall be determined as if the total of such Contribution Percentage Amounts was made under each plan. If a Highly Compensated Employee participates in two (2) or more cash or deferred arrangements that have different plan years, all cash or deferred arrangements ending with or within the same calendar year shall be treated as a single arrangement. Notwithstanding the foregoing, certain plans shall be treated as separate if mandatorily disaggregated under regula- tions under section 401 (m) of the Code. (3) in the event that this Plan satisfies the requirements of sections 401(m), 401(a)(4) or 410(b) of the Code only if aggregated with one (1) or more other plans, or if one ( 1 ) or more other plans satisfy the requirements of such sec- tions of the Code only if aggregated with this Plan, then this Section shall be applied by determining the Contribution Percentage of Employees as if all such plans were a single plan. For plan years beginning after December 31, 1989, plans may be aggregated in order to satisfy section 401 (m) of the Code only if they have the same plan year. (4) For purposes ofdetertnining the Contribution Percentage of a Participant who is a five percent (5%) owner or one ( 1 ) of the ten (10) most highly paid Highly Compensated Employees, the Contribution Percentage Amounts and Earn- ~ngs of such Participant shall include the Contribution Percentage Amounts and Earnings for the Plan Year of family members (as defined in section 414(q)(6) of the Code). Family members, with respect to Highly Compensated Employ- ees, shall be disreg~ 'ded as separate Employees in determining the Contribu- tion Percentage both for Participants who are Non-highly Compensated Em- plo?es and for Participants who are Highly (~ompensated Employees. MPP 1 2/23/94 001-94 (5) For purposes of applying the ACP test, Employee Contributions are consid- ered to have been made in the Plan Year in which contributed to the Trust. Matching Contributions will be considered made for a Plan Year if made no later than the end of the twelve (12) month period beginning on the day after the close uf the Plan Year. (6)The Employer shall maintain records sufficient to demonstrate satisfaction of the ACP test. (7) The determination and treatment of the Contribution Percentage of any Par- ticipant shall satisfy such other requirements as may be prescribed by the Sec- retary of the Treasury. 5.03 Avoidance of Excess Aggregate Contributions. In the event that the Employer deter- mines that the Plan may be unable to meet the ACP test, and notxvithstanding anything tu the contrary herein, the Employer may reject any Participant election under Article IV or reduce the amount of contributions elected, even if such election has already be- come effective, to assure that contributions on behalf of Highly Compensated Employees meet the limitations of such test. Any rejections of elections and any reduction of amounts elected shall be made by the Employer on a reasonable and nondiscriminatory basis. 5.04 Correction of Excess Aggregate Cuntributions. (a) General Rule. In the event that the Plan does m)t meet the ACP test, and notwith- sta~ding any other provisions of the Plan, Excess Aggregate Contributions, plus any income and minus any loss allocable thereto, shall be forfeited, if furfeitable, or if not furfeitable, distributed no later than the last day of each Plan Year to Partici- pants to whose Accounts such Excess Aggregate Contributions were allocated for the preceding Plan Year. Excess Aggregate Contributions shall be allocated to Par- ticipants who are subject to the family member aggregation rules in proportion to the Employee and Matching Contributions (or amounts treated as Matching Con- tributions) of each family member that is combined to determine the combined ACE If such Excess Aggregate Contributions are distributed more than two and one-half (2-1/2) months after the last day of the Plan Year in which such excess amounts arose, a ten percent (10%) excise tax will be imposed on the Employer maintaining the Plan with respect to those amounts. Excess Aggregate Contribu- tions shall be treated as Annual Additions, as defined under Section 6.05. (b) Determination of Allocable Income or Loss. Excess Aggregate Contributions shall be adjusted for any income or loss up to the date of distribution. The income or loss allocable to Excess Aggregate Contributions is the sum of: ( 1 ) income or loss allocable to ti~e Participant's Employee Contribution Account, Employer Contribution count (if the Employer Contributions are Matching Contributions) for the Plan Year multiplied by a fraction, tt~e numerator of wt~ich is such Participant's Excess Aggregate Contributions fur the year and the denominator is the Participant's count balance(s) attributable to Contribution Percentage Amounts without regard to any income or loss occurring during such Plan Year; and (2) ten percent (10%) of MPP 12/23/94 001 -94 the amount deternrined under (1) multiplied by the number of whole calendar months between the end of the Plan Year and the date of distribution, counting the month of distribution if distribution occurs after the fifteenth (15th) of such month. (c) Forfeiture or Distribution of Excess Aggregate Contributions. Excess Aggregate Contributions shall be forfeited, if forfeitable, or distributed on a pro-rata basis from the Participant's Employee Contribution Account or Employer Contribution Ac- count (if Employer Contributions are Matching Contributions). Forfeitures of Ex- cess Aggregate Contributions will be applied to reduce Employer Contributions. Definitions. For the purposes of this Article, the folk)wing definitions shall apply: fa) Aggregate Limit. The sum of fi) 125 percent of the greater of the ADP of the Non-highly Compensated Employees under the CODA for the Plan Year or the ACP of Non-highly Compensated E;ntdoyees under the Plan subject to Code sec- tion 401 (m) for the Plan Year beginning with or within the Plan Year of the CODA and (ii) the lesser of 200% or two (2) plus the lesser of such ADP or ACE "Lesser" is substituted for "greater" in fi), above, and "greater" is substituted for "lesser" after "two plus the" in (ii) if it would result in a larger Aggregate Limit. (b) Average Contribution Percentage. The average of the Contribution Percentages of the Eligible Participants in a group. (c) CODA. A cash or deferred arrangement pursuant to section 401(k) of the Code. (d) Contribution Percentage. The ratio (expressed as a percentage) of the Participant's Contribution Percentage Amounts to the Participant's Earnings for the Plan Year (whether or not the Employee was a Participant for the entire Plan Year). (e) Contribution Percentage Amounts. The sum of the Employee Contributions and Matching Contributions made under the Plan on behalf of the Participant for the Plan Year. Such Contribution Percentage Amounts shall not include Matching Contributions that are forfeited either to correct Excess Aggregate Contributions or because the contributions to which they relate are Excess Deferrals, Excess Con- tributions, or Excess Aggregate Contributions. (f) Eligible Participant. Any Employee who is eligible to make an Employee Contribu- tion or to receive a Matching Contribution (including forfeitures). If an Employee Contribution is required as a condition of participation in the Plan, any Employee who would be a Participant in the Plan if such Employee made such a contribution shall be treated as an Eligible Participant on behalf of whom no Employee Contri- butions are made. (g) Ernployee Contribution. Any contribution made to the Plan by or on behalf of a Participant that ~s included in the Participant's gross income in the year in which made and that is maintained under a separate account to which earnings and losses are allocated. MPP 12/23/94 001 -94 (h) Excess Aggregate Contributions. With respect to any Plan Year, the excess of: ( 1 ) The aggregate Contribution Percentage Amounts taken into account ~n com- puting the numerator of the Contribution Percentage actually made on behalf of Highly Compensated Employees for such Plan Year, over (2) The maximmn Contribution Percentage Amounts permitted by the ACP test (determined by reducing contributions made on behalf of Highly Compen- sated Employees in order of their Contribution Percentages beginning with the highest of such percentages). (i) Matching Contribution. An Employer Contribution made to this or any other defined contribution plan on behalf of a Participant on account of an Empk)yee Contribution made by such Participant, or on account of a Participant's elective deferral, under a plan maintained by the Employer. VI. LIMITATION ON ALLOCATIONS 6.01 Participants Only in This Plan. (a) If the Participant does not participate in, and has never participated in another qualified plan or a welfare benefit fund, as defined in section 419(e) of the Code, maintained by the Employer, or an individual medical account, as defined by sec- tion 415(1)(2) of the Code, maintained by the Employer, which provides an An- nual Addition, the amount of Annual Additions which may be credited to ttxc Participant's Account for any Limitation Year will not exceed the lesser of the Maxi- mum Permissible Amount or any other limitation contained in this Plan. If the Employer Contribution that would otherwise be contributed or allocated to the Participant's Account would cause the Annual Additions for the Limitation Year to exceed the Maximum Permissible Amount, the amount contributed or allocated will be reduced so that the Annual Additions for the Limitation Year will equal the Maximum Permissible Amount. (b) Prior to determining the Participant's actual Compensation for the Limitation Year, the Employer may determine the Maximum Permissible Amount for a Participant on the basis of a reasonable estimation of the Participant's Compensation for the Limitation Year, uniformly determined for all Participants similarly situated. (c) As soon as is administratively feasible after the end of the Limitation Year, the Maximum Permissible Amount for the Limitation Year will be determined on the basis of the Participant's actual Compensation for the Limitation Year. MPP 12/23/94 ~1~ 001 -94 (d) If, pursuant to Subsection (c) or as a result of the allocation of forfeitures, there is an Excess Amount, the excess will be disposed of as follows: (1) Any Voluntary Participant Contributions, to the extent they would reduce the Excess Amount, will be returned to the Participant; (2) If after the application of paragraph ( 1 ) an Excess Amount still exists, and the Participant is covered by the Plan at the end of the Limitation Year, the Ex- cess Amount in the Participant's Account will be used to reduce Employer Contributions (including any allocation of forfeitures) for such Participant in the next Limitation Year, and each succeeding Limitation Year if necessary; (3) if after the application of paragraph (1) an Excess Amount still exists, and the Participant is not covered by the Plan at the end of the Limitation Year, the Excess Amount will be held unallocated in a suspense account. The suspense account will be applied to reduce future Employer Contributions (including allocation of any forfeitures) for all remaining Participants in the next Limita- tion Year, and each succeeding Limitation Year if necessary; (4) If a suspense account is in existence at any time during a particular Limitation Year, all amounts in the suspense account must be allocated and reallocated to Participants' accounts before any Employer or any Employee contributions may be made to the Plan for that Limitation Year. Excess Amounts in a sus- pense account may not be distributed to Participants or former Participants. 6.02 Participants in More than One Plan. (a) This Section applies if, in addition to this Plan, the Participant is covered under another qualified Regional Prototype defined contribution Plan maintained by the Employer, or a welfare benefit fund, as defined in section 419(e) of the Code, main- tained by the Employer, or an individual medical account, as defined by section 415(1)(2) of the Code, maintained by the Employer, which provides an Annual Addition, during any Limitation Year. The Annual Additions which may be cred- ited to a Participant's Account under this Plan for any such Limitation Year will not exceed the Maximum Permissible Amount reduced by the Annual Additions cred- ited to a Participant's Account under the other plans and welfare benefit funds for the same Limitation Year. If the Annual Additions with respect to the Participant under other defined contribution plans and welfare benefit funds maintained by the Employer are less than the Maximum Permissible Amount and the Employer con- tribution that would otherwise be contributed or allocated to the Participant's Ac- count under this Plan would cause the Annual Additions for the Limitation Year to exceed this limitation, the amount contributed or allocated will be reduced so that the Annual Additions under all such plans and funds for the Limitation Year will equal the Maximum Permissible Amount. If the Annual Additions with respect to the Participant under such other defined contribution plans and welfare benefit funds in the aggregate are equal to or greater than the Maximum Permissible Amount, no amount will be contributed or allocated to the Participant's Account under this Plan for the Limitatiun Year. MPP 12/23/94 001-94 (b) Prior to determining the Participant's actual Compensation for the Limitation Year, the Employer may determine the Maximum Permissible Amount for a Participant in the manner described in Section 6.01 (b). (c) As soon as is administratively feasible after the end of the Limitation Year, the Maximum Permissible Amount for the Limitation Year will be determined on the basis of the Participant's actual Compensation for the Limitation Year. (d) If, pursuant to Subsection (c) or as a result of the allocation of forfeitures, a Participant's Annual Additions under this Plan and such other plans would result in an Excess Amount for a Limitation Year, the Excess Amount will be deemed to consist of the Annual Additions last allocated, except that Annual Additions at- tributable to a welfare benefit fund or individual medical account will be deemed to have been allocated first regardless of the actual allocation date. (e) If an Excess Amount was allocated to a Participant on an allocation date of this Plan which coincides with an allocation date of another plan, the Excess Amount attributed to this Plan will be the product (1) The total Excess Amount allocated as of such date, nmltiplied by (2) The ratio of (i) the Annual Additions allocated to the Participant for the Limitation Year as of such date under this Plan to (ii) the total Annual Addi- tions allocated to the Participant for the Limitation Year as of such date under this and all the other qualified Regional Prototype defined contribution Plans. (f) Any Excess Amount attributed to this Plan will be disposed in the manner de- scribed in Section 6.01(d). 6.03 Participant in Another Defined Contribution Plan. If the Participant is covered under another qualified defined contribution plan maintained by the Employer which is not a Regional Prototype Plan, Annual Additions which may be credited to the Participant's Account under this Plan for any Limitation Year will be limited in accordance with Sec- tion 6.02 as though the other plan xvere a Regional Prototype Plan unless the Employer provides other limitations in the Adoption Agreement. 6.04 Participant in Defined Benefit Plan. If the Employer maintains, or at any time main- tained, a qualified defined benefit plan covering any Participant in this Plan, the sum of the Participant's Defined Benefit Fraction and Defined Contribution Fraction will riot exceed 1.0 in any Limitation Year. The Annual Additions which may be credited to the Participant's Account under this Plan for any Limitation Year will be limited in accordance w~th the Adoption Agreement. MPP 12/23/94 001-94 6.05 Definitions. For the purposes of this Article, the following definitions shall apply: (a) Annual Additions: The sum of the following amounts credited to a Participant's account for the Limitation Year: (1) Employer Contributions; (2) Forfeittlres; (3) Employee contributions; and (4) Allocations under a simplified employee pension. Amounts allocated, after March 31, 1984, to an individual medical account, as defined in section 415(t)(2) of the Code, which is part of a pension or annuity plan maintained by the Employer, are treated as Annual Additions to a defined contribu- tion plan. Also, amounts derived from contributions paid or accrued after Decem- ber 31, 1985, in taxable years ending after such date, which are attributable to post-retirement medical benefits allocated to the separate account of a key Em- ployee, as defined in section 419A(d)(3) of the Code, under a welfare benefit fund, as defined in section 419(e) of the Code, maintained by the Employer, are treated as Annual Additions to a defined contribution plan. For this purpose, any Excess Amount applied under Sections 6.01(d) or 6.02(f) in the Limitation Year to reduce Employer Contributions will be considered Annual Additions for such Limitation Year. (b) Compensation: A Participant's wages, salaries, and fees for professional services and other amounts received (without regard to whether an amount is paid in cash) for personal services actually rendered in the course of employment with the Em- ployer maintaining the Plan to the extent that the amounts are includible in gross income (including, but not limited to, commissions paid salesmen, compensation for services on the basis of a percentage of profits, commissions on insurance premi- ums, tips, bonuses, fringe benefits, and reimbursements or other expense allowances under a nonaccountable plan (as described in Treas. Reg. section 1.62-2(c))), in- cluding earned income of a self-employed individual, and excluding the following: (1) Employer Contributions to a plan of deferred compensation which are not includible in the Employee's gross income for the taxable year in which contrib- uted, or Employer Contributions under a simplified employee pension plan to the extent such contributions are deductible by the Employee, or any distribu- tions from a plan of deferred compensation; (2) Amounts realized from the exercise of a non-qualified stock option, or when restncted stock (or property) held by the Employee either becomes freely trans- ferable or is no longer subject to a substantial risk of forfeiture; MPP 12/23/94 001-94 (3) Amounts realized from the sale, exchange ur other disposition uf stock ac- quired under a qualified stock option; and (4) Other amounts which received special tax benefits, or contributions made by the Employer (whether or not tinder a salary reduction agreement) towards the purchase of an annuity contract described in section 403(b) of the Code (whether or not the amounts are actually excludable from the gross income of the Employee). For any self-employed individual compensation will mean earned income. For purposes of applying the limitations of this Article, Compensation for a Limita- tion Year is the Compensation actually paid or made available during such year. Notwithstanding the preceding sentence, Compensation for a Participant in a fined contribution plan who is permanently and totally disabled (as defined in sec- tion 22(e)(3) of the Code) is the Compensation such Participant would have re- ceived for the Limitation Year if the Participant had been paid at the rate of pensation paid immediately before becoming permanently and totally disabled; such imputed Compensation for the disabled Participant may be taken into account only if the Participant is not a Highly Compensated Employee (as defined in section 414(q) of the Code), and contributions made on behalf of such Participant are nonforfeitable when made. (c) Defined Benefit Fraction: A fraction, the numerator of which is the sum of the Participant's Projected AnnuaI Benefits under all the defined benefit plans (whether or not terminated) maintained by the Employer, and the denominator of which is the lesser of 125 percent of the dollar limitation determined for the Limitation Year tinder sections 415(b) and (d) of the Code or 140 percent of the Highest Average Compensation, including any adjustments under section 415(b) of the Code. Notwithstanding the above, if the Participant was a participant as of the first day of the first Limitation Year beginning after December 31, 1986, in one (1) or more defined benefit plans maintained by the Employer which were in existence on May 6, 1986, the denominator of this fraction will not be less than 125 percent of the stun of the annual benefits under such plans which the Participant had accrued as of the close of the last Limitation Year beginning before January 1, 1957, disregarding any changes in the terms and conditions of the plan after May 5, 1956. The preced- ing sentence applies only if the defined benefit plans individually and in the aggre- gate satisfied the requirements of section 415 of the Code fur all Limitation Yeats beginning before January 1, 1987. (d) Defined Contribution Dollar Limitation: $30,000 or, if greater, one-fourth (1/4) of the defined benefit dollar limitation set forth in section 415(b)( i ) of the Code, as in effect for the Limitation Year. MPP 12/23/94 001-94 (e) Defined Contribution Fraction: A fraction, the numerator of which is the sum of the Annual Additions to the Participant's account under all the defined contribu- tion plans (whether or not terminated) maintained by the Employer for the current and all prior Limitation Years (including the Annual Additions attributable to the Participant's nondeductible Employee contributions to all defined benefit plans, whether or not terminated, maintained by the Employer, and the Annual Addi- tions attributable to all welfare benefit funds, as defined in section 419(e) of the Code, and individual medical accounts as defined in section 415(1)(2) of the Code, maintained by the Employer), and the denominator of which is the sum of the maximum aggregate amounts for the current and all prior Limitation Years of ser- vice with the Employer (regardless of whether a defined contribution plan was main- rained by the Employer). The maximum aggregate amount in any Limitation Year is the lesser of 125 percent of the dollar limitation in effect tinder sections 415 (b) and (d) of the Code in effect under section 415(c)( 1 )fA) of the Code. or thirty-five percent (35%) of the Participant's Compensation for such year. If the Employee was a Participant as of the first day of the first Limitation Year beginning after December 31, 1986, in one (1) or more defined contribution plans maintained by the Employer which were in existence on May 6, 1986, the numera- tor of this fraction will be adjusted if the sum of this fraction and the Defined Ben- efit Fraction would otherwise exceed 1.0 under the terms of this Plan. Under the adjustment, an amount equal to the product of (1) the excess of the