Loading...
HomeMy WebLinkAbout12-93 RESOLUTIONr i RESOLUTION NO. 12-93 A RESOLUTION AUTHORIZING THE APPOINTMENT OF BANCOKLAHOMA TRUST COMPANY AS TRUSTEE FOR CITY'S EMPLOYEE RETIREMENT PLAN AND DEFERRED COMPENSATION PLAN AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE EMPLOYEE RETIREMENT SAVINGS TRUST AND NONQUALIFIED DEFERRED COMPENSATION TRUST AGREEMENTS. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: al. That the City Council hereby authorizes the appomtment of BancOklahoma Trust Company as trustee for City's employee retirement plan and deferred compensation plan and authorizes the Mayor and City Clerk to execute the Employee Retirement Savmgs Trust and NonQuahfied Deferred Compensation Trust agreements. A copy of the agreements are attached hereto marked Exhibit "A" and made a part hereof. PASSED AND APPROVED this 5th day of January , 1993. ATTEST. cLta. / Sherry Thomas, City Clerk APPROVED: By: 40,M4 - Fred Hanna, Mayor r • ARTICLE 1 ARTICLE 2 ARTICLE 3 ARTICLE 4 ARTICLE 5 ARTICLE 6 ARTICLE 7 ARTICLE 8 S 4 - CITY OF FAYETTEVILLE EMPLOYEE RETIREMENT SAVINGS TRUST TABLE OF CONTENTS DEFINITIONS PLAN ADMINISTRATOR 2.01 Designation and Acceptance 2.02 Resignation and Removal 2.03 Powers 2.04 Actions 2.05 Expenses 2.06 Claim Procedure 2.07 Indemnification of the Plan Administrator CONTRIBUTIONS 3.01 Duties of Trustee Regarding Contributions 3.02 Right of Employer to Trust Assets 3.03 Mistake in Contribution GENERAL DUTIES OF THE PARTIES CONCERNING TRUST 4.01 Duties of Employer 4.02 Duties of Trustee POWERS AND SPECIFIC DUTIES OF THE TRUSTEE 5.01 Powers 5.02 Restriction on Exercise of Powers 5.03 Third Parties 5.04 Plan Administrator Instructions to the Trustee 5.05 Distributions to Participants 5.06 Investments 5.07 Investment Manager 5.08 Participant Direction of Investments SETTLEMENT OF TRUST ACCOUNTS 6.01 General Records 6.02 Annual Account DURATION AND TERMINATION OF TRUST AGREEMENT; AMENDMENTS 7.01 Duration 7.02 Amendments RESIGNATION OR REMOVAL OF TRUSTEE 8.01 Method • r 3 ARTICLE 9 ARTICLE 10 1 TAXES, EXPENSES AND COMPENSATION TO TRUSTEE 9.01 Manner of Payment MISCELLANEOUS TRUST PROVISIONS 10.01 Governing Law 10.02 Spendthrift Clause 10.03 Binding Effect 10.04 Prohibition Against Reversion 10.05 Litigation 10.06 Headings 10.07 Definitions 1 • 1 CITY OF FAYETTEVILLE EMPLOYEE RETIREMENT SAVINGS TRUST 1 The City of Fayetteville, an Arkansas municipality incorpo- rated under the laws of the State of Arkansas, has previously established the City of Fayetteville Employee Retirement Savings Plan and accompanying Trust Agreement. The Employer's contributions, as invested from time to time, and the earnings and proceeds thereof shall be held in trust by Trustee in the Fund, for the purposes, upon the terms and condi- tions, and subject to the powers conferred on Trustee as set forth in this agreement. The Trustee shall have full power and authority to do all acts necessary to carry out its duties hereunder. Employer intends that the -trust shall qualify under Sec- tion 401(a) of the Internal Revenue Code for tax-exempt status under Section 501(a) of the Internal Revenue Code. The Trustee shall make payments of benefits from the assets of the Trust, if and to the extent such assets are available for distribution, in accordance with the terms of the Plan. ARTICLE 1. PEFINITIONS As used in this document, the following terms shall have the indicated meanings: 1.01. "ACCOUNT" or "ACCRUED BENEFIT" shall mean the market value of the amounts in a Participant's Employer Contribution Account, Employee Contribution Account and Rollover Account. These amounts shall constitute a Participant's entire interest in the Plan, including any income, gains, losses, increases or decreases in market value attributable to the Employer's invest- ment of Employer and Employee Contributions to this Retirement Savings Plan, and further reflecting any distributions to the Participant or the Participant's Beneficiary and any fees or expense charged against such Participant's Account. 1-1 • 1 j j 4 1.02. "ANNIVERSARY DATE" shall mean the last day of each Plan Year. 1.03. "BENEFICIARY" shall mean the person, persons, or other legal entity designated by the Participant who under the Plan becomes entitled to receive a Participant's interest upon his or her death. 1.04. "CODE" shall mean the Internal Revenue Code of 1986, as amended. 1.05. "EMPLOYEE" shall mean any person on the payroll of the Employer whose wages from the Employer are subject to with- holding for the purposes of Federal income taxes and the Federal Insurance Contributions Act. A person employed as an independent contractor shall not be an Employee. 1.06. "EMPLOYEE CONTRIBUTION ACCOUNT" shall mean an indi- vidual account maintained to record each Participant's interest in the Trust Fund attributable to mandatory and voluntary employee contributions, and earnings on such account. 1.07. "EMPLOYER" shall mean City of Fayetteville, Arkansas. 1.08. "EMPLOYER CONTRIBUTION ACCOUNT" shall mean an individual account maintained to record each Participant's interest in the Trust Fund attributable to the Employer's contri- bution under this Plan, and earnings on such account. 1.09. "FUND" OR "TRUST FUND" shall mean all monies, securi- ties and assets held by the Trustee under the Trust established pursuant to this Plan. 1.10. "INVESTMENT OPTIONS" shall mean mutual funds or similar investment vehicles selected by the Plan Administrator into which the Participant directs the investment of his or her Account. 