sum of the fractions over 1.0 nmltiplied by (2) the denominator of this fraction, will be perma. nently subtracted from the numerator of this fraction. The adjustment is calculated using the fractions as they would be computed as of the end of the last Limitation Year beginning before January 1, 1987, and disregarding any changes in the terms and conditions of the plan made after May 5, 1986, but using the section 415 of the Code limitation applicable to the first Limitation Year beginning on or after January 1, 1987. The Annual Addition for any Limitation Year beginning before January 1, 1987, shall not be recomputed to treat all Employee contributions as Annual Additions. (f) Employer: The Employer that adopts this Plan, and all members of a controlled group of corporations (as defined in section 414(b) of the Code as modified by section 415(h) of the Code), all commonly controlled trades or businesses (as de- fined in section 414(c) of the Code as modified by section 415(h) of the Code) or affiliated service groups (as defined in section 414(m) of the Code) of which the adopting Employer is a part, and any other entity required to be aggregated with the Employer pursuant to regulations under section 414(o) of the Code. (g) Excess Amount: The excess of the Participant's Annual Additions for the Limita- tion Year over the Maxunum Permissible Amount. (h) Highest Average Compensation: The average Compensation for the three (3) con- secutive years of service with the Employer that produce the highest average. A year of service with the Employer is the twelve (12) consecutive month period de- fined as the Limitation Year in the Adoption Agreement. MPP 12/23/94 001 ~94 (i) Limitation Year: A calendar year, or the twelve (12) co~xsecutive month period elected by the Employer in the Adoption Agreement. All qualified plans maintained by the Employer must use the same Limitation Year. If the Limitation Year is amended to a different twelve (12) consecutive month period, tb, new Limitation Year must begin on a date within the Limitation Year in which the amendment is made. (j) Regional Prototype Plan: A plan the form of which is the subject of a favorable opinion letter from the Internal Revenue Service. (k) Maximum Permissible Amount: The maximum Annual Addition that may be con- tributed or allocated to a Participant's Account under the Plan for any Limitation Year shall not exceed the lesser of: (1) The Defined Contribution Dollar Limitation, or (2) Twenty-five percent (25%) of the Participant's Compensation for the Limitation Year. The Compensation limitation referred to in (2) shall not apply to any contribution for medical benefits (within the meaning of section 401(h) or section 419A(f)(2) of the Code) which is otherwise treated as an Annual Addition under section 415(1)(i) or 419A(d)(2) of the Code. If a short Limitation Year is created because of an amendment changing the Limita- tion Year to a different twelve (12) consecutive month period, the Maximum Per- missible Amount will not exceed the Defined Contribution Dollar Limitation mul- tiplied by the following fraction: Number of months in the short Limitation Year 12 (1) Projected Annual Benefit: The annual retirement benefit (adjusted to an actuari- ally equivalent straight life annuity if such benefit is expressed in a form other than a straight life annuity or qualified joint and survivor annuity) to which the Partici- pant would be entitled under the terms of the plan assuming: ( 1 ) The Participant will continue employment until Normal Retirement Age under the plan (or current age, if later), and (2) The Participant's Compensation for the current Limitation Year and all other relevant factors used to determine benefits under the plan will remain con- stant for all future Limitation Years. MPP 12/23/94 VII. TRUST AND [NVESTMENT OF ACCOUNTS 7.01 Trust. A Trust is hereby created to hold all of the assets of the Plan for the exclusive benefit of Participants and Beneficiaries, except that expenses and taxes may be paid from the Trust as provided in Section 7.03. The trustee shall be the Employer or such other person which agrees to act in that capacity hereunder. 7.02 Investment Powers. The trustee or the Plan Administrator, acting as agent for the trustee, shall have the powers listed in this Section with respect to investment of Trust assets, except to the extent that the investment of Trust assets is controlled by Participants, pursuant to Section 14.03. (a) To invest and reinvest the Trust without distinction between principal and income in any form of tangible or intangible property, real, personal, or mixed, and wher- ever situated, including, but not by ~vay of limitation, common or preferred stocks, shares of regulated investment companies and other mutual funds, bonds, loans, notes, debentures, mortgages, certificates of deposit, interest, or participation, equip- ment trust certificates, commercial paper including but not limited to participation in pooled commercial paper accounts, contracts with insurance companies includ- ing but not limited to insurance, individual or group annuity, deposit administra- tion, and guaranteed interest contracts, deposits at reasonable rates of interest at banking institutions including but not limited to savings accounts and certificates of deposit, and other forms of securities or investments of any kind, class, or charac- ter whatsoever and representing interests in any form of enterprise, wherever it may be located, organized or operated within or without the United States of America, whether such investments are income producing or not, without being limited in any respect by statute or court rule or decision of any jurisdiction now or hereafter in force purporting to limit or otherwise affect such investments. Assets of the Trust may be invested in securities or new ventures that involve a higher degree of risk than investments that have demonstrated their investment performance over an extended period of time. (b) To invest and reinvest all or any part of the assets of the Trust in any common, collective or commingled trust fund that is ~naintained by a bank or other institu- tion and that is available to Employee plans qualified under section 401 of the Code, or any successor provisions thereto, and during the period of time that an invest- ment through any such medium shall exist, to the extent of participation of the Plan, the declaration of trust of such common, collective, or commingled trust fund shall constitute a part of this Plan. (c) To invest and reinvest all or any part of the assets of the Trust in any group annuity, deposit administration or guaranteed interest contract issued by an insurance corn- pa,ay or ou,er financial instituuon on a commingled or collective basis with the assets of any other plan or trust qualified under section 401(a) of the Code or any other plan described in section 401(a)(24) of the Code, and such contract may be held or issued in the name of the Plan Administrator, or such custodian as the Plan Administrator may appoint, as agent and nominee for the Employer. During the MPP12/23/94 001 -94 period that an investment through any such contract shall exist, to the extent of participation of the Plan, the terms and conditions of such contract sha[i constitute a part of the Plan. (d) To purchase part interests in real property or in mortgages on real property, wherever such real property may be situated, and to delegate to a property manager or the holder or holders of a majority interest in such real property or mortgage on real property the management and operation of any part interest in such real property or mortgages. (e) To hold cash awaiting investment and to keep such portion of the Trust in cash or cash balances, without liability for interest, in such amounts as may from time to time be deemed to be reasonable and necessary to meet obligations under the Plan or otherwise to be in the best interests of the Plan. (f) To retain, manage, operate, administer, divide, subdivide, partition, mortgage, pledge, improve, alter, demolish, remodel, repair, and develop in any manner any property, or any part of or partial interest in any property, real or personal, held in the Trust, to [ease such property for any period of time, and to grant options to sell, exchange, lease, or otherwise dispose of any such property, without regard to restrictions appli- cable to fiduciaries or others and without the approval of any court. (g) To sell for cash or credit, redeem, exchange for other property, convey, transfer, or otherwise dispose of any property held in the Trust in any manner and at any time, by private contract or at public auction or otherxvise, and no other person shall be bound to see to the application of the purchase money or to inquire into the valid- ity, expediency, or propriety of any such sale or other disposition. (h) To enter into contracts for or to make commitments either alone or in company with others to purchase or sell at any future date any property acquired for the Trust. (i) To vote or to refrain from voting any stocks, bonds, or other securities held in the Trust, to exercise any other right appurtenant to any securities or other property held in the Trust, to give general or special proxies or powers of attorney with or without power of substitution with respect to such securities and other property, to exercise any conversion privileges, subscription rights, or other options or privileges with respect to such securities and other property and make any payments inciden- tal thereto, and generally to exercise, personally or by general or limited power of attorney, any of the powers of an owner with respect to stocks, bonds, securities, or other property held in the Trust at any time. (j) To oppose or to consent to and participate in any organization, reorganization, con- solidat~on, merger, combination, ~eadjustment of finances, or similar arrangement with respect to any corporation, company, or association, any of the securities of which are held in the Trust, to do any act with reference thereto, including the exercise of options, the making of agreements or subscriptions and the payment of expenses, assessments, or subscriptions that may be deemed necessary or advisable in connection therewith, and to accept, hold, and retain any securities or other property that may be so acquired. MPP 12/23/94 001-94 (k) To deposit any property held in the Trust with any protective, reorganization, or similar committee, and to delegate discretionary power thereto and to pay and agree to pay part of its expenses and compensation and any assess~nents levied with re- spect to any such property so deposited. (1) Tu hold, to authorize the holding of, and to register any investment to the Trust in the name of the Plan, the Employer, or any nominee or agent of any of the forego- ing, including the Plan Administrator, or in bearer form, to deposit or arrange for the deposit of securities in a qualified central depository even though, when so de- posited, such securities may be merged and held in bulk in the name of the nomi- nee of such depository with other securities deposited therein by any other person, and to organize corporations or trusts under the laws of any jurisdiction for the purpose of acquiring or holding title to any property for the Trust, all with or with- out the addition of words or other action to indicate that property is held in a fiduciary or representative capacity but the books and records of the Plan shall at all times show that all such investments are part of the Trust. (m) Upon such terms as may be deemed advisable by the Employer or the Plan Admin- istrator, as the case may be, for the protection of the interests of the Plan or for the preservation of the value of an investment, to exercise and enforce by suit for legal or equitable remedies or by other action, or to waive any right or claim on behalf of the Plan or any default in any obligation owing to the Plan, to renew, extend the time for payment of, agree to a reduction in the rate of interest on, or agree to any other modification or change in the terms of any obligation owing to the Plan, to settle, compromise, adjust, or submit to arbitration any claim or right in favor of or against the Plan, to exercise and enforce any and all rights of foreclosure, bid for property in foreclosure, and take a deed in lieu of foreclosure with or without paying consideration therefor, to commence or defend suits or other legal proceedings when- ever any interest of the Plan requires it, and to represent the Plan in all suits or legal proceedings in any court of law or equity or before any body or tribunal. (n) To employ suitable consultants, depositones, agents, and legal counsel on behalf of the Plan. (o) To make, execute, acknowledge, and deliver any and all deeds, leases, mortgages, conveyances, contracts, waivers, releases, or other instruments in writing necessary or proper for the accomplishment of any of the foregoing powers. (p) To open and maintain any bank account or accounts in the name of the Plan, the Employer, or any nominee or agent of the foregoing, including the Plan Adminis- trator, in any bank or banks. (q) To do any and all other acts that may be deemed necessary to carry out any of the powers set forth herein. MPP '12/23/94 001-94 7.03 Taxes and Expenses. All taxes of any and all kinds whatsoever that may be levied or assessed under existing or future laws upon, or in respect to the Trust, or the income thereof, and all commissions or acquisitions or dispositions of securities and similar ex- penses of investment and reinvestment of the Trust, shall be paid from the Trust. Such reasonable compensation of the Plan Administrator, as may be agreed upon from time to time by the Employer and the Plan Administrator, and reimbursement for reasonable expenses incurred by the Plan Administrator in performance of its duties hereunder (in- cluding but not limited to fees for legal, accounting, investment and custodial services) shall also be paid from the Trust. However, no person who is a fiduciary within the meaning of section 3(21)(A) of ERISA and regulations promulgated thereunder, and who receives full-time pay from the Employer may receive compensation from the Trust, except for expenses properly and actually incurred. 7.04 Payment of Benefits. The payment of benefits from the Trust in accordance with the terms of the Plan may be made by the Plan Administrator, or by any custodian or other person so authorized by the Employer to make such disbursement. The Plan Administra- tor, custodian or other person shall not be liable with respect to any distribution of Trust assets made at the direction of the Employer. 7.05 Investment Funds. In accordance with uniform and nondiscriminatory rules established by the Employer and the Plan Administrator, the Participant may direct his/her Accounts to be invested in one (1) or more investment funds available under the Plan; provided, however, that the Participant's investment directions shall not violate any investment restrictions established by the Employer and shall not include any investment in col- lectibles, as defined in section 408(m) of the Code. 7.06 Valuation of Accounts. As of each Accounting Date, the Plan assets held in each invest- ment fund offered shall be valued at fair market value and the investment income and gains or losses for each fund shall be determined. Such investment income and gains or losses shall be allocated proportionately among all Account balances on a fund-by-fund basis. The allocation shall be in the proportion that each such Account balance as of the immediately preceding Accounting Date bears to the total of all such Account balances as of that Accounting Date. For purposes of this Article, all Account balances include the Account balances of all Participants and Beneficiaries. 7.07 Participant Loan Accounts. Participant Loan Accounts shall be invested in accordance with Section 14.03 of the Plan. Such Accounts shall not share in any investment income and gains or losses of the investment funds described in Section 7.05. VIII. VESTING 801 Vesting Schedule. The portion of a Participant's Account attributable to Mandatory Participant Contributions, Matched Participant Contributions, or Voluntary Participant Contributions, and the earnings thereon, sha~l be at all times nonforfeitable by the Par- ticipant. A Participant shall have a Nonforfeitable Interest in the percentage of his/her Employer Contribution Account established under Section 4.01 determined pursuant to the schedule elected by the Employer in the Adoption Agreement. MPP 12/23/94 001-94 8.02 Crediting Periods of Service. Except as provided in Section 8.03, all of an Employee's Periods of Service with the Employer are counted to determine the nonforfeitable per- centage in the Employee's Account balance derived from Employer Contributions. If the Employer maintains the plan of a predecessor employer, service with such employer will be treated as service for the Employer. For purposes of determining years of service and Breaks in Service for purposes of comput- ing a Participant's nonforfeitable right to the Account balance derived from Employer Contributions, the twelve (12) consecutive month period will commence on the date the Employee first performs an hour of service and each subsequent twelve (12) consecutive month period will commence on the anniversary of such date. 8.03 Service After Break in Service. In the case of a Participant who has a Break in Service of at least five (5) years, all Periods of Service after such Breaks in Service will be disre- garded for the purpose of determining the nonforfeitable percentage of the Employer-derived Account balance that accrued before such Break, but both pre-Break and post-Break service will count for the purposes of vesting the Employer-derived Ac- count balance that accrues after such Break. Both Accounts will share in the earnings and losses of the fund. In the case of a Participant who does not have a Break in Service of at least five (5) years, both the pre-Break and post-Break service will count in vesting both the pre-Break and post-Break Employer-derived Account balance. In the case of a Participant who does not have any nonforfeitable right to the Account balance derived from Employer Contributions, years of service before a period of con- secutive one (1) year Breaks in Service will not be taken into account in computing eligibility service if the number of consecutive one (1) year Breaks in Service in such period equals or exceeds the greater of five (5) or the aggregate number of years of service. Such aggregate number of years of service will not include any years of service disregarded under the preceding sentence by reason of prior Breaks in Service. If a Participant's years of service are disregarded pursuant to the preceding paragraph, such Participant will be treated as a new Employee for eligibility purposes. Ifa Participant's years of service may not be disregarded pursuant to the preceding paragraph, such Partici- pant shall continue to participate in the Plan, or, if terminated, shall participate immedi- ately upon reemployment. 8.04 Vesting Upon Normal Retirement Age. Notwithstanding Section 8.01 of the Plan, a Participant shall have a Nonforfeitable Interest in his/her entire Employer Contribution Account, to the extent that the balance of such Account has not previously been for- feited pursuant to Section 8.06 of the Plan, if he/she is employed on or after his/her Normal Retie:em. ~t Age. 8.05 Vesting Upon Death or Disability. Notwithstanding Section 8.01 of the Plan, in the event of Disability or death, a Participant or his/her Beneficiary shall have a Nonforfeitable Interest in his/her entire Employer Contribution Account, to the extent that the balance of such Account has not previously been forfeited pursuant to Section 8.06 of the Plan. MPP 12/23/94 00! -94 8.06 Forfeitures. Except as provided in Sections 8.04 and 8.05 of the Plan or as otherwise provided in this Section 8.06, a Participant who separates from service prior to obtaining full vesting shall forfeit that percentage of his/her Employer Contribution Account bal- ance which has not vested as of the date such Participant incurs a Break in Service of five ~5) consecutive years or, if earlier, the date such Participant re elves, or is deemed under the provisions of Section 10.04 to have received, distribution of the entire Nonforfeitable Interest in his/her Employer Contribution Account. If a Participant receives a voluntary distribution of less than the entire vested portion of his/her Employer Contribution Ac- count, the part of the nonvested portion that will be treated as a forfeiture is the total nonvested portion multiplied by a fraction, the numerator of which is the amount of the distribution attributable to Employer Contributions and the denominator of which is the total value of the vested Employer Contribution Account. If a Participant receives distribution of less than the entire vested portion of his/her Em- ployer Contribution Account prior to January 1, 1994, the preceding sentence shall not apply to such Participant, and the following rule shall apply to those distributions (as described in the rule) from his/her Account on or after January 1, 1994. Ifa distribution from his/her Employer Contribution Account is made at a tic'ne when the Participant has less than a one hundred percent (100%) Nonforfeitable Interest in such Account, and the Participant may increase the percentage of his/her Nonforfeitable Interest in such Account (i.e., by a return to Employee status in a Covered Employment Classification), then at any relevant time the Participant's vested portion of such account is equal to an amount (X) determined by the formula: X-P(AB+(RxD))-(RxD). For purposes of ap- plying the formula: P is the percentage of his/her Nonforfeitable Interest in such Ac- count at the relevant time; AB is the account balance of such Account at the relevant time; D is the amount of the distribution; R is the ratio of the account balance of such Account at the relevant time to the account balance of such Account after distribution; and the relevant time is the time at which, under the Plan, the percentage of his/her Nonforfeitable Interest in such Account cannot increase (i.e., after a Break in Service). No forfeiture will occur solely as a result of a Participant's withdrawal of Employee Contributions. Forfeitures shall be allocated in the manner described in Section 4.02. 