1.11. "PARTICIPANT" shall mean an Employee who shall have met all requirements for participation in the Plan and who has elected to make contributions to this Plan. Each Participant ceases to be such when he or she terminates employment with the Employer, except where pursuant to this Plan the distribution of benefits shall be deferred to a later date. 1.12. "PLAN" shall mean the City of Fayetteville Employee Retirement Savings Plan, as it may be amended from time to time. 1-2 l 1 c 1.13. "PLAN ADMINISTRATOR" shall mean the person or persons or corporation named pursuant to Article 2 to administer the Plan. 1.14. "PLAN YEAR" shall mean the twelve (12) month period ending December 31 of each year. 1.15. "ROLLOVER ACCOUNT" shall mean an individual account maintained to record a Participant's share of the Trust Fund attributable to the Participant's rollover contributions and earnings thereon. 1.16. "TRUST AGREEMENT" shall mean the Agreement between Employer and the Trustee or successor Trustee named under this Trust Agreement. 1.17. "TRUSTEE" shall mean the person or persons or corpo- ration having trust powers so designated by the Employer to serve as Trustee and who, by joining in the execution of this Trust Agreement, signifies his acceptance of this Trust, or any person or persons or corporation having trust powers duly appointed as a successor Trustee. 1-3 1 ARTICLE 2. PLAN ADMINISTRATOR 2.01. DESIGNATION AND ACCEPTANCE. The Employer shall designate a person or persons to serve as Plan Administrator who shall signify their acceptance of this responsibility as a named fiduciary of the Plan and Trust. If more than one person is so designated, the committee so formed shall be known as the Administrative Committee and all references in the Plan and Trust to the Plan Administrator shall be deemed to refer to the Administrative Committee. In the absence of designation of a Plan Administrator, the Employer is hereby designated as the Plan Administrator. The Plan Administrator service of legal process. The Plan Administrator cipant. is hereby designated as agent for the shall not be required to be a Parti - 2.02. RESIGNATION AND REMOVAL. (a) The Plan trative Committee, Employer a written specified therein, after the delivery Administrator, or any member of the Adminis- may resign at any time by delivering to the notice of resignation to take effect on a date which shall not be less than thirty (30) days thereof, unless such notice shall be waived. (b) The Plan Administrator, or any member of the Adminis- trative Committee, may be removed with or without cause by the Employer by delivery of written notice of removal, to take effect at a date specified therein, which shall be not less than thirty (30) days after delivery thereof, unless such notice shall be waived. (c) The Employer, upon receipt of or giving notice of the resignation or removal of the Plan Administrator, shall promptly designate a successor Plan Administrator who must signify accep- tance of this position in writing. In the event no successor is appointed, the Employer will function as the Plan Administrator until a new Plan Administrator has been appointed and has accepted such appointment. (d) A simple majority of the members of the Administrative Committee shall constitute a quorum, and any act by such majority, by vote at a meeting, or in writing without a meeting, shall constitute the action of the Administrative Committee. The 2-1 • • 1 1 r • Administrative Committee shall keep minutes of its meetings, and shall appoint and prescribe the duties of a chairman, and a secretary, who may, but need not be, one of its members. 2.03. POWERS. The Plan Administrator shall have full power and discretion to administer the Plan and to construe and apply all of its provisions. The Plan Administrator's powers and duties, unless properly delegated, shall include, but are not limited to: (a) Compiling and maintaining all records necessary for the Plan, including preparing, filing and furnishing reports and other documents required under the provisions of the Internal Revenue Code; (b) Authorizing the Trustee to make payment of all benefits as they become payable under the Plan; (c) Adopting rules and regulations for the administration of the Plan, not inconsistent with the Plan and the Trust Agree- ment; (d) Engaging such legal; administrative, actuarial, invest- ment, accounting and other professional services as are necessary; (e) Approving mortality tables, interest rates, withdrawal or turnover rates, salary scales and other factors required to be taken into account in connection with any actuarial matters arising under the Plan; (f) Giving written directions to the Trustee concerning investments and other matters, or authorizing others to give such written instructions; (g) Providing periodic reports and other information or data to Participants; (h) Doing and performing such other matters as may be provided for in other parts of this Plan or Trust. 