8.07 Reinstatement of Forfeitures. If the Participant returns to the employment of the Em- ployer before incurring a Break in Service of five (5) consecutive years, any amounts forfeited pursuant to Section 8.06 shall be reinstated to the Participant's Employer Con- tribution Account on the date of repayment by the Participant of the amount distributed to such Participant from his/her Employer Contribution Account; provided, however, that if such Participant forfeited his/her Account balance by reason of a deemed distribu- tion, pursuant to Section 10.04, such amounts shall be automatically restored upon the reem- ployment of such Participant. Such repayment must be made before the earlier of five (5) years after the first date on which the Participant is subsequently reemployed by the Em- ployer, or the date the Partictpant incurs a Break in Service of five (5) consecutive years. MPP 12/23/94 001 -94 IX. BENEFITS CLAIM 9.01 Claim of Benefits. A Participant, Employee or Beneficiary shall notify the Plan Admin- istrator in writing of a claim of benefits under the Plan. The Plan Administrator shall take such steps as may be necessary to facilitate the payment of such benefits to the Participant, Employee or Beneficiary. 9.02 Appeal Procedure. If any claim for benefits is denied by the Plan Administrator, the Plan Administrator shall notify the claimant in writing of such denial, setting forth the spe- cific reasons and citing reference to specific provisions of the Plan upon which the denial is based. An appeal period of sixty (60) days after receipt of the notification of denial shall be granted, and said notification shall advise the claimant of the appeal procedure. The claimant shall file the appeal with the Plan Administrator, whose decision shall be final, to the extent provided by Section 16.07. X. COMMENCEMENT OF BENEFITS 10.01 Normal and Elective Commencement of Benefits. Unless the Participant elects other- wise, distribution of benefits will begin no later than the sixtieth (60th) day after the latest of the close of the Plan Year in which: (a) The Participant attains age sixty-five (65) (or Normal Retirement Age, if earlier); (b) The Participant terminates service with the Employer; or (c) Occurs the tenth (10th) anniversary of the year in which the Participant com- menced participation in the Plan. Notwithstanding the foregoing, the failure of a Participant and the Participant's Spouse to consent to a distribution while a benefit is immediately distributable, xvithin the mean- lng of section 10.02 of the Plan, shall be deemed to be an election to defer commence- ment of payment of any benefit sufficient to satisfy this sectkm. A Participant who retires, becomes Disabled or separates from service for any tither rea- son may elect by written notice to the Plan Administrator to have the distribution of benefits commence on a date earlier or later than that described in this Section 10.01, provided that such earlier distribution complies with Section 10.02. Such election must be made in writing during the ninety (90) day period ending on the date as of which benefit payments are to commence. A Participant's election shall be revocable and may be amended by the Participant. i0.02 Restrictions on immediate Distributions. Notwithstanding anytlaing to the contrary in Section I0.01 of the Plan, if the value of a Participant's vested Account balance exceeds (or at any time of any prior distribution exceeded) $3,500, and the Account balance is immediately distributable, the Participant and the Participant's Spouse (or where either has died, the survivor) must consent to any distribution of such Account balance. The MPP 12/23/94 001 -94 consent of the Participant and the Participant's Spouse shall be obtained in writing dur- ing the ninety (90) day period ending on the date as of which benefit payments are to Comlnence. The Plan Administrator shall notify the Participant and the Participant's Spouse of the right to defer any distribution until the Participant's Account balance is no longer imme- diately distributable. Such notification shall include a general description of the material features, and an explanation of the relative values of, the optional forms of benefit avail- able under the Plan in a manner that would satisfy section 417(a)(3) of the Code, and shall be provided no less than thirty (30) and no more than ninety (90) days before the date as of which benefit payments are to commence. However, distribution may com- mence [ess than thirty (30) days after the notice described in the preceding sentence is given, provided the distribution is one to which sections 401 fa)( 11 ) and 417 of the Code do not apply, the Plan Administrator clearly informs the Participant that the Participant has a right to a period of at least thirty (30) days after receiving the notice to consider the decision of whether or not to elect a distribution (and, if applicable, a particular distribution option), and the Participant, after receiving the notice, affirmatively elects a distribution. Notwithstanding the foregoing, only the Participant need consent to the commence- ment of a distribution in the form of the Qualified Joint and Survivor Annuity while the Account balance is immediately distributable. (Furthermore, if payment in the form of a Qualified Joint and Survivor Annuity is not required with respect to the Participant pur- suant to section 13.02 of the Plan, only the Participant need consent to the distribution of an Account balance that is immediately distributable.) Neither the consent of the Participant nor the Participant's Spouse shall be required for any form of distribution to the extent that a distribution is required to satisfy section 401(a)(9) or 415 of the Code. In addition, upon termination of this Plan if the Plan does not offbr an annuity option (purchased from a commercial provider) and if the Employer or any entity within the same controlled group as the Employer does not maintain another defined contribution plan, (other than an employee stock ownership plan as defined in section 4975(e)(7) of the Code), the Participant's Account balance will, without the Participant's consent, be distributed to the Participant. However, if any entity within the same controlled group as the Employer maintains another defined contribution plan (other than an employee stock ownership plan as defined in section 4975(e)(7) of the Code) then the Participant's Ac- count balance will be transferred, without the Participant's consent to the other plan if the Participant does not consent to an immediate distribution. An Account balance is immediately distributable if any part of the Account balance could be distributed to the Participant (or Surviving Spouse) before the Participant at- tains or would have attained (if not deceased) the later of Normal Retirement Age or age sixty-two (62)~ For purposes of determining the applicability of the foregoing consent requirements to distributions made before the first day of the first plan year beginning after December 3 i, 1988, the Participant's vested Account balance shall not include amounts attributable to accumulated deductible employee contributions within the meaning of section 72(o)(5)(B) of the Code. MPP 12/23/94 ~1~1 001-94 10.03 Transfer to Another Plan. (a) If a Participant terminates employment and becomes entitled to receive a distribu- tion under the Plan and becomes employed with another employer, the Plan Ad- ministrator shall, at the written election of such Participant, transfer all of such Participant's Nonforfeitable interest in his/her Account, to the maximum extent permitted under the Code, to the new employer's plan, provided that the new em- ployer certifies to the Plan Administrator that its plan provides for the acceptance of such a transfer. For purposes of this Plan, any such transfer shall not be consid- ered a distribution to the Participant subject to spousal consent as described in Sec- tion 10.02 and Article XIII. (b) If a Participant becomes eligible to participate in another plan maintained by the Employer that is qualified under section 401(a) of the Code, the Plan Administra- tor shall, at the written election of sucla Participant, transfer all or part of such Participant's Account to such plan, provided the plan administrator for such plan certifies to the Plan Administrator that its plan provides for the acceptance of such a transfer. For purposes of this Plan, any such transfer shall not be considered a distribution to the Participant subject to spousal consent as described in Section 10.02 and Article XIII. (c) This Subsection applies to distributions made on or after January 1, 1993. Notwith- standing any provision of the Plan to the contrary that would otherwise limit a Distributee's election under this Section, a Distributee may elect, at the time and in the manner prescribed by the Plan Administrator, to have any portion of an Eligible Rollover Distribution paid directly to an Eligible Retirement Plan specified by the Distributee in a Direct Rollover. For purposes of this Plan, any such Eligible Rollover Distribution shall be considered a distribution to the Participant subject to spousal consent as described in Section 10.02 and Article XIII. (d) Definitions. For the purposes of Subsection (c), the following definitions shall apply: (I) Eligible Rollover Distribution. Any distribution of all or any portion of the balance to the credit of the Distributee, except that an Eligible Rollover Dis- tribution does not include: any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life or life expectancy of the Distributee or the joint lives or joint life expectancies of the Distributee and the Distributee's designated beneficiary, or for a speci- fied period of ten years or more; any distribution to the extent such distribu- tion is required under section 401 (a)(9) of the Code; the portion of any distri- bution that is not includible in gross income; and any other distribution(s) that is reasonably expected to total less than $200 during a year. (2) Eligible Retirement Plan. An individual retirement account described in sec- t~on 408(a) of the Code, an individual retirement annuity described in sec- tion 408(b) of the Code, an annuity plan described in section 403(a) of the Code, or a qualified trust described in section 401 (a) of the Code, that accepts MPP 12/23/94 00] -94 the Distributee's Eligible Rollover Distribution. However, in the case of an Eligible Rollover Distribution to the Surviving Spouse, an Eligible Retirement Plan is an individual retirement account or individual retirement annuity. (3) Distributee. Participant; in addition, the Participant's surviving spouse and the Participant's spouse who is the alternate payee under a qualified domestic relations order, as defined in section 414(p) of the Code, are Distributees with regard to the interest of the spouse or former spouse. (4) Direct Rollover. A payment by the Plan to the Eligible Retirement Plan speci- fied by the Distributee. 10.04 De Minimis Accounts. Notwithstanding the foregoing provisions of this Article, if a Participant terminates service, and the value of his/her Nonforfeitable Interest in his/her Account is not greater than $3,500, the Participant shall be paid his/her benefits as soon as practicable after such termination, but, in no event, later than the second Plan Year following the Plan Year in which the Participant terminated employment. For purposes of this Section, if a Participant's Nonforfeitable Interest in his/her Account is zero, the Participant shall be deemed to have received a distribution of such Nonforfeitable Inter- est in his/her Account. A Participant's Nonforfeitable Interest in his/her Account shall not include accumulated Deductible Employee Contributions within the meaning of Section 72(o)(5)(B) of the Code for Plan Years beginning prior to January 1, 1989. 10.05 Withdrawal of Voluntary Contributions. A Participant may make a written election, or if married, a Qualified Election, to withdraw a part of or the full amount of his/her Volun- tary Contribution Account. Such withdrawals may be made at any time, provided that no more than two (2) such withdrawals may be made during any calendar year. No forfeiture will occur solely as the result of any such withdrawal. 10.06 Withdrawal of Deductible Employee Contributions. A Participant may make a written election, or if married, a Qualified Election, to withdraw a part of or the full amount of his/her Deductible Employee Contribution Account. Such withdrawals may be made at any time, provided that no more than two (2) such withdrawals may be made during any calendar year. No forfeiture will occur solely as the result of any such withdrawal. I0.07 Latest Commencement of Benefits. Notwithstanding anything to the contrary in this Article, benefits shall begin no later than the Participant's Required Beginning Date, as defined under Section l 1.06, or as otherwise provided in Section 11.05. MPP 12/23/94 001-94 XI. DISTRIBUTION REQUIREMENTS 11.01 General Rules. (a) Subject to the provisions of Article XIII, the requirements of this Article shall ap- ply to any distribution of a Participant's interest and will take precedence over any inconsistent provisions of this Plan. Unless otherwise specified, the provisions of this Article apply to calendar years beginning after December 31, 1984. (b) All distributions required under this Article shall be determined and made in accor- dance with the proposed regulations under section 401(a)(9) of the Code, includ- ing the minimum distribution incidental benefit requirement of section 1.401 (a)(9)-Z of the proposed regulations. 11.02 Required Beginning Date. The entire Nonforfeitable Interest of a Participant must be dis- tributed or begin to be distributed no later than the Participant's Required Beginning Date. 11.03 Limits on Distribution Periods. As of the first Distribution Calendar Year, distributions, if not made in a single-sum, may only be made over one of the following periods (or a combination thereof): (a) The life of the Participant, (b) The life of the Participant and a Designated Beneficiary, (c) A period certain not extending beyond the Life Expectancy of the Participant, or (d) A period certain not extending beyond the Joint and Last Survivor Expectancy of the Participant and a Designated Beneficiary. 11.04 Determination of Amount to Be Distributed Each Year. If the Participant's Nonforfeitable Interest is to be distributed in other than a single sum, the following minimum distribu- tion rules shall apply on or after the Required Beginning Date: (a) Individual Account. (1) If a Participant's Benefit is to be distributed over (i) a period not extending beyond the Life Expectancy of the Participant or the Joint Life and Last Sur- vivor Expectancy of the Participant and the Participant's Designated Benefi- ciary, or (ii) a period not extending beyond the Life Expectancy of the Desig- nated Beneficiary, the amount required to be distributed for each calendar year, beginning with distributions for the first Distribution Calendar Year, must at least equal the quotient obtained by dividing the Participant's Benefit by the Applicable Life Expectancy. MPP 12/23/94 001-94 (2) For calendar years beginning before January 1, 1989, if the Participant's spouse is not the Designated Beneficiary, the method of distribution selected must assure that at least fifty percent (50%) of the present value of the amount available for distribution is paid within the Life Expectancy of the Participant. (3) For calendar years beginning after December 31, 1988, the amount to be dis- tributed each year, beginning with distributions for the first Distribution Cal- endar Year shall not be less than the quotient obtained by dividing the Participant's Benefit by the lesser of fi) the Applical~le Life Expectancy, or (ii) if the Participant's spouse is not the Designated Beneficiary, the applicable divisor determined from the table set forth in Q&A-4 of section 1.401 (a)(9)-2 of the proposed regulations. Distributions after the death of the Participant shall be distributed using the Applicable Life Expectancy in Subsection ( 1 ) as the relevant divisor without regard to Proposed Regulations section 1.401 (a)(9)-2. (4) The minimum distribution required for the Participant's first Distribution Calendar Year must be made on or before the Participant's Required Begin- ning Date. The minimum distribution for other calendar years, including the minimum distribution for the Distribution Calendar Year in which the Employee's required beginning date occurs, must be made on or before De- cember 31 of that Distribution Calendar Year. (b) Other forms. If the Participant's Benefit is distributed in the form of an annuity purchased from an insurance company, distributions thereunder shall be made in accordance with the requirements of section 401(a)(9) of the Code and the pro- posed regulations thereunder. 11.05 Death Distribution Provisions. Upon the death of the Participant, the following distribu- tion provisions shall take efi~ct: fa) If the Participant dies after distribution of his/her interest has commenced, the re- maining portion of such interest will continue to be distributed at least as rapidly as under the method of distribution being used prior to the Participant's deat}x. (b) If the Participant dies before distribution of his/her interest commences, the Participant's entire interest will be distributed no later than December 31 of the calendar year containing the fifth (5th) anniversary of the Participant's death ex- cept to the extent that an election is made to receive distributions in accordanf, e ~vith (1) or (2) below: (1) If any portion of the Participant's interest is payable to a Designated Benefi- ciary, distributions may be made over the life or over a period certain not greater than the Life Expectancy of the Designated Beneficiary commencing on or before December 31 of tl~e calendar year immediately following the calendar year in which the Participant died; MPP 12/23/94 001 -94 (2) If the Designated Beneficiary is the Participant's surviving spouse, the date distributions are required to begin in accordance with Subsection (1) shall not be earlier than the later of fi) December 31 of the calendar year immedi- ately following the calendar year in which the Participant died, and (ii) De- cember 31 of the calendar year in which the Participant would have attained age seventy and one-half (70-1/2). If the Participant has not made an election pursuant to this Subsectio~ by the time of his/her death, the Participant's Designated Beneficiary must elect the method of distribution no later than the earlier of fi) December 31 of the calendar year in which distributions would be required to begin under this Section, or (ii) December 31 of the calendar year which contains the fifth (5th) anniversary of the date of death of the Participant. If the Participant has no Designated Beneficiary, or if the Designated Beneficiary does not elect a method of distribution, distribution of the Participant's entire interest must be completed by December 31 of the calendar year containing the fifth (5th) anniversary of the Participant's death. (c) For purposes of Subsection (b), if the surviving spouse dies after the Participant, but before payments to such spouse begin, the provisions of Subsection (b), with the exception of paragraph (2) therein, shall be applied as if the surviving spouse were the Participant. (d) For purposes of this Section, any amount paid to a child of the Participant will be treated as if it had been paid to the surviving spouse if the amount becomes payable to the surviving spouse when the child reaches the age of majority. (e) For the purposes of this Section, distribution of a Participant's interest is considered to begin on the Participant's Required Beginning Date (or, if Subsection (c) is ap- plicable, the date distribution is required to begin to the surviving spouse pursuant to Subsection (b)). If distribution in the form of an annuity irrevocably commences to tt, e participant before the Required Beginning Date, the date distribution is con- sidered to begin is the date distribution actually commences. .06 Definitions. For the purposes of this Section, the following definitions shall apply: fa) Applicable Life Expectancy. The Life Expectancy (or Joint and Last Survivor Ex- pectancy) calculated using the attained age of the Participant (or Designated Ben- eficiary) as of the Participant's (or Designated Beneficiary's) birthday in the applicable calendar year reduced by one ( 1 ) for each calendar year which has elapsed since the date Life Expectancy was first calculated. If Life Expectancy is being recalculated, the Applicable Life Expectancy shall be the Life Expectancy as so recalculated. The applicable calendar year shall be the first Distribution Calendar Year, and if Life Expectancy is being recalculated such succeeding calendar year. (b) Designated Beneficiary. The individual who is designated as the Beneficiary under the Plan in accordance with section 401(a)(9) of the Code and the proposed regu- lations thereunder. MPP 12/23/94 001-94 (c) Distribution Calendar Year. A calendar year for which a minimum distribution is required. For distributions beginning before the Participant's death, the first Distri- bution Calendar Year is the calendar year immediately preceding the calendar year which contains the Participant's Required Beginning Date. For distributions begin- ning after the Participant's death, the first Distributio,- Calendar Year is the calen- dar year in which distributions are required to begin pursuant to Section 11.05 above. (d) Life Expectancy. The Life Expectancy and joint and last survivor expectancy, re- spectively, as computed by use of the expected return multiples in Tables V and VI of section 1.72-9 of the income tax regulations. Unless otherwise elected by the Participant (or spouse, in the case of distributions described in Section 11.05(b)(2) above) by the time distributions are required to begin, Life Expectancies shall be recalculated annually. Such election shall be irrevocable as to the Participant (or spouse) and shall apply to all subsequent years. The Life Expectancy ofa nonspouse Beneficiary may not be recalculated. (e) Participant's Benefit. (1) The Account balance as of the last Accounting Date in the calendar year immediately preceding the Distribution Calendar Year (valuation calendar year) increased by the amount of any contributions or forfeitures allocated to the Account balance as of dates in the valuation calendar year after such Ac- counting Date and decreased by distributions made in the valuation calendar year after such Accounting Date. (2) For purposes of paragraph (1) above, if any portion of the minimum distribu- tion for the first Distribution Calendar Year is made in the second Distribu- tion Calendar Year on or before the Required Beginning Date, the amount of the minimum distribution made in the second Distribution Calendar Year shall be treated as if it had been made in the immediately preceding Distribution Calendar Year. (f) Required Beginning Date. (1) The Required Beginning Date of a Participant is the first day of April of the calendar year following the calendar year in which the Participant attains age seventy and one-half (70-1/2), or such later date as permitted under this Sec- tion or section 401(a)(9) of the Code. (2) The Required Beginning Date of a Participant who attains age seventy and one-half (70-1/2) before January 1, 1988, shall be determined in accordance with (a) or (b) below: (a) Non-5-Percent Owners. The Required Beginning Date ora Participant who is not a 5-Percent Owner is the first day of April of the calendar year follo~ving the calendar year in which the later of retirement or at- tainment of age seventy and one-half (70-1/2) occurs. MPP 12/23/94 00'1-94 (b) 5-Percent Owners. The Required Beginning Date of a Participant who is a 5-Percent Owner during any year beginning after December 31, 1979, is the first day of April following the later of: fi) The calendar year in which the Participant attains age seventy and one-half (70-1/2), or (ii) The earlier of the calendar year with or within which ends the Plan Year in which the Participant becomes a 5-Percent Owner, or the calendar year in which the Participant retires. (3) The Required Beginning Date is April 1, 1990 for a Participant who is not a 5-Percent Owner xvho attains age seventy and one-half (70-1/2) during 1988 and who has not retired as of January 1, 1989. (4) 5-Percent Owner. A Participant is treated as a 5-Percent Owner for purposes of this Section if such Participant is a 5-Percent Owner as defined in section 416(i) of the Code (determined in accordance with section 416 of the Code but without regard to whether the Plan is top-heavy) at any time during the Plan Year ending with or within the calet~dar year in which such oxvner at- tains age sixty-six and one-half (66-1/2) or any subsequent Plan Year. (5) Once distributions have begun to a 5-Percent Owner under this Section, they must continue to be distributed, even if the Participant ceases to be a 5-Per- cent Owner in a subsequent year. 11.07 Transitional Rule. fa) Notwithstanding the other requirements of this Article and subject to the require- ments of Article XII1, distribution on behalf of any Employee, including a 5-Per- cent Owner, may be made in accordance with all of the following requirements (regardless of when such distribution commences): (1) The distribution by the Plan is one which would not have disqualified such Plan under section 401(a)(9) of the Code as in ef~i:ct prior to amendment by the Deficit Reduction Act of 1984. (2) The distribution is in accordance with a method of distribution designated by the Employee whose interest in the Plan is being distributed or, if the Em- ployee is deceased, by a Beneficiary of such Employee. (3) Such designation was in writing, was signed by the Employee or the Benefi- ciary, and was made before January 1, 1984. (4) The Empioyee had accrued a benefit under the Plan as of December 31, 1983. MPP 12/23/94 001-94 (5) The method of distribution designated by the Employee or the Beneficiary specifies the time at which distribt. Llon will co~nmence, the period over which distributions will be made, and in the case of any distribution upon the Employee's death, the Beneficiaries of the Employee listed in order of priority. (b) A distribution upon death will not be covered by this transitional rule unless the information in the designation contains the required information described above with respect to the distributions to be made upon the death of the Employee. (c) For any distribution which commences before January 1, 1984, but continues after December 31, 1983, the Employee, or the Beneficiary, to whom such distribution is being made, will be presumed to have designated the method of distribution under which the distribution is being made if the method of distribution was specified in writing and the distribution satisfies the requiretnents in Subsections (a)( 1 ) and (5). (d) If a designation is revoked any subsequent distribution must satisfv the requirements of section 401(a)(9) of the Code and the proposed regulation~ thereunder. If a designation is revoked subsequent to the date distributions are required to begin, the Trust must distribute by the end of the calendar year following the calendar year in which the revocation occurs the total amount not yet distributed which would have been required to have been distributed to satisfy' section 401(a)(9) of the Code and the proposed regulations thereunder, but for the section 242(b)(2) of the Code election. For calendar years beginning after December 31, 1988, such distributions must meet the minimum distribution incidental benefit requirements in section 1.401(a)(9)-2 of the proposed regulations. Any changes in the designation will be considered to be a revocation of the designation. However, the mere substitution or addition of another Beneficiary (one not named in the designation) under the des- ignation will not be considered to be a revocation of the designation, so long as such substitution or addition does not alter the period over which distributions are to be made under the designation, directly or indirectly (for example, by altering the rel- evant measuring life). In the case in which an amount is transferred or rolled over from one plan to another plan, the rules in Q&A J-2 and Q&A J-3 shall apply. XII. MODES OF DISTRIBUTION OF BENEFITS 12.01 Normal Mode of Distribution. Unless an elective mode of distribution is elected in ac- cordance with Article XIII, benefits shall be paid to the Participant in the form provided for in Article XIII. 12.02 Elective Mode of Distribution. Subject to the requirements of Articles XI and XIII, a Participant may rew)cably elect to have his/her Account distributed in any one ( 1 ) of the following modes m lieu of the mode described in Section 12.01: (a) Equal Payments. Equal monthly, quarterly, semi-annual, or annual payments in an amount ct~osen by the Participant continuing until the Account is exhausted. (b) Lump Sum. A lump sum payment. MPP 12/23/94 001-94 (c) Period Certain. Approximately equal monthly, quarterly, semi-annual, or annual payments, calculated to continue for a period certain chosen by the Participant. (d) Other. Any other sequence of payments requested by the Participant. 12.03 Election of Mode. A Participant's election of a payment option must be made in writing between thirty (30) and ninety (90) days before the pay~'nent of benefits is to commence. 12.04 Death Benefits. Subject to Articles XI and XIII, (a) In the case of a Participant who dies before he/she has begun receiving benefit payments, the Participant's entire Nonforfeitable Interest shall then be payable to his/her Beneficiary within ninety (90) days of the Participant's death. A Benefi- ciary who is entitled to receive benefits under this Section may elect to have ben- efits commence at a later date, subject to the provisions of Section i 1.05. The Beneficiary may elect to receive the death benefit in any of the forms available to the Participant under Section 12.02. If the Beneficiary is the Participant's Surviv- ing Spouse, and such Surviving Spouse dies before payment commences, then this Section shall apply to the beneficiary of the Surviving Spouse as though such Sur- viving Spouse were the Participant. (b) Should the Participant die after he/she has begun receiving benefit payments, the Beneficiary shall receive the remaining benefits, if any, that are payable, under the payment schedule elected by the Participant. Notwithstanding the foregoing, the Beneficiary may elect to accelerate payments of the remaining balances, including but not limited to, a lump sum distribution. X[ll. SPOUSAL BENEFIT REQUIREMENTS 13.01 Application. The provisions of this Article shall take precedence over any conflicting provision in this Plan. The provisions of this Article shall apply to any Participant who is credited with any Period of Service with the Employer on or after August 23, 1984, and such other Participants as provided in Section 13.05. 13.02 Qualified Joint and Survivor Annuity. Un[ess an optional form of benefit is selected pursuant to a Qualified Election within the ninety (90) day period ending on the Annu- ity Starting Date, a married ]Participant's Vested Account Balance will be paid in the form of a Qualified Joint and Survivor Annuity and an unmarried Participant's Vested Ac- count Balance will be paid in the form of a Straight Life Annuity. The Participant may elect to have such annuity distributed upon the attainment of the Earliest Retirement Age under the Plan. 13.03 Qualified Preretirement Survivor Annuity. Ifa Participant dies before the Annuity Starting Date, then fifty percent (50%) of the Participant's Vested Account Balance shall be ap- plied toward the purchase of an annuity for the life of the Surviving Spouse; the remain- ing portion shall be paid to such Beneficiaries (which may include such Spouse) desig- nated by the Participant. Notwithstanding the foregoing, the Participant may waive the MPP 12/23/94 001-94 spousal annuity by designating a different Beneficiary within the Election Period pursu- ant to a Qualified Election. To the extent that less than one hundred percent {i00%) of the vested Account balance is paid to the Surviving Spouse, the amotmt of the Participant's Account derived from Employee contributions will be allocated to the Surviving Spouse in the same proportion as the amount of the Participant's Account derived from Em- ployee contributions is to the Participant's total Vested Account Balance. The Surviving Spouse may elect to have such annuity distributed within a reasonable period after the Participant's death. Further, such Spouse may elect to receive any death benefit payable to him/her hereunder in any of the forms available to the Participant under Section 12.02. 13.04 Notice Requirements. (a) In the case of a Qualified Joint and Survivor Annuity as described in Section 13.02, the Plan Administrator shall, no less than thirty (30) days and no more than ninety (90) days prior to the Annuity Starting Date, provide each Participant a written explanation of: (i) the terms and conditions of a Qualified Joint and Survivor An- nuity; (ii) the Participant's right to make and the effect of an election to waive the Qualified Joint and Survivor Annuity form of benefit; (iii) the rights of a Participant's Spouse; and (iv) the right to make, and the eft%ct of, a revocation of a previous election to waive the Qualified Joint and Survivor Annuity. (b) In the case of a qualified preretirement survivor annuity as described in Section 13.03, the Plan Administrator shall provide each Participant within the applicable period for such Participant a written explanation of the qualified preretirement sur- vivor annuity in such terms and in such manner as would be comparable to the explanation provided for meeting the requirements of Subsection (a) applicable to a Qualified Joint and Survivor Annuity. The applicable period for a Participant is whichever of the following periods ends last: (i) the period beginning with the first day of the Plan Year in which the Par- ticipant attains age thirty-two (32) and ending with the close of the Plan Year pre- ceding the Plan Year in which the Participant attains age thirty-five (35); (ii) a reasonable period ending after (he individual becomes a Participant; (iii) a reason- able period ending after Subsection (c) ceases to apply to the Participant; (iv) a reasonable period ending after this Article first applies to the Participant. Notwithstanding the foregoing, notice must be provided within a reasonable period ending after separation from service in the case of a Participant who separates frota service before attaining age thirty-five (35). For purposes of applying the preceding paragraph, a reasonable period ending after the enumerated events described in (ii), (iii) and (iv) is the end of the two (2) year period beginning one (i) year prior to the date the applicable event occurs, and ending one ( 1 ) year after that date. In the case of a Participant who separates from service before the Plan Year in which age thirty-five (35) is attained, notice shall be provided within the two (2) year period beginning one (1) year prior to separation and ending one (1) year after separation. If such a Participant thereafter returns to employment with the Employer, the applicable period for such Participant shall be redetermined. MPP 12/23/94 001-94 (c) Notwithstanding the other requirements of this Section, the respective notices pre- scribed by this Section need not be given to a Participant if (1) the Plan "fully subsidizes" the costs of a Qualified Joint and Survivor Annuity or qualified prere- tirement survivor annuity, and (2) the Plan does not allow the Participant to waive the Qualified Joint and Survivor Annuity or qualified preretirement survivor annu- ity and does not allow a married Participant to designate a non-Spouse Beneficiary. For purposes of this Subsection (c), a plan fully subsidizes the costs of a benefit if no increase in cost or decrease in benefits to the Participant may result from the Participant's failure to elect another benefit. 13.05 Transitional Rules. (a) Any living Participant not receiving benefits on August 23, 1984, who would oth- erwise not receive the benefits prescribed by the previous Sections of this Article must be given the opportunity to elect to have the prior Sections of this Article apply if such Participant is credited xvith at least one (1) hour of service under this Plan or a predecessor plan in a Plan Year beginning on or after January 1, 1976, and such Participant had at least ten (i0) years of vesting service when he/she separated from service. (b) Any living Participant not receiving benefits on August 23, 1984, who was credited with at least one ( 1 ) hour of service under this Plan or a predecessor plan on or after September 2, I974, and who is not otherwise credited with any service in a Plan Year beginning on or after January 1, 1976, must be given the opportunity to have his/her benefits paid in accordance with Subsection (d). (c) The respective opportunities to elect (as described in Subsections (a) and (b) above) must be afforded to the appropriate Participants during the period commencing on August 23, 1984, and ending on the date benefits would otherwise commence to said Participants. (d) Any Participant who has elected pursuant to Subsection (b) and any Participant who does not elect under Subsection (a) or who meets the requirements of Subsec- tion (a) except that such Participant does not have at least ten (10) years of vesting service when he/she separates from service, shall have his/her benefits distributed in accordance with all of the following requirements if benefits would have been pay- able in the form of a life annuity: ( 1 ) Auto~-natic joint and survivor annuity. If benefits in the form of a life annuity become payable to a married Participant who: (a) Begins to receive payments under the Plan on or after normal retirement age; or (b) Dies on or after normal retirement age while still working for the Employer; or MPP 12/23/94 001-94 (c) Begins to receive payments on or after the qualified early retirement age; or (d) Separates from service on or after attaining normal retirement age (or the qualified early retirement age) and after satisfying the eligibility re- quirements for the payment of benefits under the Plan and thereafter dies before beginning to receive such benefits; then such benefits will be received under this Plan in the form of a Qualified Joint and Survivor Annuity, unless the Participant has elected otherwise dur- ing the election period described herein. Such election period must begin at least six (6) months before the Participant attains qualified early retirement age and end not more than ninety (90) days before the commencement of benefits. Any election hereunder will be in writing and may be changed by the Participant at any time. (2) Election of early survivor annmty. A Participant who is employed after attain- ing the qualified early retirement age will be given the opportunity to elect, during the election period described herein, to have a survivor annuity pay- able on death. If the Participant elects the survivor annuity, payments under such annuity must not be less than the payments which would have been made to the Spouse under the Qualified Joint and Survivor Annuity if the Participant had retired on the day before his/her death. Any election under this provision will be in writing and may be changed by the Participant at any time. The election period begins on the later of (I) the ninetieth (90th) day before the Participant attains the qualified early retirement age, or (2) the date on which participation begins, and ends .m the date the Participant terminates employment. (3) For purposes of this Subsection (d): (a) Qualified early retirement age is the latest of: (i) The earliest date, under the Plan, on which the Participant may elect to receive retirement benefits, (ii) The first day of the 120th month beginning before the Participant reaches normal retirement age, or (iii) The date the Participant begins participation. (b) Qualified Joint and Survivor Annuity is an annuity for the life of the Participant with a survivor annuity for the life of the Spouse as described in Section 13.06(e). MPP 12/23/94 001 .06 Definitions. For the purposes of this Section, the following definitions shall apply: (a) Annuity Starting Date: The first day of the first period for which an amount is paid as an annuity or any other form. (b) Election Period: The period which begins on the first day of the Plan Year in which the Participant attains age thirty-five (35) and ends on the date of the Participant's death. Ifa Participant separates from service prior to the first day of the Plan Year in which age thirty-five (35) is attained, with respect to the Account balance as of the date of separation, the Election Period shall begin on the date of separation. Pre-age thirty-five (35) waiver: A Participant who will not yet attain age thirty-five (35) as of the end of any current Plan Year may make a special Qualified Election to waive the qualified preretirement survivor annuity for the period beginning on the date of such election and ending on the first day of the Plan Year in which the Participant will attain age thirty-five (35). Such election shall not be valid unless the Participant receives a written explanation of the qualified preretirement survi- vor annuity in such terms as are comparable to the explanation required under Sec- tion 13.04(a). Qualified preretirement survivor annuity coverage will be automati- cally reinstated as of the first day of the Plan Year in which the Participant attains age thirty-five (35). Any new waiver on or after such date shall be subject to the full requirements of this Article. (c) Earliest Retirement Age: The earliest date on which, under the Plan, the Partici- pant could elect to receive retirement benefits. (d) Qualified Election: A waiver of a Qualified Joint and Survivor Annuity or a quali- fied preretirement survivor annuity. Any waiver of a Qualified Joint and Survivor Annuity or a qualified preretirement survivor annuity shall not be effective unless: (a) the Participant's Spouse consents in writing to the election; (b) the election designates a specific Beneficiary, including any class of Beneficiaries or any contin- gent Beneficiaries, which may not be changed without spousal consent (or the Spouse expressly permits designations by the Participant without any further spousal con- sent); (c) the Spouse's consent acknowledges the effect of the election; and (d) the Spouse's consent is witnessed by a Plan representative or notary public. Addition- ally, a Participant's waiver of the Qualified Joint and Survivor Annuity shall not be effective unless the election designates a form of benefit payment which may not be changed without spousal consent (or the Spouse expressly permits designations by the Participant without any further Spousal consent). If it is established to the satisfaction of a Plan representative that there is no Spouse or that the Spouse can- not be located, a waiver will be deemed a Qualified Election. Any consent by a Spouse obtained under this provision (or establishment that the consent of a Spouse may not be obtained) shall be effective only with respect to such Spouse. A consent that permits designations by the Participant without any requirement of further consent by such Spouse must acknowledge that the Spouse has the right to limit consent to a specific Beneficiary, and a specific form of benefit MPP 12/23/94 001-94 where applicable, and that the Spouse voluntarily elects to relinquish either or both of such rights. A revocation of a prior waiver may be made by a Participant without the consent of the Spouse at any time before the commencement of benefits. The number of revocations shall not be limited. No consent obtained under this provi- sion shall be valid unless the Participant has received notice as provided in Section 13.04. (c) Qualified Joint and Survivor Annuity: An immediate annuity for the life of the Participant with a survivor annuity for the life of the Spouse which is not less than fifty percent (50%) and not more than one hundred percent (100%) of the amount of the annuity which is payable during the joint lives of the Participant and the Spouse and which is the amount of benefit which can be purchased with the Participant's Vested Account Balance. The percentage of the survivor annuity shall be fifty percent (50%). (f) Spouse (Surviving Spouse): The Spouse or Surviving Spouse of the Participant, provided that a former Spouse will be treated as the Spouse or Surviving Spouse and a current Spouse will not be treated as the Spouse or Surviving Spouse to the extent provided under a qualified domestic relations order as described in section 414(p) of the Code. (g) Straight Life Annuity: An annuity payable in equal installments for the life of the Participant that terminates upon the Participant's death. Vested Account Balance: The aggregate value of the Participant's vested Account balances derived from Employer and Employee contributions (including rollovers), whether vested before or upon death, including the proceeds of insurance contracts, if any, on the Participant's life. The provisions of this Article shall apply to a Par- ticipant who is vested in amounts attributable to Employer Contributions, Em- ployee contributions (or both) at the time of death or distribution. 13.07 Annuity Contracts. Where benefits are to be paid in the form of a life annuity pursuant to the terms of this Article, a nontransferable annuity contract shall be purchased from a life insurance company and distributed to the Participant or Surviving Spouse, as appli- cable. The terms of any annuity contract purchased and distributed by the Plan shall comply with the requirements of this Plan and section 417 of the Code. MPP 12/23/94 ~1 001-94 XIV. /.OANS TO PARTICIPANTS 14.01 Availability of Loans to Participants. (a) If the Employer has elected in the Adoption Agreement to make loans available to Participants, a Participant may apply for a loan from the Plan subject to the limita- tions and other provisions of this Article. (b) The Employer shall establish written guidelines governing the granting of loans, provided that such guidelines are approved by the Plan Administrator and are not inconsistent with the provisions uf this Article, and that loans are made available to all Participants on a reasonably equivalent basis. 