2.04. ACTIONS. No power conferred on the Plan Administrator or the Trustee or retained by Employer shall be exercised in such manner as to cause or create discrimination in favor of highly compensated employees or persons whose principal duties consist of supervis- ing the work of other employees. The Plan Administrator, 2-2 • • • •V • Employer and its legally constituted authority shall be entitled to rely conclusively upon the tables, valuations, certificates and reports furnished by an actuary or accountant employed by the Plan Administrator under this Plan, and/or upon opinions of counsel or other experts; and such members, and each of them, shall be fully protected as to any action taken or allowed by them in good faith and reliance upon any such tables, valuations, certificates, reports or opinions; and all actions taken or allowed by them shall be conclusive upon all persons having or claiming any interest under the Plan. 2.05. EXPENSES. The Employer, or in its absence the Trustee, shall reimburse the Plan Administrator for any necessary or proper expenses incurred in exercising its duties. Except for such reimburse- ment, the Plan Administrator shall not receive any compensation for the administration of the Plan. 2.06. CLAIM PROCEDURE. (a) Any Participant or Beneficiary may file with the Plan Administrator a written statement setting forth a claim for benefits. The written statement shall be signed and set forth the claim in a manner reasonably calculated to bring it to the Plan Administrator's attention. (b) If a claim is wholly or partially denied, notice of the decision shall be furnished by the Plan Administrator to the claimant within ninety (90) days after receipt of the claim. If within such ninety (90) days, the claim has neither been denied in writing nor granted, it shall be deemed denied on the 90th day. (c) Any notice of denial of claim shall be written in a manner calculated to be understood by the claimant and shall include the following: (i) the specific reason or reasons for denial; (ii) specific reference to pertinent plan provisions on which the denial is based; (iii) a description of additional material or informa- tion necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary; and (iv) appropriate information as to the steps to be taken if the claimant wishes to submit the claim for review. 2-3 • • • (d) A claimant may obtain a full and fair review by appeal- ing a denied claim to the Plan Administrator in writing within sixty (60) days after receipt by the claimant of the notice of denial. A claimant may review pertinent documents and may submit issues and comments in writing. The claimant may request review by the Board of Directors of the Employer, in addition to the Plan Administrator. An appeal may be requested or pursued by a duly authorized representative of the claimant. Within sixty (60) days of receipt of a request for review, a written decision shall be rendered. The decision on review shall be in writing and shall include specific reasons for the decision, written in a manner calculated to be understood by the claimant, as well as specific references to the pertinent provisions of the Plan on which the decision is based. 2.07. INDEMNIFICATION OF THE PLAN ADMINISTRATOR. The Plan Administrator shall be indemnified by the Employer and not from the Trust Fund against any and all liabilities arising by reason of any act or failure to act made in good faith pursuant to the provisions of the Plan if the act or failure to act is judicially determined not to be a breach of fiduciary responsibility. The indemnification shall include expenses and attorney's fees reasonably incurred in the defense of any claim relating thereto. 2-4 4 • 4 • ARTICLE 3. CONTRIBUTIONS 3.01. DUTIES OF TRUSTEE REGARDING CONTRIBUTIONS. • • All contributions made under the Plan shall be delivered to the Trustee. The Trustee shall be accountable for all contribu- tions received by it, but shall have no duty to require any contributions to be made to it, or to determine whether contribu- tions received comply with the Plan. 3.02. RIGHT OF EMPLOYER TO TRUST ASSETS. The Employer shall not have a right or claim of any nature in or to the Trust Fund except to require the Trustee to hold, invest, apply and pay such assets in the Trust in accordance with the Trust Agreement for the benefit of the Participants and beneficiaries and for defraying reasonable expense of administer- ing the Plan and Trust as provided for in Section 9.01. Assets of the Trust shall not be subject to claims of Employer's creditors. 3.03. MISTAKE IN CONTRIBUTION. Upon written request from the Employer the amount of a contribution made by reason of a mistake of fact shall be credited to the Employer as an offset to future Employer Contri- butions. The amount to be credited to the Employer is the excess of the amount contributed over the amount which would have been contributed had there not occurred a mistake of fact. The credit to the Employer of the amount involved must be made within one year of the mistake in payment of the contribution, as the case may be. Earnings attributable to the excess contribution may not be credited to the Employer, but losses attributable thereto must reduce the amount to be so credited. If the withdrawal of the amount attributable to the mistake in contribution will cause the balance of the individual account of any Participant to be reduced to less than the balance which would have been in the account had the mistaken amount not been contributed, then the amount to be credited to the Employer shall be reduced so as to avoid such reduction. 3-1 • • 1. • 4. ARTICLE 4. GENERAL DUTIES OF THE PARTIES CONCERNING TRUST 4.01. DUTIES OF EMPLOYER. The Employer shall appoint a Plan Administrator to adminis- ter the Plan and shall certify to the Trustee the names and specimen signature of the Plan Administrator or signatures of members of the Administrative Committee acting from time to time. The Employer shall make monetary contributions to the Trust Fund as the same may be appropriate by due action. The Employer shall keep accurate books and records with respect to its Employees, their service with the Employer, and their annual compensation. 4.02. DUTIES OF TRUSTEE. The Trustee shall hold and invest all monetary contributions received from the Employer (whether from the Employer or withheld from Employees) by the Trustee, and all Trust Funds which are transferred to it as a successor Trustee by the Employer from any other plan qualified under the Code, all of which, together with the income therefrom, shall constitute the Trust Fund. The Trustee shall manage and administer the Trust Fund pursuant to the terms of this Trust Agreement without distinction between principal and income and without liability for the payment of interest thereon. The Trustee shall not have a duty or authority to compute any amount to be paid to the Trustee by the Employer nor shall the Trustee be responsible for the collection of any contribution. The powers, duties and responsibilities of the Trustee shall be limited to those set forth in this Trust Agreement; and nothing contained in the Plan either expressly or by implication, shall be deemed to impose any additional powers, duties or responsibilities on the Trustee. 4-1 • • ARTICLE 5. POWERS AND SPECIFIC DUTIES OF THE TRUSTE 5.01. POWERS. • • • The Trustee shall have full power and authority to invest and reinvest the Trust Fund in any investments permitted by law for the investment of trust funds in the State of Arkansas. The Trustee shall also have full power with respect to any and all assets at any time received or held in the Trust Fund, to do all such acts, take all such proceedings and exercise all such rights and privileges, whether herein specifically referred to or not, as could be done, taken or exercised by the absolute owner thereof, including, without in any way limiting or impairing the generality of the foregoing, the following powers and authority: (a) To retain the same for such period of time as it deems appropriate. (b) To such time or or otherwise sell the same, at either public or private sale, at times and on such terms and conditions as to credit as it may deem appropriate. (c) To consent to or participate in any plan for the reorganization, consolidation or merger of any corporation, the security of which is held in the Trust Fund, and to pay any and all calls and assessments imposed upon the owners of such securi- ties as a condition of their participating therein; and to consent to any contract, lease, mortgage, purchase or sale of property, by or between such corporation and any other corpora- tion or person. (d) To exercise or dispose of any right it may have as the holder of any security to convert the same into another or other securities, or to acquire any additional security or securities, to make any payments, to exchange any security or to do any other act with reference thereto which it may deem advisable. (e) To deposit any security with any protective or reorga- nization committee, and to delegate to such committee such power and authority with relation thereto as it may deem proper, and to agree to pay and to pay out of the Trust Fund such portion of the expenses and compensation of such committee as the Trustee may deem proper. (f) To renew or extend the time of payment of any obliga- tion due or becoming due. 5-1 • • • • • • • • • • (g) To grant options to purchase any asset, including common stocks held in the Trust Fund. (h) To compromise, arbitrate or otherwise adjust or settle claims in favor of or against the Trust Fund, and to deliver or accept in either total or partial satisfaction of any indebted- ness or other obligation any asset, and to continue to hold for such period of time as the Trustee may deem appropriate any asset so received. (i) To exchange any asset for other asset upon such terms and conditions as the Trustee may deem proper, and to give and receive money to effect equality in price. (j) To vote proxies, execute powers of attorney and deliver same to such person or persons as the Trustee may deem proper, granting to such person such power and authority with relation to any securities at any time held for the Trust Fund as it may deem proper. (k) To foreclose any obligation by judicial proceeding or otherwise. (1) To sue or defend in connection with any and all securi- ties or other assets at any time received or held for the Trust Fund with all costs and attorneys' fees in connection therewith to be charged against the Trust Fund. (m) To borrow money, with or without giving security. (n) To cause any securities held for the Trust Fund to be registered and to carry any such securities in the name of a nominee or nominees. (o) To hold such portion of the Trust Fund as the Trustee may deem necessary for the ordinary administration of the Trust Fund in short-term cash equivalents having ready marketability or by depositing the same in a passbook savings account in any bank subject to the rules and regulations governing such deposits, and without regard to the amount of any such deposit. (p) To transfer all or part of the Trust Fund to be commin- gled with other funds in a common trust, mutual fund, similar fund administered by the Trustee or other open-end investment companies. (q) To invest in savings certificates of deposit of the Trustee or Employer is a bank. accounts, money market accounts or Trustee or the Employer, if the 5-2 • • • • 5.02. RESTRICTION ON EXERCISE OF POWERS. • • The powers granted to the Trustee shall be exercised by the Trustee in its sole discretion. The Plan Administrator may, however, at any time and from time to time, by written direction to the Trustee, require the Trustee to obtain the written approval of the Plan Administrator before exercising any such powers. 