14.02 Tt. rms and Conditions of Loans to Participants. Any loan by the Plan to a Participant under Section 14.01 of the Plan shall satisfy the fullowing requirements: (a) Availability. Loans shall be made available to all Participants on a reasonably equivalent basis. (b) Nondiscrimination. Loans shall not be made to Highly Compensated Employees in an amount greater than the amount made available to other Employees. (c) Interest Rate. Loans must be adequately secured and bear a reasonable interest rate. (d) Loan Limit. No Participant loan shall exceed the present value of the Participant's Nonforfeitable Interest in his/her Account. (e) Spousal Consent. A Participant must obtain the consent of his/her Spouse, as de- fined under Section 13.06 if any, within the ninety (90) day period before the time the Account balance is used as security for the loan. Spousal consent shall be ob- tained no earlier than the beginning of the ninety (90) day period that ends on the date on which the loan is to be so secured. The consent must be in writing, must acknowledge the effect of the loan, and must be witnessed by a Plan representative or notary public. Such consent shall thereafter be binding with respect to the con- senting Spouse or any subsequent Spouse with respect to that loan. A new consent shall be required if the Account balance is used for renegotiation, extension, re- newal, or other revision of the loan. (f) Foreclosure. In the event of default, foreclosure on the note and attachment of security will not occur until a distributable event occurs m the Plan. (g) Reduction of Account. If a valid spousal consent has been obtained in accordance with Subsection (e), then, notwithstanding any other provision of this Plan, the portion of the Participant's vested Account balance used as a security interest held by the Plan by reason of a loan outstanding to the Participant shall be taken into account for purposes of determining the amount of the Account balance payable at the time of death or distribution, but only if the reduction is used as repayment of MPP 12/23/94 001-94 the loan. If less than one hundred percent (100%) of the Participant's nonforfeitable Account balance (determined without regard to the preceding sentence) is payable to the surviving spouse, then the Account balance shall be adjusted by first reduc- ing the nonforfeitable Account balance by the a~nount of the security used as repay~ ment of the loan, and then determining the benefit payable to the surviving spouse. (h) Amount of Loan. At the time the loan is made, the principai amount of the loan plus the outstanding balance (principal plus accrued interest) due on any other outstanding loans to the Participant or Beneficiary from the Plan and from all other plans of the E~nployer that are qualified under section 401(a) of the Code shall not exceed the least of: (1) $50,000, reduced by the excess (if any) of (a) The highest outstanding balance of loans from the Plan during the one ( 1 ) year period ending on the day before the date on which the loan is made, over (b) The outstanding balance of loans from the Plan on the date on which such loan is made; or (2) The greater of (a) $10,000, or (b) One-half (1/2) of the value of the Participant's Nonforfeitable Interest in all of his/her Accounts under this Plan. For the purpose of the above limitation, all loans frotn all plans of the Employer and other members of a group of employers described in sections 414(b), 414(c), and 414(m) and (o) of the Code are aggregated. (i) Application for Loan. The Participant must give the Employer adequate written notice, as determined by the Employer, of the amount and desired time for receiving a loan. No more than one ( 1 ) loan may be made by the Plan to a Participant in any caiendar year. No loan shall be approved if an existing loan from the Plan to the Participant is in default to any extent. (j) Length of Loan. The terms of any loan issued or renegotiated after December 3 I t 1993, shall require the Participant to repay the loan in substantially equal install- ments of principal and interest, at least monthly, over a period that does not exceed five (5) years from the date of the loan; provided, however, that if the proceeds of the loan are applied by the Participant to acquire any dwelling unit that is to be used within a reasonable time (determined at the time the loan is made) after the loan is made as the principal residence of the Participant, the five (5) year limit shall not apply. In this event, the period of repayment shall not exceed a reasonable period determined by the Employer. Principal instalhnents and interest payments MPP 12/23/94 001 94 (c) Repayment of principal and payment of interest shall be made by payroll deduction or, where repayment cannot be made by payrol! deduction, by check, and shall be invested in one (1) or more other investment fonds, in accordance with Section 7.05 of the Plan, as of the next Accounting Date after payment thereof to the Trust. The amount so invested shall be deducted from the Participant's Loan Account. (d) The Employer shall have the authority to establish other reasonable rules, not in- consistent with the provisions of the Plan, governing the establishment and main- tenance of Participant Loan Accounts. XV. PLAN AMENDMENT, TERMINATION AND OPTIONAL PROVISIONS 15.01 Amendment by Employer. The Employer reserves the right, subject to Section 15.02 of the Plan, to amend the Plan from time to time by either: (a) Filing an amended Adoption Agreement to change, delete, or add any optional provision, or (b) Continuing the Plan in the form of an amended and restated Plan and Trust. No amendment to the Plan shall be effective to the extent that it has the effect of de- creasing a Participant's accrued benefit. Notwithstanding the preceding sentence, a Par- ticipant's Account balance may be reduced to the extent permitted under section 412(c) (8) of the Code. For purposes of this paragraph, a Plan amendment which has the effbct of decreasing a Participant's Account balance or eliminating an optional form of benefit, with respect to benefits attributable to service before the amendment shall be treated as reducing an accrued benefit. Furthermore, if the vesting schedule of the Plan is amended, in the case of an Employee who is a Participant as of the later of the date such amendment is adopted or the date it becomes effective, the nonfonCeitable percentage (determined as of such date) of such Employee's right to his/her Employer-derived accrued benefit xvill not be less than his percentage computed under the plan without regard to such amendment. The Employer may (1) change the choice of options in the Adoption Agreement, (2) add overriding language in the Adoption Agreement when such language is neces- sary to satisfy sections 415 or 416 of the Code because of the required aggregation of multiple plans, and (3) add certain model amendments published by the Internal Revenue Service which specifically provide that their adoption will not cause the Plan to be treated as individually designed. An Employer that amends the Plan for any other reason, including a waiver of the minimum funding requirement under section 412(d) of the Code, will no longer participate in this Prototype Plan and will be considered to have an individually designed plan. MPP 12/23/94 001-94 15.07 Amen&nent of Vesting Schedule. If the Plan's vesting schedule is amended, or the Plan is a~nended in any way that directly or indirectly aflbcts the computation of the Participant's nonforfeitable percentage or if the Plan is deemed amended by an automatic change to or from a top-heavy vesting schedule, each Participant may elect, within a reasonable pe- riod after the adoption of the amendment or change, to have the nonfurfcitable percent- age computed under the Plan without regard to such amendment or change. The period during which the election may be made shall commence with the date the amendment is adopted or deemed to be made and shall end on the latest of: fa) Sixty (60) days after the amendment is adopted; (b) Sixty (60) days after the amendment becomes effective; or (c) Sixty (60) days after the Participant is issued written notice of the amendment by the Etnployer or Plan Administrator. 15.03 Termination by Employer. The Employer reserves the right to terminate this Plan. How- ever, in the event of such termination no part of the Trust shall be used or diverted to any purpose other than for the exclusive benefit of the Participants or their Beneficiaries, except as provided in this Section. Upon Plan termination or partial termination, all Account balances shall be valued at their fair market value and the Participant's right to his/her Employer Contribution Ac- count shall be one hundred percent (100%) vested and nonfurfeitable. Such amount and any other amounts held in the Participant's other Accounts shall be maintained for the Participant until paid pursuant to the terms of the Plan. Any amounts held in a suspense account, after all liabilities of the Plan to Participants and Beneficiaries have been satisfied or provided for, shall be paid to the Employer in accordance with the Code and regulations thereunder. If the Employer's Plan fails to attain or retain qualification under section 401 of the Code, such Plan will no longer participate in this Regional Prototype Plan and will be consid- ered an individually designed Plan. In the event that the Commissioner of Internal Revenue determines that the Plan is not initially qualified under the Internal Revenue Code, any contribution made by the Enaployer incident to that initial qualification must be returned to the Employer within one year after the date the initial qualification is denied, but only if the appli- cation for the qualification is made by the time prescribed by law for filing the Employer's return for the year in which the Plan is adopted, or such later date ~s the Secretary of the Treasury may prescribe. 15.04 Discontinuance of Contributions. A permanent discontinuance of contributions to the Plan by the Employer, unless an amended and restated Plan is established, shall consti- tute a Plan termination. MPP 12/23/94 001-94 15.05 Amendment by Prototype Sponsor. The Prototype Sponsor may amend this Plan upon thirty (30) days written notification to the EmF.oyer; provided, however, that any such amendment must be for the express purpose of maintaining compliance with applicable federal laws and regulations of the internal Revenue Service. 15.06 Optional Provisions. Any provision which is optional under this Plan shall become effbctive if and only if elected by the Employer and agreed to by the Prototype Sponsor. XVI. ADMINISTRATION 16.01 Powers of the Employer. The Employer shall have the following powers and duties: (a) To appoint and remove, with or without cause, the Plan Administrator; (b) To amend or terminate the Plan pursuant to the provisions of Article XV; (c) To appoint a committee to facilitate administration of the Plan and communica- tions to Participants; (d) To decide all questions of eligibility (1) for Plan participation, and (2) upon ap- peal by any Participant, Employee or Beneficiary, for the payment of benefits; (e) To engage an independent qualified public accountant, when required to do so by law, to prepare annually the audited financial statements of the Plan's operation; (f) To take all actions and to communicate to the Plan Administrator in writing all necessary information to carry out the terms of the Plan and Trust; and (g) To notify the Plan Administrator in writing of the termination of the Plan. 16.02 Duties nf the Plan Administrator. The Plan Administrator shall have the following powers and duties: (a) To construe and interpret the provisions of the Plan; (b) To maintain and provide such returns, reports, schedules, descriptions, and indi- vidual Account statements, as are required by law within the times prescribed by law; and to furnish to the Employer, upon request, copies of any or all such ~'nate- rials, and further, to make copies of such instruments, reports, descriptions, and statements as are required by law available for examination by Participants and such of their Beneficiaries who are or may be entitled to benefits under the Plan in such places and in such manner as required by law; (c) To obtain from the Employer such information as shall be necessary for the proper administration of the Plan; (d) To determine the amount, manner, and time <of payment of benefits hereunder; MPP 12/23/94 (e) To appoint and retain such agents, counsel, and accountants for the purpose of properly administering the Plan; (f) To distribute assets of the Trust to each Participant and Beneficiary in accordance with Article XI of the Plan; (g) To pay expenses fi:om the Trust pursuant to Section 7.03 of the Plan; and (h) To do such other acts reasonably required to administer the Plan in accordance with its provisions or as may be provided for or required by law. 16.03 Protection of the Employer. The Employer shall not be liable for the acts or omissions of the Plan Administrator, but only to the extent that such acts or omissions do not result from the Employer's failure to provide accurate or timely information as required or nec- essary for proper administration of the Plan. 16.04 Protection of the Plan Administrator. The Plan Administrator may rely upon any certificate, notice or direction purporting to have been signed on behalf of the Em- ployer which the Plan Administrator believes to have been signed by a duly desig- nated official of the Employer. 16.05 Resignation or Removal of Plan Administrator. The Plan Administrator may resign at any time effective upon sixty (60) days prior written notice to the Employer. The Plan Administrator may be removed by the Employer at any time upon sixty (60) days prior written notice to the Plan Administrator. Upon the resignation or removal of the Plan Administrator, the Employer may appoint a successor Plan Administrator; failing such appointment, the Employer shall assume the powers and duties of Plan Administrator. Upon the resignation or removal of the Plan Administrator, any Trust assets invested by or held in the name of the Plan Administrator shall be transferred to the trustee in cash or property, at fair market value, except that the return of Trust assets invested in a contract issued by an insurance company shall be governed by the terms of that contract. 16.06 No Termination Penalty. The Plan Administrator shall have no authority or discretion to impose any termination penalty upon its removal. 16.07 Deciskms of the Plan Administrator. All constructions, determinations, and interpreta- tions made by the Plan Administrator pursuant to Section 16.02(a) or (d) shall be final and binding on all persons participating in the Plan, given deference in all courts of la~v to the greatest extent allowed by applicable law, and shall not be overturned or set aside by any court of law unless found to be arbitrary or capricious, or made in bad faith. XV[I MISCELLANEOUS 17.01 Nonguarantee of Employment. Nothing contained in this Plan shall be construed as a contract of employment between the Employer and any Employee, or as a right of an Employee to be continued in the employment of the Employer, as a limitation of the right of the Employer to discharge any of its Employees, with or without cause. MPP 12/23/94 001 -94 17.02 Rights to Trust Assets. No Employee or Beneficiary shall have any right to, or interest in, any assets of the Trust upon termination of his/her employment or otherwise, except as provided from time to time under this Plan, and then only to the extent of the benefits payable under the Plan to such Employee or Beneficiary out of the assets of the Trust. All payments of benefits as provided for in this Plan shall be made solely out of the assets of the Trust and none of the fiduciaries shall be liable therefor in any manner. 17.03 Nonalienation of Benefits. Except as provided in Section 17.04 of the Plan, benefits payable tinder this Plan shall not be subject in any manner to anticipation, alienation, sale, transfer, assigmnent, pledge, encumbrance, charge, garnishment, execution, or levy of any kind, either voluntary or involuntary, prior to actually being received by the per- son entitled to the benefit under the terms of the Plan; and any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, charge or otherwise dispose of any right to benefits payable hereunder, shall be void. The Trust shall not in any manner be liable for, or subject to, the debts, contracts, liabilities, engagements or torts of any person en- titled to benefits hereunder. 17.04 Qualified Domestic Relations Order. Notwithstanding Section 17.03 of the Plan, amounts may be paid with respect to a Participant pursuant to a domestic relations order, but if and only if the order is determined to be a qualified domestic relations order within the meaning of section 414(p) of the Code or any domestic relations order entered before January 1, 1985. 17.05 Nonforfeitability of Benefits. Subject only to the specific provisions of this Plan, nothing shall be deemed to deprive a Participant of his/her right to the Nonforfeitable Interest to which he/she becomes entitled in accordance with the provisions of the Plan. 17.06 Incompetency of Payee. In the event any benefit is payable ro a minor or incompetent, to a person otherwise under legal disability, or to a person who, in the sole judgment of the Employer, is by reason of advanced age, illness, or other physical or mental incapacity incapable of handling the disposition of his/her property, the Employer may apply the whole or any part of such benefit directly to the care, comfort, maintenance, support, educa- tion, or use of such person or pay or distribute the whole or any part of such benefit to: (a) The parent of such person; (b) The guardian, committee, or other legal representative, wherever appointed, of such person; (c) The person with whom such person resides; (d) Any person having the care and control of such person; or (e) Such person personally. The receipt of the person to whom any such payment or distribution is so made shall be full and complete discharge therefor. MPP 12/23/94 ~1~ 001 -94 17.07 Inability to Locate Payee. Anything to the contrary hereto notwithstanding, if the ployer is unable, after reasonable effort, to locate any' Participant ur Beneficiary to whom an amount is payabie hereunder, such amount shall be forfeited and held in the Trust application against the next succeeding Employer Contribution or contributions required to be made hereunder. Notwithstanding the foregoing, however, such amount shall be reinstated, by means of an additional Employer contribution, if and when a claim for the forfeited amount is subsequently tnade by the Participant or Beneficiary or if the Elm ployer receives proof of death of such person, satisfactory to the Employer. To the extent not inconsistent with applicable law, any benefits lost by reason of escheat under ap- plicable state law shall be considered forieited and shall not be reinstated. 17.08 Mergers, Consolidations, and Transfer of Assets. The Plan shall not be ~nerged into or consolidated with any other plan, nor shall any of its assets or liabilities be transferred into any such other plan, unless each Participant in the Plan would (if the Plan then termi- nated) receive a benefit imtnediately after the merger, consolidation, or transfer that is equal to or greater than the benefit he/she would have been entitled to receive immediately before the merger, consolidation, or transfer (if the Plan had then terminated). 17.09 Employer Records. Records of the Employer as to an Employee's or Participant's Period of Service, termination of service and the reason therek~r, leaves of absence, reemploy- ment, Earnings, and Compensation will be conclusive on ali persons, unless determined to be incorrect. 17.10 Controlled Groups and Affiliated Service Groups. fa) Except as provided in Section 6.05(f), all Employees of all corporations which are members of a controlled group of corporations (as defined in section 414(b) of the Code) and all Employees of all trades or businesses (whether or not incorporated) which are under common control (as defined in section 414(c) of the Code) will be treated as employed by a single Employer. (b) All Employees of all ~nembers of an affiliated service group (as defined in section 414(m) of the Code) will be treated as employed by a single Employer. (c) All Employees of any entity required to be aggregated with the Employer pursuant to section 414(o) of the Code and the regulations thereunder will be treated as employees by a single Employer. 17.11 Gender and Number. The masculine pronoun, whenever used herein, shall include the feminine pronoun, and the singular shall include the plural, except where the context requires otherwise. 17.i2 Leased Employees. Any leased employee deemed to be an employee of an employer as provided in sections 4t4(n) or (o) under the Code, shall be treated as an Employee of the employer or of any other employer required to be aggregated with such employer under sections 414(b), (c), (m) or (o) of the Code; however, contributions or benefits provided by the leasing organization which are attributable to services performed for the recipient MPP 12/23/94 001 employer shall be treated as provided by the recipient employer. The preceding sentence shall not apply to any leased Employee if fi) s~ch employee is covered by a money pur- chase pension plan providing: ( 1 ) a nonintegrated employer contribution rate of at least ten percent (10%) of compensation, as defined in section 415(c)(3) of the Code, but including amounts contributed pursuant to a salary reduction agreement which are ex- cludable from the employee's gross income under sections 125,402(e)(3), 402(h)(1)(B) or 403(b) of the Code, (2) immediate participation, and (3) full and immediate vesting, and (ii) leased employees do not constitute more than twenty percent (20%) of the recipient's non-highly compensated workforce. For purposes of this paragraph, the term "leased employee' means any person (other than an Employee of the recipient) who pursuant to an agreement between the recipient and any other person ("leasing organiza- tion'') has performed services for the recipient (or for the recipient and related persons determined in accordance with section 414(n)(6) of the Code) on a substantially full-time basis for a period of at least one (1) year and such services are of a type historically per- fomaed by Employees in the business field of the recipient Employer. 