5.03. THIRD PARTIES. All persons dealing with the Trustee are released from inquiring into the decision or authority of the Trustee and from seeing to the application of any moneys, securities or other property paid or delivered to the Trustee. 5.04. PLAN ADMINISTRATOR INSTRUCTIONS TO THE TRUSTEE. The Trustee shall from time to time receive written direc- tions, orders, requests or instructions from the Plan Administrator or by any such person or persons as may from time to time be designated therefor by the Plan Administrator. The Trustee shall act and shall be fully protected in acting in accordance with such directions, orders, requests and instructions except as otherwise provided under federal or state law. In directing the Trustee to make payments, the Plan Administrator shall follow the provisions of the related Plan and shall not direct that any payment be made, either during the existence or upon discontinuance of the related Plan, which would cause any part of the Trust Fund to be used for or diverted to purposes other than for the exclusive benefit of the Employees of the employer or their Beneficiaries, pursuant to the provisions of such Plan. The Trustee shall be under no liability for any distribution made pursuant to the directions of the Plan Administrator and shall be under no duty to make inquiry as to whether any distribution directed by the Plan Administrator is made pursuant to the provisions of the related Plan and this Section. The Trustee shall not be liable for the proper application of any part of the Trust Fund if distributions are made in accordance with the written directions of the Plan Administrator as herein provided, nor shall the Trustee be responsible for the adequacy of the Trust Fund to meet and discharge any and all payments and liabilities under the related Plan. 5.05. DISTRIBUTIONS TO PARTICIPANTS. The Trustee may make any payment required to be made here- under, by mailing a check for the amount thereof to the person to 5-3 • • • • • whom such payment is to be made, at such address as may have last been furnished the Trustee, or if no such address shall have been so furnished, to such person in care of the Employer at its principal office. The Trustee shall not have an obligation to search for or ascertain the whereabouts of any payee or distributee of the Trust Fund, however, if any payment or distribution to be made from the Trust Fund is not claimed, the Trustee shall notify the plan Administrator of that fact promptly. 5.06. INVESTMENTS. The Plan Administrator shall exercise the power to direct the Trustee with regard to the type and number of investment options available to Participants including the prudent selection of specific pooled investments meeting the requirements of the Code, the category of options including but not limited to such funds as equities, mixed assets, fixed income and money market, the risk or beta associated with each option and the continued suitability of such investments based on financial performance or other criteria related solely to the exclusive benefit of the Participants and beneficiaries. All orders, requests and instructions to the Trustee pursuant to this article shall be in writing and signed by the designee(s) of the Plan Administrator. The Trustee shall act and shall be fully protected in acting in accordance with such orders, requests and instructions except as otherwise provided under state or federal law. 5.07. INVESTMENT MANAGER. The Plan Administrator shall have the right, but shall be under no obligation, to appoint an investment manager or managers to direct the investment of all or of any portion of the assets of the trust fund. The investment manager or managers shall be (a) Registered as an investment advisor under the Invest- ment Advisor's Act of 1940, (b) A bank as defined in that Act, or (c) An insurance company qualified to manage, acquire or dispose of assets of the Plan under the laws of more than one State. Upon appointment, the investment manager shall certify and acknowledge to the Trustee receipt of a copy of the Plan and Trust, that the investment manager is fiduciary with respect to 5-4 • • • • • • such Plan and Trust, and that the investment manager has assumed the duties and responsibilities conferred by the Plan Administrator. 