17.13 Applicable Law. The Plan shall be construed under the laws of the State where the Employer is located, except to the extent superseded by federal law. The Plan is estab- lished with the intent that it meets the requirements under the Code. The provisions of this Plan shall be interpreted in conformity with these requirements. In the event of any conflict between the Plan and a policy or contract issued hereunder, the Plan provisions shall control; provided, however, no Plan amendment shall supersede an existing policy or contract unless such amendment is required to maintain qualifica- tion under section 401 of the Code. XV[ll. TOP HEAVYPROV[SIONS 18.01 ©eneral Rule. If the Plan is or becomes top-heavy, the provisions of this Article will supersede any conflicting provisions in the Plan or Adoption Agreement. 18.02 Definitions. If the Plan is or becomes top-heavy in any Plan Year, the following top-heavy definitions apply: fa) Compensation: Earnings; provided that regardless of any election by the Employer in the Adoption Agreement, Compensation as used herein shall include all over- time and bonus compensation. (b) Determination Date: For any Plan Year, the last day of the preceding Plan Year or, in the case of the first Plan Year of the Plan, the last day of that Plan Year. Kev Employee: Any Employee or former Employee (and the Beneficiaries of such Employee) who at any time during tire determination period ~vas an officer of the Employer if such individual's annual Compensation exceeds 50 percent of the dol- lar limitation tinder section 415(b)( 1 )(A) of the Code, an owner (or considered an owner under section 318 of the Code) of one (1) of the ten (10) largest interests in MPP 12/23/94 OO1-94 the Employer if such individual's annual Compensation exceeds one hundred per- cent (100%) of the dollar limitation under section 415(c)(1)(A) of the Code, a 5-percent owner of the Employer, or a 1-percent owner of the Employer xvho has an annual Compensation of more than $150,000. Annual Compensation means compensation as defined in Subsection 6.05(b) of the Plan, but including an, ounts contributed pursuant to a salary reduction agreement which are excludable from the Employee's gross income under sections 125,402(e)(3 ), 402(h)( 1 )(B) or 403 (b) of the Code. The determination period is the Plan Year containing the Determina- tion Date and the four (4) preceding Plan Years. The determination of tvho is a Key Employee will be made in accordance with section 416(i) ( 1 ) of the Code and the regulations thereunder. (d) Non-key Employee: Any Employee who does not meet the definition of Key Employee. (e) Permissive Aggregation Group: The Required Aggregation Group plus any other qualified plans maintained by the Employer, but only if such group would satisfy in the aggregate the requirements of sections 401 (a)(4) and 410 of the Code. The Employer shall determine which plan to take into account in determining the Per- missive Aggregation Group. (f) Present Value: The Present Value based on the interest and mortality rates speci- fied in the defined benefit plan aggregated with this Plan for the ptlrpose of deter- mining the top-heavy ratio. (g) Required Aggregation Group: (1) Each qualified Plan of the Employer in wi, ich at least one (1) Key E~-nployee participates or participated at any time during the determination period (re- gardless of whether the Plan has terminated); and (2) Any other qualified Plan of the Employer which enables a plan described in (1) to meet the requirements of sections 401 (a)(4) or 410 of the Code. (h) Valuation Date: For purposes of computing the top-heavy ratio, the Valuation Date shall be the last day of each Plan Year. 18.03 Determination of Top-Heavy Status. The Plan is top-heavy if any of the following condi- tions exists: (a) If the top-heavy ratio for this Plan exceeds sixty percent (60%) and this Plan is not part of any Required Aggregation Group or Permissive Aggregation Group of plans. (b) If this Plan is a part of a Required Aggregation Group of plans, but not part of a Permissive Aggregation Group, and the top-heavy ratio for the group of plans ex- ceeds sixty percent (60%). MPP 12/23/94 001-94 (c) If this Plan is a part of a Required Aggregation Group and parr of a Permissive Aggregation Group of plans and the top-heavy ratio for the Permissive Aggregation Group exceeds sixty percent (60%). 18.04 Top-heavy Ratios: (a) If the Employer maintains one (1) or more defined contribution plans (including any simplified employee pension plan) and the Employer has not maintained any defined benefit plan which during the five (5) year period ending on the Determina- tion Date(s) has or has had accrued benefits, the top-heavy ratio for this Plan alone or for the Required or Permissive Aggregation Group as appropriate is a fraction, the numerator of which is the sum of the account balances of all Key Employees as of the Determination Date(s) (including any part of any account balance distrib- uted in the five (5) year period ending on the Determination Date(s)), and the denominator of which is the sum of all account balances (including any part of any account balance distributed in the five (5) year period ending on the Determina- tion Date(s)), both computed in accordance with section 416 of the Code and the regulations thereunder. Both the numerator and denominator of the top-heavy ratio are increased to reflect any contribution not actually made as of the Determina- tion Date, but which is required to be taken into account on that date under section 416 of the Code and the regulations thereunder. (b) If the Employer maintains one (1) or more defined contribution plans (including any simplified employee pension plan) and the Employer maintains or has main- tained one (1) or more defined benefit plans which during the five (5) year period ending on the Determination Date(s) has or has had any accrued benefits, the top-heavy ratio for any Required or Permissive Aggregation Group as appropriate is a fraction, the numerator of which is the sum of account balances under the aggre- gated defined contribution plan or plans for all Key Employees, determined in accord- ance with (a) above, and the Present Value of accrued benefits under the aggregated defined benefit plan or plans for all Key Employees as of the Determination Date(s), and the denominator of which is the sum of the account balances under the ag- gregated defined contribution plan or plans fur all Participants, determined in ac- cordance with (a) above, and the Present Value of accrued benefits under the de- fined benefit plan or plans for all Participants as of the Determination Date(s), all determined in accordance with section 416 of the Code and the regulations there- under. The accrued benefits under a defined benefit plan in both the numerator and denominator of the top-heavy ratio are increased for any distribution of an accrued benefit made in the five (5) year period ending on the Determination Date. (c) For purposes of (a) and (b) above, the value of account balances and the Present Yalue of accrued benefits will be determined as of the most recent Valuation Date that falls within or ends with the twelve (12) month period ending on the Determina- tion Date, except as provided in section 416 of the Code and the regulations there- under for the first and second Plan Years of a defined benefit plan. The Account balances and accrued benefits of a Participant (t) who is not a Key Employee but who was a Key Employee in a prior year, or (2) who has not been credited with at MPP 12/23/94 001 -94 least one ( 1 ) hour of service with any Employer maintaining the Plan at any time during the five (5) year period ending on the Determination Date will be disre- garded. The calculation of the top.heavy ratio, and the extent to which distributions, rollovers, and transfers are taken into account will l_~e made in accordance with section 416 of the Code and the regulations tl~ereunder. Deductible Employee Contributions will not be taken into account for purposes of computing the top-heavy ratio. XX~hen aggregating plans the value of account balances and accrued benefits will be calculated with reference to the Determination Dates that fall within the same calendar year. The accrued benefit of a Participant other than a Key Employee shall be deter- mined under fa) the metlnod, if any, that uniformly applies for accrual purposes under all defined benefit plans maintained by the Employer, or (b) if there is no such method, as if such benefit accrued not more rapidly than the slowest accrual rate permitted under the fractional rule of section 4i 1 (b)( 1 )(C) of the Code. 18.05 Vesting Schedule. For any Plan Year in which this Plan is top-heavy, the Nonforfeitable Interest of each Employee in his/her account balance attributable to Employer Contribu- tions shall be determined on the basis of the following: one hundred percent (100%) vesting at all times. The minimum vesting schedule applies to all benefits within thc meaning of section 41 l(a)(?) of the Code except those attributable to Employee Contri- butions, including benefits accrued before the effective date of section 416 of the Code and benefits accrued before the Plan became top-heavy. Further, no decrease in a Participant's nonforfeitable percentage may occur m the event the Plan's status as top-heavy changes for any Plan Year. However, this Section does not apply to the Account balances of any Employee who does not have an hour of service after the Plan has initially become top-heavy and such Employee's Account balance attributable to Employer Contributions and forfeitures will be determined without regard to this Section. If the vesting schedule under the Plan shifts in or out of the above schedule for any Plan Year because of the Plan's top-heavy status, such shift is an amendment to the vesting schedule and the election in Section 15.02 of the Plan applies. 18.06 Minimum Employer Contribution. (a) Except as otherwise provided in Subsection (c) below, the Employer Contributions and forfeitures allocated on behalf of any Participant who is not a Key Employee for any Plan Year for which the Plan is top heavy shall not be less than the lesser of three percent (3%) of such Participant's Compensation or in the case where the Employer has no defined benefit plan which designates this Plan to satisfy section 401 of the Code, the largest percentage of Employer Contributions and forfeitures, as a percentage of the Key Employee's Compensation, as limited by section 401(a~(l? of the Code, allocated on behalf of any Key Employee for that year. The minimum allocation is determined without regard to any Social Security contribution. This minimum allocation shall be made even though, tinder other Plan provisions, the Participant would not otherwise be entitled to receive an allo- cation, or would i~ave received a lesser allocation for the year because of (i) the MPP 12/23/94 001-94 Participant's failure to complete [,000 Hours of Service (or any equivalent provided in the Plan), or (ii) the Participant5 failure to make Mandatory Participant Contri- butions to the Plan, or (iii) co~pensation less than a stated amount. (b) For purposes of computing the minimum allocation, Compensation will mean com- pensation as defined in Section 6.05(b) of the Plan, as lim ~ed by section 401 (a)(17) of the Code. (c) The provision in Subsection (a) above shall not apply to any Participant who was not employed by the Employer on the last day of the Plan Year. (d) The minimum allocation required (to the extent required to be nonforfeitable un- der section 416(b) of the Code) may not be forfeited under section 41 l(a)(3)(B) or 411 (a)(3)(D) of tlxe Code. 18.07 Additional Contribution. If the contribution rate for the Plan Year with respect to a Non-Key Employee described in Section 18.06 is less than the minimum contribution, the Employer will increase its contribution for such Employee to the extent necessary so his/her contribution rate for the Plan Year will equal the guaranteed minimum contribu- tion. The Employer shall allocate the additional contribution to the Account of the Non-Key E~nployee for whom the Employer makes the contribution. MPP 12/23/94 001 -94 ICMA RETIREMENT CORPORATION INTERNAL REVENUE SERVICE OPINION LETTER AND ................ PUBLICATI©N 1488 INTERNAL REVI~NUE SERVICE DEPARTMENT OF THE TREASURY DISTRICT DIRECTOR 31 HOPKINS PLAZA BALTIMORE, MD 21201-0000 Employer Identification Number: Date: December 19, 1994 23-7268394 File Folder Number: 524195046 Person to contact: G.N. WALLACE International city Management Contact Telephone Number: Association Retirement Corporation {410) 962-92973 777 North Capitol Street, NE Plan Name: Washington, DC 20002-4240 ICNL~ Retirement Corporation Protot!rpe Money Purchase Plan & Trust Plan Number: 001 Letter Serial Number: D8520096 Dear Applicant: The amencLment to the form of the plan identified above is acceptable under section 401 (a) of the Internal Revenue Code. This letter relates only te the amendment to the form of the plan. It is not a determination ef any other amendment or ef the form ef the plan as a whole, or en the effect ef other federal or local statutes. You must furnish a copy of this letter and the enclosed publication to each employer who adopts this plan. You are also required te send a copy of this letter, a copy of the approved form of the plan, and any approved amend- ments and related documents to each key District Director of the Internal Revenue Service in whose jurisdiction there are adopting employers. The acceptability of the form ef the plan is net a ruling or determination as to whether an employer's plan qualifies under Cede section 401(a) or 403(a) . Therefore, an employer adopting the form of the plan should apply for a determination letter by filing an application with the key District Director of the Internal Revenue Service on Form 5307, Application for Determination for Adopters of Master or Prototype, Regional Prototype or Volume Submitter Plans. Please advise those adopting the plan to contact you if they have any questions about the operation of the plan. We have sent a copy of this letter to your representative as indicated in your Power of Attorney. The original opinLon letter for this plan was issued on September 26, 1991. Letter 2026 (DO/CG) -2- If you have any questions concerning the IRS processing of this case, please call the above telephone number. If you write, please provide your telephone number and the most convenient time for us to call in case we need more information. Whether you call or write, please refer to the Letter Serial Number show~a in the heading of this letter. You should keep this letter as a permanent record. Sincerely yours Enclosure (s) Publication 1488 1Depariment of the Treasury who may adopt the plans for the This advance assurance is a service Internal Revenue Service benefit of their employees, provided by the Internal Revenue The significance of a favorable Service, and is not required for notification letter differs for stand- qualification. Form 5307, Application ardized plans and nonstandardized for Determination for Adopters of Publication 1488 plans. A standardized plan can be Master or Prototype Regional Proto- (January 1990) identified by the number 2, 5, or 7 type or Volume Submitter Plans, is appearing in the second position of used to request a determination the letter serial number (the num- letter, along with Form 5302, ber following the alpha character Employee Census, Form 8717 which appears in the upper right (explained later), a copy of the adop- portion of the letter). A nonstandard- tion agreement, a copy of the notifi- ized plan may be identified by the cation letter, a certification from number 3, 6, or 8 appearing in the the plan sponsor that the plan second position, has not been withdrawn and is still Introduction Standardized Plans. A standardized in effect, and a copy of any separate This publication is issued in conjunc- plan is designed to be automatically trust or custodial account document. lion with a favorable notification acceptable under any fact pattern, User Fee. There is a charge for letter. It explains the significance of except as indicated below. There- requesting a determination letter, your letter, points out some features fore, there is no need to request a but the charge is significantly that may affect the qualified status determination letter for such plans, reduced for regional prototype plans. of the plan, and provides information provided the employer does not Please complete and attach Form on the reporting requirements for amend the plan and chooses only 8717, User Fee for Employee Plan the plan. those options in the adoption Determination Letter Request, to An employee retirement plan qua[- agreement that were approved by Form 5307 when requesting a deter- iliad under Internal Revenue Code the Service. Although a determine- letter. section 401(a) or 403(a) (qualified tion letter is not requested, the Law Changes Affecting the Plan. plan) is entitled to favorable tax treat- employer must still inform inter- Plans must be amended to retain merit. For example, contributions ested parties of the establishment their qualified status if any plan made in accordance with the plan or amendment of the plan. However, provision fails qualification require- document are generally currently a determination letter is required ments because of changes in the deductible. Participants will not in- for advance assurance that the provi- law becoming effective subsequent clude these contributions into in- sions of the plan satisfy the qualifi- to the issuance of the notification come until the time they receive a cation requirements if the employer letter. If the plan is not amended, distribution from the plan, at which maintains or has maintained am the plan will become nonqualified time special income averaging rates other qualified plan. Under certain without specific notice from the for lump sum distributions may serve circumstances, employers who have Service. This will occur even if the to reduce the tax liability. In some adopted standardized defined bane- employer has received a favorable cases, taxation may be further de- fit plans may wish fo request a deter- determination letter in addition to ferred by rollover to another quail- ruination letter that their plans prior the notification letter. The employer fled plan or individual retirement benefit structure satisfies the re- and plan participants may be subject arrangement. See Publication 575, quirements of Internal Revenue to adverse tax consequences if the Pension and Annuity Income, for Code section 401(a)(26). plan is nonqualified. fur[her details. Finally, plan earnings Paired plans are standardized The first character of the serial may accumulate free of tax. plans that are designed to work number assigned to the plan indi- Employee retirement plans that together. A paired plan may be rec- cafes the latest law change for which fail to satisfy the requirements under ognized by the "phrase other than a the plan had been amended. For section 401 (a) or 403(a) are not end- specified paired plan" appearing in example, the letter "D" indicates tied to this favorable tax treatment, the fifth or sixth paragraph of the the plan was amended for the Tax Therefore, many employers desire notification letter. If the employer Reform Act of 1986, which generally advance assurance that the terms maintains and has maintained only became effective for plan years after of their pfans satisfy the qualifica- paired plans, a determination letter the 1988 plan year. lion requirements. The Service is not needed. A notification letter will not be provides such advance assurance Nonstandardized Plans. It is possible applicable after a change in qualifica- for regional prototype plans by that the unique fact patterns applica- lion requirements unIess the plan issuing favorable notification letters, hie to a specific employer may cause sponsor requests a new notification . However, in some cases, a determi- a nonstandardized plan to fail quail- letter within 12 months after the nation letter is also required for fication. Therefore, to obtain change. The plan sponsor must pro- reliance, advance assurance that the plan is vide those employers for whom the qualified, the plan must be sub- employer is continuing to sponsor mitred for a determination letter. A the plan with a copy of the amend- determination letter is similar to an ments and the new notification letter Significance of a insurance policy that will, in many within 60 days of the receipt of the cases, protect the employer and plan new letter. If a change requires Favorable Notification beneficiaries from adverse tax con- modification of the adoption agree- Letter sequences if the plan is later found ment, employers must execute the Notification letters are issued by the to be nonqualified in the absence of new agreement by the later of 6 Service to sponsors of regional pro- a change in law, provided the plan months after issuance of the new ~otype plans. Plan sponsors then is being operated in good faith in notification letter, or the end of the make the plan available to employers accordance with plan provisions, period specified in Internal Reve- nue Code section 401(b). It the application for a notification Reporting Requirements. Most plan Form 5500 - for a pension benefit letter was submitted to the Service administrators or employers who plan with 100 or more participants within certain time frames, the plan maintain an employee benefit plan at the beginning of the plan year. generally need not be amended must file an annual return/report with Form 5500-C - for a pension benefit again unless required to do so by the Internal Revenue Service. The plan with more than one but fewer legislation. The application was following forms should be used for than 100 participants at the begin- submitted to the Service within this purpose: ning of the plan year. these time frames, if the following Form 5500EZ-generally for a "One- Form 5500-R - for a pension benefit paragraph appears in the notification Participant Plan," which is a plan plan with more than one but fewer letter: "For purposes of sections that covers only: (1) an individual, than 100 participants at the start of 15.02 and 15.03 of Rev: Proc. or an individual or his or her spouse the plan year for which 5500-C is 89-13, 1989-7 I.R.8.25, your app[i- who wholly owns a business, not filed. Note: For 1989 and subse- cation was received timely", whether incorporated or not, or (2) quent years Form 5500-R is part of Required Notifications to Adopting partner(s) in a partnership or the the Form 5500C/R package. Filing Employers. The plan sponsor must padner(s) and the partner's spouse, only the first two pages of the Form provide adopting employers with If Form 5500EZ cannot be used, the 5500C/R package constitutes the annual notifications indicating one-participant plan should use filing of a Form 5500-R. whether the sponsor intends to con- 5500-C or 5500-R, whichever When to file. Forms 5500 and tinue to sponsor the plan, and applies. Note: Keogh (H.R. 10) plans 5500EZ must be filed annually. Form whether amendments have been are required to file an annual return 5500-C must be filed for (i) the initial made to the plan. The plan sponsor even if the only participants are plan year, (ii) the year a final return/ must also notify employers within owner-employees. The term "owner- report would be filed, and (iii) at 60 days if the plan sponsor discon- employes" includes a padner who three-year intervals. Form 5500-R tinues its sponsoring of the plan. owns more than 10% interest in must be filed in the years when Form Required Notifications to the Internal either the capital or the profits of 5500-C is not filed (See Note above). Revenue Service. On each anniver- the partnership. This applies to both However, 5500-C will be accepted sary of the date of issuance of the defined contribution and defined in place of 5500-R. For more infor- notification letter, the plan sponsor benefit plans, marion, see Publication 1048, Filing must advise the Service whether Filling Exception for Plans that have Requirements for Employee Benefit the sponsor has made any changes no more than $100,000 in Assets. Ptans. to the plan, and whether the plan An annual return is not required to Disclosure. The Internal Revenue is still being made available for be filed for one-participant plans Service will process the returns and adoption by employers. The plan having less than $100,000 in assets provide the Department of Labor and sponsor must also provide a listing that otherwise qualify for filing Form the Pension Benefit Guarantee of adopting employers, and a state- 5500EZ. Corporation with the necessary infor- ment that the plan sponsor has marion and copies of the returns on provided employers with the notifica- microfilm for disclosure purposes. lion described in the above para- graph. iCMA RETIREMENT TRUST DECLARATION OF TRUST OF THE ICMA RETIREMENT TRUST amended January 1995 DECLARATION OF TRUST OF ICMA RETIREMENT TRUST ARTICLE I. NAME AND DEFINITIONS (o) Retirement Trust. The Trust created by this Section 1. I Name: The Name of the Trust created hereby is the Declaration of Trust. ICMA Retirement Trust. (p) Trust Property. The amounts held in the Retirement Section 1.2 Definitions: Wherever they are used here in, the Trust on behalf of the Public Employers in connection follo~'in~ terms shall have the following respective with Deferred ( 'mpensation Plans and on behalf of meanings: the PuNic Employer Trustees for the exclusive benefit of Employees pursuant to Qualified Plans. The Trust fa) By-laws. The By-laws referred to in Section 4. I hereof, Property shall include any income resulting from the as amended from time to time. investment to the amounts so held. (b} Deferred Compensation Plan. A deferred compensation plan established and maintained by a (q) Trustees. Thc Public Employee Trustees and ICMA/ Public Employer for thepurposeofprovidingretirement KC Trustees elected by the Public Employers to serve as members of the Board of Trustees of the Retirement income and other deferred benefits to its employees in Trust. accordance with the provision of section 457 of the internal Revenue Code of 1986, as amended. ARTICLE II. CREATION AND PURPOSE OF THE TRUST; (c) Employees. Those employees who participate in OWNERSHIP OF TRUST PROPERTY Qualified Plans. Section 2.1 Creation: The Retirement Trust was created by the (d) Employer Trust. A trust created pursuant to an execution of this Declaration of Trust by the initiaITrust- agreement between RC and a Public Employer, or an ecs and Public Employers and is established with respect to agreement between RC and a Public Employer for each participating Public Employer by adoption of this administrative services that is not a trust, in either case Declaration of Trust. for the purpose of investing and administering the Section 2.2 Purpose: The purpose of the Retirement Trust is to funds se t aside by such Employer in connection with its provide tor the commingIed investment of funds held by Deferred Compensationagreementswith its employees the Public Employers in connection with their Deferred or m connection with its Qualified Plan. Compensation and Qualified Plans. The Trust Property (e) Investment Contract. A non-negotiable contract shall be invested in the Portfolios, in Investment Con- entered into by the Retirement Trust with a financial tracts, and m other investments recommended by the insntutlon that provides for a fixed rate of return on Investment Adviser under the supervision of the Board of investment. Trustees. No part of the Trust Property will be invested in (f) ICMA. The International City/County Management securities issued by Public Employers. Association. Section 2.3 Ownership of Trust Property: The Trustees shall have legal title to the Trust Property. The Public Employ- (g) ICMA/RC Trustees. Those Trustees elected by the ers shahbe the beneficial owners of the portion of the Trust Public Employers who, in accordance with the Property aliucable to the Deferred Compensation Plans. provisions of Section 3.1fa) hereof, are also members of tbe Board of Directors of ICMA or RC (or in the case The portion of the Trust Property allocable to the Quali- >f iRC, former members of the RC Board). fled Plans shall be held for the Public Employer Trustees for (h) Investment Adviser. The Investment Adviser that the exclusive benefit of the Employees. enters into a contract with the Retirement Trust to ARTICLE IlL TRUSTEES pruvide advice with respect to investment of the Trust Section 3.1 Number and Qualification of Trustees: fa) The Property. Board of Trustees shall consist of nine Trustees. Five of the fi) Portfolios. The separate commingled accounts of Trustees shall be full-time employees of a Pubiic Employer investment established by the Investment Adviser to (the Public Employee Trustees) who are authorized by such the Retirement Trust, under the supervision of the Public Employer to serve as Trustee. The remaining four Trustees, for the purpose of providing investments for Trustees shall consist of two persons who, at the time of the Trust Property. election to the Board of Trustees, are members of the Board (j) Public Employee Trustees. Those Trustees elected by of Directors of ICivlA and two persons who, at the time of election, are members or former members of the Board of thc Public Employers who, In accordance with the Directors of RC (the ICMA/RC Trustees). One of the provision of Section 3.1 fa) hereof, are full-time Trustees who is a director oflCMA, and one c~fthe Trustees employees of Public Employers. who is a director of RC, shall, at thc time of election, be (k) Public Employer Trustees, Public Employers who full-time employees of Public Employers. (b) No person serve as trustees of thc Qualified Plans. may serve as a Trustee for more than two terms in any ten- (l) Public Employer. A unit of state or local governntent, year period. or any agency or instrumentality thereof, that has Section 3.2 Election and Term: fa) Except for the Trustees adopted z Deferred Compensation Plan or a Qualified appointed to fill vacancies pursuant to Section 3.5 hereof, Plan and has executed this Declaration of Trust. the Trustees shall be elected by a vote of a majority of thc (m) Qualified Plan. A plan spunsored by a Public Emp[oyer voting Public Employers in accordance with thc proce- for the purpose of providing retirement income to its dures set forth in the By-Laws. (b) At the first election of Trustees, three Trustees sha[I be elected for a term of three cmployeeswtfich satisfies the qualification requirements years, three Trustees shall be elected for a term of two years of Section 401 of the Internal Revenue Code, as amended, and three Trustees shall be elected for a term of one year. At each subsequent election, three Trustees shall be elected, (n) RC. The [nternationai City Management Association each to serve for a term of three years and until his or her Retirement C~)rporation. successor is elected and qualified. amended January 1995 Section 3.3 Nominations: The Trustees who are full-time thelnvesrmentContractsandinanyodqerinvestment employees of Public Employers shall serve as the Nominat- recommended by the Investment Adviser, but not ing Comndttee for the Public Employee Trustees. The including securities issued by Public Employers, Nominating Committee shall choose candidates for Public provided that ifa Public Employer has directed that its Employee Trustee itl accordance with the procedures set monies be invested m one or more specified Portfolios forth itl tile By-Laws. or m an Invesnnent Contract, the Trustees of the Retirement Trust shall invest sucln monies in Section 3.4 Resignation and Removal: fa) Any Trustee may resign as Trustee (without need for prior or subsequent accordance with such directions; accounting) by an instrument in writing signed by the (e) keepsucbportionoftheTrustPropertyincashorcash Trustee and delivered to the other Trustees and such balances astheTrustees, from time to time, may deem resignation shall be effective upon such delivery, or at a to be ~n the best ~ntercst of the Retirem~mt Trust later date accordin~to the terms of the instrument. Any of created hereb;, witlnout liability for interest there~m; the Trustees may t0e removed for cause, by a vote of a (f) accept and retain for such time as they may deem majority of the Public Employers. (b) Each Public Em- advisableanysccuritiesor orherproperty received or ployee Trustee shah resign his or her position as Trustee acquired by them as Trustees bereunder, whether or within sixty days of the date on which he or she ceases to not such securities or other property would normally be a kill-time employee cfa Public Employer. be purchased as invesnncnt lncrcunder; Section 3.5 Vacancies: The term of office of a Trustee shall (g) cause any securtnes or other property held as part of terminate and a wtcancy shall occur in the event his or her the Trust Property to be registered in the name of the death, resignation, removal, adjudicated incompetence or Retirement Trust or itl the name cfa nominee, and to other incapacity to perform the duties of the office of a L~old at'~;' investments in bearer k)rm, bt~t the books Trustee. In the case of a vacancy, the remaining Trustees and records of thc Trustees shall at all times show that shall appoint such person as they in their discretion shall al/such investments ar£ a part of the Trust Property; see fit (subject n/the limitations set forth in this Section), to serve for the unexpired portion of the term of theTrustee (b) make, execute, acknc~wledge, and deliver any and all wino has resigned or otherwise ceased to be a Trustee. The documents of transfer and conveyance and an5 and all appointment shall be made by a written instrument signed other instrtnnents that may be necessary or appropriate by a majority of the Trustees. The person appointed must n/carry out the powers herein granted; be the same type of Trustee (i.e., Put0Iic Employee Trustee fi) vote upon any stock, bonds, or other securities; give or ICMA/RC Trustee) as the person who has ceased to be general or special proxies or powers of attorney with a Trustee. An appointment of a Trustee may be made m or without power of substitution; exercise any anncipation of:l vacancy to occur at a later date by reason conversion privileges, subscription rights, or otlner of retirement or resignation, provided that such appoint- options, and make any payments incidental thereto; vacancy is fdled as provided in this Section 3.5, the Trust- corporate secunnes,;md delegate discretionary p<)wers ecs in office, regardless of their number, shall have all the and pa5, any assessinenrs or charges in connection powers granted to tine Trustees and shall discharge all the therewith; and generally exercise my of the powers of duties imposed upon rbc Trustees by this Declaration. A an owner witb respect to stocks, bonds, securlnes or signed by a malority of the Trustees shall be conclusive (j) enter rote contracts or arrangements k)r goods or executing this Declaration, eacln Public Employer agrees contracts with custodians and contracts for the that the Public Employee Trustees elected by tile Public provis~on of ~dministrative services; Employers are authorized to act as agents and representa- (k) borrow or raise money fei thc purposes of the t~ves of the Public Employers collectively. Retirement Trust in such amount, and upon such ARTICLE IV. POWERS OF TRUSTEES terms and conditions, ~s fine Trustees shalt deenl advisable, provided that the aggregate amount of such Section 4.1 General Powers: The Trustees shall have the power borrowings shall not exceed 30% of the value of the re conduct the business of thc Trust and to carry on its Trust Property. No person lending money to the operanons. Such power shall include, but shall not be Trustees shall bc bound to see the application ofthe fa) receive the Trust Property from the Public Employers, or propnety or any such borrowing; Public Employer Trustees or the trustee or administrator (1) incur reasonable expenses as required for the operation tinder any Employer Trtlst; of the Retirement Trust and deduct such expenses (b) enter ~nto a contract with an Investment Adviser from of the Trust Property; providing, among other things, for the establishment (m) pay expenses properly allocable to the Trust Property and operation of the Portfolios, selection of the incurredinconnectionwirhtheDeferredOompensanon Investment Contracts m which the Trust Property may Plans, Qualified Plans, or the Employer Trusts and be invested, selection of the other investments for the deduct such expenses from that portion of the Trust Trust Property and the pa: tlent of reasonable fees to Property to which such expenses are ploperly allocable; adviser retained by the hwestment Adviser; (n) pay out of the Trust Property all real and personal (c) review anntlally the performance of tine Investment and all kinds which, in the opinion of the Trustees, Adviser and approve annually the contract with stlch are properly levied, or assessed under exisnng or (d) nwes~ and re nwest the Trust Property in tile Portfolios, and allocate any such taxes to the appropriate accounts; amended January 1995 (o) adopt, amend and repeal the By-laws, provided that like capacity and familiar with such matters would use m such By-laws are at all times consistent witl~ the terms the conduct of ail enterprise of a like character and with of this Declaration of Trust; like aims. (p) employ persons to make available interests in the Section 5.2 Liability: The Trustees shall not be liable for any Retirement Trust to employers eligible to maintain a mistake of judgment or other action taken in good faith, Deferred Compensation Plan under Sec tion 457 or a and for an;, action taken or omitted in reliance m good faith Qualified Plan under Section 401 of the Internal upon the books of account or other records of the Retire- Rev, ue Code, as amended; ment Trust, upon the opinion of counsel, or upon reports (q) issue the Annual Report of the Retirement Trust, and made to theRetirement Trustbyanyofitsofficers, employ- the disclosure documents and other literature used by ees or agents or by the Investment Adviser or any sub- the Retirement Trust; investment adviser, accountant, appraiser or other expert (r) in addition to conducting the investment program orconsultantselectedwithreasonablecarebytheTrustees, authorized in Section 4.1(d make loans, includ ng officers or employees of the Retirement Trust. The Trust- the purchase of debt obligations, provided that ali suctx ees shall also not be liable for any loss sustained by the Trust loans shall bear interest at the current market rate; Property by reason of any investment made in good faith and in accordance with the standard of care set forth in (s) contractfor, anddelegateanypowersgrantedhereunder Section 5.1. to, such officers, ageuts, employees, auditors and attorneys as the Trustees may select, provided that the Section 5.3 Bond: No Trustee shall be obligated to give any Trustees may not delegate the powers set forth in bond or other security for the performance of any of his or paragraphs (b), (c) and (o) of this Section 4.1 and may her duties hereunder. notdelegateanypowersifsucbdelegationwouldviolate ARTICLE VI. ANNUAL REPORT TO SHAREHOLDERS their fiduciary duties; (t) provide for the indemnification of the Officers and The Trustees shall annually submit to the Public Employers and Public Employer Trustees a written report of the transactions of the ~FrusteesofthcRetirementTrustandpurchasefiduciary Retirement ~rust, including financial statements which shall be lnsurancG (u) maintain books and records, includmgseparate accounts certified by independent public accountants chosen by the Trustees. for each Public Employer, Public Employer Trustee or ARTICLE VII. DURATION OR AMENDMENT OF EInplover Trust and s c ~ add tonal separate accounts RETIREMENT TRUST as are required under, and consistent with, the Deferred Section 7.1 Withdrawal:,A Public Employer or Public Employer Compensation or Qualified Plan of each Public Trustee may, at an~ time, withdraw from this Retirement Employer; and Trust by delivering to the Board of Trustees a written (v) do ail such acts, take all such proceedings, and exercise statement of withdrawal. In such statement, the Public ail such rights and prMleges, although not specifically Employer or Public Employer Trustee shall acknowledge mentioned herein, as the Trustees may deem necessary that the Trust Property allocable to the Public Employer is or appropriate to administer the Trust Property md to derived from compensation deferred by employees of such carry out the purposes of the Retirement Trust. Public Employer pursuant to its Deferred Compensation Section 4.2 Distribution of Trust Property: Distributions of thc Plan or from contributions to the accoun ts of EmpIoyees Trust property shall be made to, fir on behalf of, the Public pursuant to a Qu dified Plan, and shall designate the Employer or Public Employer Trustee, in accordance with financial insntution to wtqch such property shall be trans- the terms of the Deferred Compensation Plans, Qualified ferred by the Trustees of the Retirement Trust or by the Plans or Employer Trusts. The Trustees of the Retirement trustee or administrator under an Employer Trust. Trustshal/befldlyprotectedinmakingp vmentsmaccor- Section 7.2 Duration: The Retirement Trust shah continue dance with the directions of the Public Employers, Public until terminated by the vote of a majority of the Public Employer Trt~stees or trustees or administrators of any Employers, eachcastingonevote. Upon termlnation, allof Employer Trust without ascertaining xvhether such pay- the Trust Property shall be paid out to the Public Employ- ments are In compliance with the provisions of the appb- ers, Public Employer Trustees or d~e trustees or administra- cable Deferred Compensation or Qualified Plan or Em- tots of the Employer Trusts, as appropriate. ployer Trust. Section 7.3 Amendment: The Retirement Trust may be amended Section 4.3 Execution of Instruments: The Trustees ma;, by the vote of a majority of the Public Employers, each execute any instrument or document on behalf of all, Section 7.4 Procedure: A resolution to termtnate or amend the including but not limited to the signing or endorsement of Retirement Trtlst or to remove a Trustee shall be submitted any check and the signing of any applications, insurance to a vote of the Public Employers if: (i) a majonty of the' and other contracts, and the action of such designated Trustees so direct, or; (ii) a petition requesting a vote Trustee or Trustees shall have the same force and effect as signed by not less that 25 percent of the Public Employers, ' if taken by all the Trustees. is submitted to the Trustees. ARTICLE V. DUTY OF CARE AND LIABILITY OF ARTICLE VIII. MISCELLANEOUS TRUSTEES Section 5.1 Duty of Care: In exercising the powers hereinbefore Section 8.1 Governing Law: Except as otherwise required by granted to the Trustees, the Trustees shall perform ali acts state or local law, this Declaration of Trust and the Retire- within their authority for the exclusive purpose of provid- men t Trust hereby created shal! be construed and regulated mg benefits for the Public Employers tn connecnon with by the laws of the District of Columbia. Deferred Compensation Plans and Public Employer Trust- Section 8.2 Counterparts: This Declaration may be executed by ees pursuant to Qualified Plans, and shall perform such acts the Public Employers and Trustees in two or more counter- ~vith the care, skill, prudence and diligence in the circum- parts, each of which shall be deemed an original but all of stances then prevailing that a prudent person acting in a which together shall constitute one and the same instrument. amended January 1995 ICMA RETIREMENT CORPORATION ICMA RETIREMENT CORPORATION P.O. BOX 9622o WASHINGTON, DC 20090-6220 1-800-326-7272 PKT1A0-003-9604 LOAN GUIDELINES NAME OF PLAN: CTTY 0~' AVENTtmA ...... '^~'^''' RETIREMENT PLAN I. PURPOSE The purpose of these guidelines is to establish the terms and conditions under ~vhich the Employer will grant loans to participants. This is the only official Loan Program Document of the above named Plan. II. ELIGIBILITY Loans are available to all active employees. Loans will not be granted to participants who have an existing loan in default. Loans are available from the following sources: [select one or both] Y,~ Employer Contribution Account (vested balances only) Participant Contribution Accounts (pre- and post-tax, if applicable, including Employee Mandatory, Employee Voluntary, Employer Rollover, and Portable Benefits Accounts, but excluding the Deduct- ible Employee Contribution/Qualified Voluntary Employee Contribution Account) Loans will be pro-rated among 'all the funds in which the participant is invested at the time the loan is made. Loans are available for the following purposes: [select one] ~ All purposes Loans shall only be granted in the event of a participant's hardship or for the purpose of enabling a participant to meet certain specified financial situations. The Employer shall determine, based on all relevant facts and circumstances, that the amount of the loan is not in excess of the amount required to relieve the financial need. For this purpose, financial need shall include, but not be linfited to: unreimbursed medical expenses of the participant or members of the participant's immediate family, establishing or substantially rehabilitating the principal residence of the participant, or paying for a college education (including graduate studies) for the participant or his/her dependents. III. FREQUENCY OF LOANS [select one] X~I Participants may receive one loan per calendar year. Moreover, participants may have only one outstanding loan at a time. Participants may receive one loan per calendar year. Moreover, no participant may have more than five (5) loans outstanding at one time. PP93F IV. LO~N AMOUNT Tl~e mirfimum loan amount i~ $I,000. The maximum loan amount is: the lesser of: (1) $50,000, reduced by the excess (if any) of: a. The highest outstanding balance of loans during the one-year period ending on the day before the date a loan is to be made, over b. Tlie outstanding balance of loans on the date the loan is to be made; or (2) 1/2 of the participant's vested account balance. If a