5.08. PARTICIPANT DIRECTION OF INVESTMENTS. (a) Notwithstanding any other provision of this Plan and Trust, the Plan Administrator shall allow a Participant to direct the Trustee in writing to invest the amount credited to the Participant's Account in any one or more investment options from the options established by the Plan Administrator. (b) The Plan Administrator shall adopt rules concerning the number of investment options which a Participant may elect, the percentage of his/her Account which may be invested in each investment option, and procedures for changing investment options. (c) Any investment direction shall be made by the Participant to the Trustee in writing on a form adopted for this purpose by the Plan Administrator. The Trustee shall carry out the Participant's directions in accordance with uniform procedures established by the Plan Administrator. Any direction by the Participant regarding the investment of assets shall remain in effect until another valid written direction has been made by the Participant. (d) The Trustee shall not, at any time after December 31, 1981, invest any portion of a Directed Investment Account in "collectibles" within the meaning of that term as employed in Internal Revenue Code S 408(m). (e) The Trustee shall keep made pursuant to a Participant's Any gains or losses arising from Participant's direction shall be cipant's Account. separate records of investments direction under this Section. an investment made pursuant to a allocated solely to such Parti - (f) The interest of each Participant or beneficiary in their self-directed Account(s) shall be deemed to be personalty only and each Participant or beneficiary shall not have any individual ownership interest in any trust asset. 5-5 • ARTICLE 6. SETTLEMENT OF TRUST ACCOUNTS 6.01. GENERAL RECORDS. • The Trustee shall maintain accurate records and detailed accounts of all investments, receipts, disbursements, and other transactions hereunder, and such records shall be available at all reasonable times to inspection by the Plan Administrator, the Employer (or any authorized representative), Participants or Beneficiaries. The Trustee shall maintain a unit accounting valuation system with which to administer the trust and each Participant's Account and shall, at the direction of the Plan Administrator, submit to the Plan Administrator such valuations, reports or other information as the Plan Administrator may reasonably require. In the absence of fraud or bad faith, the valuation of the Trust Fund by the Trustee shall be conclusive. 6.02. ANNUAL ACCOUNT. Within sixty (60) days following the close of each Plan Year (or following the close of any period as may be agreed upon by the Trustee and the Plan Administrator) the Trustee shall file with the Plan Administrator a written account setting forth a description and fair market value of all securities and other assets purchased and sold, all receipts, disbursements, and other transactions effected by it during such period, listing the fair market value of securities and other assets held by it at the end of such period. The fair market value of the Trust Fund shall be the fair market value of all securities and other assets then held including any cash balance and all income accrued or received during the valuation period. In determining the fair market value, the Trustee may rely upon any data or information it believes to be reliable and which it can obtain with reasonable diligence. The Plan Administrator may approve such account by written notice of approval delivered to the Trustee or by failure to object in writing to the Trustee within sixty (60) days from the date upon which the account was delivered to the Plan Administrator. Upon receipt of written approval of the account, or upon the passage of said period of time, without written objections having been delivered to the Trustee, such account shall be deemed to be approved, and the Trustee shall be released and discharged as to all items, matters and things set forth in such account, as if such account had been settled and allowed by a decree of a court of competent jurisdiction. 6-1 • • ARTICLE 7. • • DURATION AND TERMINATION OF TRUST AGREEMENT: AMENDMENTS 7.01. DURATION. • It is the intention of the Employer that this Trust Agree- ment shall be permanently administered for the benefit of its Employees, and this Trust Agreement is, accordingly, irrevocable. If conditions change, however, this Trust Agreement and the Trust Fund created hereunder may be terminated upon sixty days written notice by the Employer, and upon such termination the Trust Fund shall be distributed by the Trustee as and when directed by the Plan Administrator. From and after the date of termination of this Trust Agreement and the Trust, and until final distribution of the Trust Funds, the Trustee shall continue to have all the powers provided under this Trust Agreement as are necessary and expedient for the orderly administration, liquidation and distri- bution of the Trust Fund. 7.02. AMENDMENTS. This Trust Agreement may be amended at any time by written agreement of the Employer and the Trustee; provided, however, that such Amendment shall not operate to: (a) Subject to Section 3.03, revest the Trust Fund or any part thereof in the Employer; (b) Reduce the then Accrued Benefit or the amount then held for the benefit of any Participant in the Plan, or (c) Cause any part of the Trust Fund (other than such part as is required to pay taxes and administration expenses) to be used for, or diverted to, purposes other than for the exclusive benefit of the Participants and their Beneficiaries. 