participant has any loans outstanding at the time a new loan is requested, the new loan will be limited to the maximum amount calculated above reduced by the total of the outstanding loans. V. LENGTH OF LOAN A loan must be repaid in substantially equal installments of principal and interest, at least monthly, over a period that does not exceed five (5) years. Loans for a principal residence must be repaid in substantially equal installments of principal and interest, at least monthly, over no more than i0 [state number of years] years (maximum 30 years). VI. LOAN REPAYMENI PROCESS Loans for active employees must be repaid through payroll deduction. Repayment will begin as soon as practi- cable on a date determined by the Employer's payroll cycle. Loans outstanding for former employees who are allowed under Section X. to maintain their loans or loans outstanding for employees on a leave of absence must be repaid on the same schedule as if payroll deductions were still being made unless they reamortize their loans and establish a new repayment schedule which provides that substantially equal payments are made at least monthly over the remairdng period oft_he loan. All repayments must be made through the Employer. Loan payments, including loan payments from former employees, are allocated to the same inveslment options designated on the 401 Enrollment Form or according to the most current 401 change form which specifies contribution allocations. VII. LOAN INTEREST RATE The rate of interest for loans of five (5) years or less will be based on prime plus 0.5%. The rate of interest tbr loans for a principal residence will be based on the FHAlVA rate. Interest rates are determined on the last business day of the month preceding the month the loan is disbursed. The interest rate is locked in at the time a loan is approved and remains constant throughout the life of the loan. The prime interest rate is determined on the last business day of each month using the Wall Street Journal as the source. The FHAIVA interest rate is also determined on the last business day of each month using the Telerate Information Service as the source. PP93F Loan interest rates for new loans may fluctuate upward or dowmvard monthly, depending on the movement of the prime and FHA/VA interest rate,. The Employer may modify the manner in which loan interest rates will be determined, but only with respect to future loans. VIII. lOAN APPIlCAIION PROCEDURE All loans must be requested in writing on an application approved by the Plan Administrator. The application must be signed by the participant. The Employer must review and approve the application. If the participant is married at the time of application, and spousal consent is required by the plan for the loan, the participant's spouse must consent, in writing, to the loan and the consent must be witnessed by a plan repre- sentative or notary public. Such consent must be given within the ninety (90) day period before the time the loan is made. Spousal consent, if required, must accompany the application in order for the application to be considered complete. The participant will be required to sign a promissory note evidencing the loan and a disclosure statement wldch includes an amortization schedule prior to receiving a loan check. Loan checks will generally be issued on the Friday following the receipt of a complete loan application. The loan check, promissory note, disclosure statement and truth-in-lending recision notice will be sent to the Employer, who will obtain the necessary signatures and deliver the check to the participant. All executed documents must be returned to the Plan Administrator within 10 calendar days from the date the check is issued. IX. SECURITY/COLLATERAl That portion of a participant's vested account balance that is equal to the amount of the loan is used as collateral for the loan. The collateral amount may not exceed 50% of the participant's vested account balance at the time the loan is taken. Only that portion of the vested account balance that corresponds to the amount of the outstanding loan balance is used as collateral. X. ACCELERATION [select one] All loans are due and payable in full upon separation from service. All loans are due and payable when a participant receives a distribution of 'all of fus/her account balance after separation from service. The amount of the outstanding loan balance will be reported as a distribution in addition to the amount of cash distributed from the plan. All loans are due and payable when a participant receives a distribution of part of his/her account balance after separation from service. The amount of the outstanding loan balance will reported as a distribution in addition to the amount of cash distributed from the plan. PP93F XI. REAMORTIZATION Any outstanding loan may be reathorfized. Reamortizafion means changing the terms of a loan. such as length of repayment period, interest rate, and frequency of repayments. A loan may not be remnortized to extend the length of the loan repayment period to more than five (5) years from the date the loan wt~s originally made, or in the case of a loan tu secure a principal residence, beyond tile number of years specified by the Employer in Section V. above. A participant must request the reamortization of a loan in xvriting on a reamortizatJon application acceptable to the Plan Adininistrator. Spousal consent must accompany the request/hr reamonization when such consent is required by tile plan. Upon processing the request, a new disclosure statement will be sent to the Employer for endorsement by the participant and approval by the Employer. ~he executed disclosure statement must be returned to the Plan Administra- tor within 10 calendar days from the date it is signed. The new disclosure statement is considered an an~endment to the original promissory note, therefore a new prmnissory note will not be required. A reamortization will not be considered a new loan tbr purposes of calculating the number of loans outstanding or the one loan per calendar limit. XII. RFI:INANCING EXISIING LOANS If a participant has one outstanding loan, that loan may be refinanced. If a participant has more than one outstand- ing loan, no loans may be refinanced. Refinancing means concurrently repaying an existing loan and borrowing an additional amount tlzrough a new loan. In order to refinance an existing loan, a participant must request a new loan in writing on an application approved by the Plan Administra[or. Spousal consent must accompany the application when such consent is required by the plan. Such request must be made at a time when the participant is eligible to obtain a loan as defined by the Employer in Section III. above. The amount of a new loan requested for the purpose of refinancing is subject to the loan limits specified in Section IV. above. Because a refinancing is considered a new loan, only active employees may refinance an outstanding loan. XIll. REDUCIION OF LOAN If a participant dies and leaves an outstanding loan, the unpttid loan balance will be repaid from the account balance before any distributions arc made to a beneficiary. XIV. LOAN DEFAULI If a required payment of principal and interest is not made within 90 days of the date such payment is due, the loan is considered in default. If a loan is in default, the loan will be foreclosed during the calendar year in which the participant separates from service. However, the IRS "deems" a default to be a distribution in the year the default occurs. Therefore, the amount of the outstanding loan at the time of the default, including accrued interest, will be reported to the IRS as a distribution in the year the default occurs even though the loan may not be fore- closed at that time. The distribution may be subject to taxes and possibly a penalty for early withdrawal. If a participant has separated from service and defaults on a loan, then the loan will be foreclosed during the calendar year in wbich the default occurs. 'lhe amount of the outstanding loan, including accrued interest, will be reported to the IRS as a distribution which may be subject to taxes and possibly a penalty for early withdrawal PP93F If tba Employer has elected in Section X. and the promissory note so provides, a loan becomes due and payable when the participant separates from service. If the terms of the loan contain this provision, the outstanding loan amount is "deemed" in default as of the date of separation from service. The amount of the outstanding loan, including accrued interest, will be reported to the IRS as a distribution which may be subject to taxes and possibly a penalty for early withdrawal. If the Employer has so elected in Section X. and the promissory note so provides, a loan becomes due and payable when the participant takes a distribution of some or all of the b'alance in his/her account after separation from service. If the terms of the loans contain such a provision and the outstanding loan balance is not paid prior to the distribution from the account, the outstanding loan amount will be considered in default upon issuance of the distribution check. The amount of the outstanding loan, including accrued interest, will be reported to the IRS as a distribution which may be subject to taxes and possibly a penalty for early withdrawal. XV. DE MINIMIS ACCOUNTS AND OUTSTANDING LOAN BALANCE If a participant separates from service and the participant's total vested account balance, including the outstanding loan balance, is $3,500 or less, the Plan will automatically foreclose the loan. The account balance remaining after the loan has been satisfied will be disbursed in accordance with De Minimis provisions of Section 10.04 of the Plan. If tiffs occurs, the amount of the loan, including accrued interest, will be reported to the IRS as part of the distribution, which may be subject to taxes and possibly a penalty for early withdrawal. XVI. FEES Fees may be charged for various services associated with the application for and issuance of loans. All applicable fees will be debited from the participant's account balance. A schedule of fees applicable to this Plan is available from the Plan Administrator. XVll. OIHER The Employer has the tight to set other terms and conditions as it deems necessary for loans from the Plan in order to comply with any legal requirements. All terms and conditions will be adntinistered in a uniform and non-discriminatory manner. In Witness Whereof, the Employer hereby caused these Guidelines to be executed this __day of ,19 EMPLOYE~ ~ ACCEPTED: ICN~ R~TIRE~I~' CORPORATION BY' ~ ~ .... BY: ' Eric iL 5oroka / ~ TITLE' City Mana~o~r ~ / ' ~%~ TITLE: ~/(~?~ ~*~ EECEIYE~ aU~ ~ ! I~ PP93F ICMA RETIREMENT CORPORATION ADMINISTRATIVE SERVICES AGREEMENT Type: 401 Account Number: 9534 ICMA Plan # 9534 RETIREMENT CORPORATION ADMINISTRATIVE SERVICES AGREEMENT This Agreement, made as of the ~J/Z day of ~_~ , 199~, (herein referred to as the "inception Date"), between The International City Management Association Retirement Corporation ("RC"), a nonprofit corporation organized and existing under the laws of the State of Delaware; and the City of Aventura ("Employer") a City organized and existing under the laws of the State of Florida with an office at 2750 NE 187th Street, Aventura, Florida 33180. Recitals Employer acts as a public plan sponsor for a retirement plan ("Plan") with responsibility to obtain investment alternatives and services for employees participating in that Plan; The ICMA Retirement Trust (the "Trust") is a common law trust governed by an elected Board of Trustees for the commingled investment of retirement funds held by state and local governmental units for their employees; RC acts as investment adviser to the Trust; RC has designed, and the Trust offers, a series of separate funds (the "Funds") for the investment of plan assets as referenced in the Trust's principal disclosure documents, "Making Sound Investment Decisions: A Retirement Investment Guide" and "A Retirement Investment Guide for the Mutual Fund Series." The Funds are available only to public employers and only through the Trust and RC. In addition to serving as investment adviser to the Trust, RC provides a complete offering of services to public employers for the operation of employee retirement plans including, but not limited to, communications concerning investment alternatives, account maintenance, account record-keeping, investment and tax reporting, form processing, benefit disbursement and asset management. [CMA Plan # 9534 RETIREMENT CORPORATION Agreements 1. Appointmc. nl:_nf FIG Employer hereby designates RC as Administrator of the Plan to perform all non-discretionary functions necessary for the administration of the Plan with respect to assets in the Plan deposited with the Trust. The functions to be performed by RC include: (a) allocation in accordance with participant direction of individual accounts to investment Funds offered by the Trust; (b) maintenance of individual accounts for participants reflecting amounts deferred, income, gain, or loss credited, and amounts disbursed as benefits; (c) provision of periodic reports to the Employer and participants of the status of Plan investments and individual accounts; (d) communication to participants of information regarding their rights and elections under the Plan; and (e) disbursement of benefits as agent for the Employer in accordance with terms of the Plan. 2. Adoption of Trust Employer has adopted the Declaration of Trust of the ICMA Retirement Trust and agrees to the commingled investment of assets of the Plan within the Trust. Employer agrees that operation of the Plan and investment, management and disbursement of amounts deposited in the Trust shall be subject to the Declaration of Trust, as it may be amended from time to time and shall also be subject to terms and conditions set forth in disclosure documents (such as the Retirement Investment Guide or Employer Bulletins) as those terms and conditions may be adjusted from time to time. It is understood that the term "Employer Trust" as it is used in the Declaration of Trust shall mean this Administrative Services Agreement. 3. Employc. r Eklty_:ka Flemish Information Employer agrees to furnish to RC on a timely basis such information as is necessary for RC to carry out its responsibilities as Administrator of the Plan, including information needed to allocate individual participant accounts to Funds in the Trust, and information as to the employment status of participants, and participant ages, addresses and other identifying information (including tax -3- Plan # 9534 RETIREMENT CORPORATION identification numbers). RC shall be entitled to rely upon the accuracy of any information that is furnished to it by a responsible official of the Employer or any information relating to an individual participant or beneficiary that is furnished by such participant or beneficiary, and RC shall not be responsible for any error arising from its reliance on such information. RC will provide account information in reports, statements or accountings. All account discrepancies must be reported to RC within 120 days of the close of the quarter in which the discrepancy occurs. After that time the report, statement, or accounting shall be deemed to have been accepted by the Employer and the participants 4. ¢~e. Lh~:L~o~e~t_~ti~n.% Warrantic. s: and Covp. nants RC represents and warrants to Employer that: (a) RC is a non-profit corporation with full power and authority to enter into this Agreement and to perform its obligations under this Agreement. The ability of RC to serve as investment adviser to the Trust is dependent upon the continued willingness of the Trust for RC to serve in that capacity. (b) RC is an investment adviser registered as such with the Securities and Exchange Commission under the Investment Advisers Act of 1940, as amended. ICMA-RC Services, Inc. (a wholly owned subsidiary of RC) is registered as a broker- dealer with the Securities and Exchange Commission (SEC) and ds a member in good standing of the National Association of Securities Dealers, Inc. RC covenants with employer that: (c) RC shall maintain and administer the Plan in compliance with the requirements for plans which satisfy the qualification requirements of Section 401 of the Internal Revenue Code; provided, however, RC shall not be responsible for the qualified status of the Plan in the event that the Employer directs RC to administer the Plan or disburse assets in a manner inconsistent with the requirements of Section 401 or otherwise causes the Plan not to be carried out in accordance with its terms; provided, further, that if the plan document used by the Employer contains terms that differ from the terms of RC's standardized plan document, RC shall not be responsible for the qualified status of the Plan to the extent affected by the differing terms in the Employer's plan document. Employer represents and warrants to RC that: (d) Employer is organized in the form and manner recited in the opening paragraph of this Agreement with full power and authority to enter into and perform its obligations under this Agreement and to act for the Plan and participants in the -4- Plan # '9530" Rv:-rmv:~v.N'r CORPORATION manner contemplated in this Agreement. Execution, delivery, and performance of this Agreement will not conflict with any law, rule, regulation or contract by which the Employer is bound or to which it is a party. 5. ~ar_tic[pation in Certain Proceedings The Employer hereby authorizes RC to act as agent, to appear on its behalf, and to join the Employer as a necessary party in all legal proceedings involving the garnishment of benefits or the transfer of benefits pursuant to the divorce or separation of participants in the Employer Plan. Unless the Employer notifies RC otherwise, Employer consents to the disbursement by RC of benefits that have been garnished or transferred to a former spouse, spouse or child pursuant to a domestic relations order. 6. Co mpo. nsatio n_ and.Bayme~ (a) Plan Administration Fee. The amount to be paid for plan administration services under this Agreement shall be 0.75% per annum of the amount of Plan assets invested in the Trust. Such fee shall be computed based on average daily net Plan assets in the Trust. (b) Account Maintenance Fee. There shall be an annual account maintenance fee of $25.00. The account maintenance fee is payable in full on January I of each year on each account in existence on that date. For accounts established after January 1, the fee is payable on the first day of the calendar quarter following establishment and is prorated by reference to the number of calendar quarters remaining on the day of payment. (c) Annual Plan Fee. There shall be an annual Employer fee of $1,000.00. The annual Plan Fee will be billed evenly on a quarterly basis and is payable within 30 days of receipt of bitling. Plans which are initially established midyear will be billed on a pro-rata basis. (d) Mutual Fund Services Fee. There is an annual charge of 0.25% of assets under management that are held in the Trust's Mutual Fund Series. (e) Model Portfolio Fund Fee. There is an annual charge of 0.10% of assets under management that are held in the Trust's Model Portfolio Funds. (f) Compensation for Management Services to the Trust. Employer acknowledges that in addition to amounts payable under this Agreement, RC receives fees from the Trust for investment management services furnished to the Trust, -5- except that this fee is not assessed in the Mutual Fund Series (g) Payment Procedures. (i) All payments to RC pursuant to Section 6(a), (b), (d) and (e) shall be paid out of the Plan Assets held by the Trust and shall be paid by the Trust. The amount of Plan Assets held in the Trust shall be adjusted by the Trust as required to reflect such payments. (ii) All payments to RC pursuant to Section 6(c) shall be paid directly by Employer, and shall not be deducted from Plan Assets held by the Trust. Employer understands that amounts invested in the Trust are to be remitted directly to the Trust in accordance with instructions provided to Employer by RC and are not to be remitted to RC. In the event that any check or wire transfer is incorrectly labeled or transferred to RC, RC is authorized, acting on behalf of the transferor, to transfer such check or wire transfer to the Trust. 8. Bes ponsibilJly RC shall not be responsible for any acts or omissions of any person other than RC in connection with the administration or operation of the Plan. 9. T~rm This Agreement may be terminated without penalty by either party on sixty days advance notice in writing to the other. 10. Am~.ndmo. nt.q and Adjustments (a) This Agreement may not be amended except by written instrument signed by the parties. (b) The parties agree that compensation for services under this Agreement and administrative and operational arrangements may be adjusted as follows: RC may propose an adjustment by written notice to the Employer given at least 60 days before the effective date of the adjustment and the notice may appear in disclosure documents such as Employer Bulletins and the Retirement Investment Guide. Such adjustment shall become effective unless, within the 60 day period before the effective date the Employer notifies RC in writing that it does not accept such adjustment, in which event the parties will negotiate with respect to the adjustment. -6- Plan # ~-5-343 RETIREMENT CORPORATION (c) No failure to exercise and no delay in exercising any right, remedy, power or privilege hereunder shall operate as a waiver of such right, remedy, power or privilege. 11. Nntic.~.~ All notices required to be delivered under Section 10 of this Agreement shall be delivered personally or by registered or certified mail, postage prepaid, return receipt requested, to (i) Legal Department, ICMA Retirement Corporation, 777 North Capitol Street, N.E., Suite 600, Washington, D.C, 20002-4240; (ii) Employer at the office set forth in the first paragraph hereof, or to any other address designated by the party to receive the same by written notice similarly given. 1 2. Co mpl~te~gmement This Agreement shall constitute the sole agreement between RC and Employer relating to the object of this Agreement and correctly sets forth the complete rights, duties and obligations of each party to the other as of its date. Any prior agreements, promises, negotiations or representations, verbal or otherwise, not expressly set forth in this Agreement are of no force and effect. 13. G n v~erninc~La~ This agreement shall be governed by and construed in accordance with the laws of the State of Florida applicable to contracts made in that jurisdiction without reference to its conflicts of laws provisions. -7- Plan # ,a .a ~r~ RETIREMENT CORPORATION In Witness Whereof, the parties hereto have executed this Agreement as of the Inception Date first above written. Name and Title (Please Print) INTERNATIONAL CITY MANAGEMENT ASSOCIATION RETIREMENT bY:stephen Wm. Nordholt/Datff / Corporate Secretary ~I~C£IVED,IUN~ ! 1996 -8-