7-1 • • • • • ARTICLE 8. RESIGNATION OR REMOVAL OF TRUSTEE 8.01. METHOD. The Trustee may resign or may be removed by the Employer. Such resignation or removal may be accomplished at any time upon giving sixty (60) days' written notice. Termination of the Trustee shall not, however, relieve the Employer of the Employer's continuing obligation to make Employer Contributions in accordance with the terms of the Plan. Upon such resignation or removal, the Employer shall appoint a successor Trustee to whom the then Trustee shall transfer all assets of the Trust Fund then held by it. Such successor Trustee shall thereupon succeed to all of the powers and duties given to the Trustee by this Trust Agreement. Within sixty (60) days of such transfer of the trust assets, the resigning or removed Trustee shall render to the Employer an account in the form and manner prescribed for the annual account by Section 6.02. Unless the Employer shall within sixty (60) days after the rendition of such account file with the Trustee written objections thereto, the account shall be deemed to have been approved, and the Trustee shall be released and discharged as to all items; matters and things set forth in such account, as if such account had been settled and allowed by a decree of a court of competent jurisdiction. 8-1 • TAXES. EXPENSES AND COMPENSATION TO TRUSTEE 9.01. MANNER OF PAYMENT. The Trustee shall deduct from and charge against the Trust Fund any taxes paid by it which may be imposed upon the Trust Fund or the income thereof or which the Trustee is required to pay with respect to the interest of any person therein. The Employer shall pay to the Trustee in a mutually agreed timely manner its expenses in administering the Trust Fund and, if the Trustee is not an Employee, a reasonable compensation for its services as Trustee hereunder, at a rate to be agreed upon from time to time. The Trustee shall have a lien on the Trust Fund for such compensation and for any reasonable expenses, including counsel fees, and the same may be withdrawn from the Trust Fund, unless paid by the Employer. Expenses which are directly related to investment transactions such as broker's commission and contract loadings shall be paid out of the assets of the Trust or from a specific investment option account when an expense item is specifically related to that account. 9-1 10.01. GOVERNING LAW. The Trust Agreement shall be administered in the State of Arkansas, and its validity, construction and all rights hereunder shall be governed by the laws of that State. If any provisions of this Agreement shall be invalid or unenforceable, the remain- ing provisions thereof shall continue to be fully effective. 10.02. SPENDTHRIFT CLAUSE. Prior to the time of distribution specified herein, a person entitled to any benefits under this Trust Agreement shall not have right to assign, transfer, hypothecate, encumber, commute or anticipate his or her interest in any benefits under this Trust Agreement, and such benefits shall not in any way be subject to any legal process or levy of execution upon, or attachment or garnishment proceedings against, the same for the payment of any claim against any such person. In no event shall the Trustee pay over any part of the interest in the trust of any Participant or beneficiary to any assignee or creditor of such person. Any attempted assignment or other disposition of interest in the trust shall not be merely voidable but absolutely void. The above paragraph shall not apply to the creation, assign- ment or recognition of any benefit payable with respect to a Participant pursuant to a qualified domestic relations order (as that term is defined in section 414(p) of the Internal Revenue Code). If such order requires, the Plan Administrator shall pay benefits to the alternate payee immediately if the amount payable to the alternate payee is less than $3,500. 10.03. BINDING EFFECT. This agreement shall be binding upon persons who are enti- tled to any benefits hereunder, their heirs and legal representa- tives, and upon the Employer, the Trustee and the respective successors and assigns. 10.04. PROHIBITION AGAINST REVERSION. The Employer shall have no beneficial interest in the Trust Fund or any part thereof, and no part of the Trust Fund shall ever revert or be repaid to the Employer, either directly or 10-1 indirectly, except as set forth in the Plan. The corpus or income of the trust may not be diverted to or used for other than the exclusive benefit of the Participants and their Benefici- aries. 10.05. LITIGATION. Necessary parties to any accounting, litigation, or other proceedings shall include only the Trustee and the Employer. Settlement or judgment in any such cases in which the Employer is duly served or cited shall be binding upon all Participants, Beneficiaries, and their beneficiaries and estate, and upon all persons claiming by, through or under them, to the extent permitted by law. 10.06. HEADINGS. The headings of articles and sections are included solely for convenience of reference, and if there is any conflict between such headings and the text of this Trust Agreement, the text shall control. 10.07. DEFINITIONS. When used herein in their capitalized form, unless otherwise specified, terms shall have the samedefinitions provided in the City of Fayetteville Employee Retirement Savings Plan. IN WITNESS WHEREOF, the Employer and Trustee have signed this Plan and Trust as amended and restated on c, 1993. CITY OF F YETTEVILLE By Its G C't4aZ TRUSTEE: BANK OF OKLAHOMA, N.A. By Im C.....n. VICEfRESIDENT SENIOR TRUST OFFICER w,. 10-2 . CITY OF FAYETTEVILLE NONOUALIFIED DEFERRED COMPENSATION TRUST TABLE OF CONTENTS ARTICLE 1 DEFINITIONS ARTICLE 2 PLAN ADMINISTRATOR 2.01 Designation and Acceptance 2.02 Resignation and Removal 2.03 Powers 2.04 Actions 2.05 Expenses 2.06 Claim Procedure 2.07 Indemnification of the Plan Administrator ARTICLE 3 CONT 3.01 3.02 3.03 3.04 RIBUTIONS Duties of Trustee Regarding Contributions Creditors' Rights Right of Employer to Trust Assets Mistake in Contribution ARTICLE 4 GENERAL DUTIES OF THE PARTIES CONCERNING TRUST 4.01 Duties of Employer 4.02 Duties of Trustee 4.03 Responsibility of Trustee Regarding Payments When Employer is Insolvent ARTICLE 5 POWERS 5.01 5.02 5.03 5.04 5.05 5.06 5.07 5.08 AND SPECIFIC DUTIES OF THE TRUSTEE Powers Restriction on Exercise of Powers Third Parties Plan Administrator Instructions to the Trustee Distributions to Participants Investments Investment Manager Participant Direction of Investments ARTICLE 6 SETTLEMENT OF TRUST ACCOUNTS 6.01 General Records 6.02 Annual Account ARTICLE 7 DURATION AND TERMINATION OF TRUST AGREEMENT; AMENDMENTS 7.01 Duration 7.02 Amendments ARTICLE 8 RESIGNATION OR REMOVAL OF TRUSTEE 8.01- Method ARTICLE 9 TAXES, EXPENSES AND COMPENSATION TO TRUSTEE 9.01 Manner of Payment ARTICLE 10 MISCELLANEOUS TRUST PROVISIONS 10.01 Governing Law 10.02 Spendthrift Clause 10.03 Binding Effect 10.04 Litigation 10.05 Headings The City of Fayetteville, an Arkansas municipality incorpo- rated under the laws of the State of Arkansas, has previously established the City of Fayetteville Nonqualified Deferred Compensation Plan and, by execution of this Trust Agreement, hereby establishes the City of Fayetteville Nonqualified Deferred Compensation Trust, effective 1-S-9 3 The Employer's contributions, as invested from time to time, and the earnings and proceeds thereof shall be held in trust by Trustee in the Fund, for the purposes, upon the terms and condi- tions, and subject to the powers conferred on Trustee as set forth in this agreement. The Trustee shall have full power and authority to do all acts necessary to carry out its duties hereunder. The Trust is intended to be a grantor trust, within the meaning of S 671 of the Code, and shall be construed accordingly. The Trustee shall make payments of benefits from the assets of the Trust, if and to the extent such assets are available for distribution, in accordance with the terms of the Plan. ARTICLE 1. DEFINITIONS As used in this document, the following terms shall have the indicated meanings: 1.01. "ACCOUNT" shall mean the amounts in a Participant's Account maintained to record each Participant's interest in the Plan attributable to elective contributions and income, gains, losses or increases or decreases in market value thereon. The Account, as adjusted for distributions and any fees or expenses charged thereto, shall constitute a Participant's entire interest in the Plan. 1-1 • .l • 1.02. "ANNIVERSARY DATE" shall mean the last day of each Plan Year. 1.03. "BENEFICIARY" shall mean the person, persons, or other legal entity designated by the Participant who under the Plan becomes entitled to receive a Participant's interest upon his or her death. 1.04. "CODE" shall mean the Internal Revenue Code of 1986, as amended. 1.05. "EFFECTIVE DATE" shall mean the 1st day of 1.06. "EMPLOYER" shall mean City of Fayetteville, Arkansas. 1.07. "INVESTMENT OPTIONS" shall mean mutual funds or similar investment vehicles selected by the Plan Administrator into which the Participant directs the investment of his or her Account. 1.08. "PARTICIPANT" shall mean an Employee who shall have met all requirements for participation in the Plan and who has elected to have amounts deferred under this Plan. Each Parti- cipant ceases to be such when he or she terminates his or her employment with Employer, except where pursuant to this Plan the distribution of benefits is deferred to a later date. 1.09. "PLAN" shall mean the city of Fayetteville Nonqualifed Deferred Compensation Plan, as it may be amended from time to time. 1.10. "PLAN ADMINISTRATOR" shall mean the person or persons or corporation named pursuant to Article 2 to administer the Plan. 1.11. "PLAN YEAR" shall mean the twelve (12) month period ending December 31 of each year. 1.12. "TRUST AGREEMENT" shall mean the Agreement between Employer and the Trustee or successor Trustee named under this Trust Agreement. 1.13. "TRUSTEE" shall mean the person or ration having trust powers so designated by th as Trustee and who, by execution of this Trust fies acceptance of the Trust, or any person or corporation having trust powers duly appointed Trustee. 1-2 persons or corpo- s Employer to serve Agreement, signi- persons or as a successor 2.01. DESIGNATION AND ACCEPTANCE. The Employer shall designate a person or persons to serve as Plan Administrator who shall signify their acceptance of this responsibility. If more than one person is so designated, the committee so formed shall be known as the Administrative Committee and all references in the Plan and Trust to the Plan Administrator shall be deemed to refer to the Administrative Committee. In the absence of designation of a Plan Administrator, the Employer is hereby designated as the Plan Administrator. The Plan Administrator is hereby designated as agent for the service of legal process. The Plan Administrator shall not be required to be a Parti- cipant. 2.02. RESIGNATION AND REMOVAL. (a) The Plan Administrator, or any member of the Adminis- trative Committee, may resign at any time by delivering to the Employer a written notice of resignation to take effect on a date specified therein, which shall not be less than thirty (30) days after the delivery thereof, unless such notice shall be waived. (b) The Plan Administrator, or any member of the Adminis- trative Committee, may be removed with or without cause by the Employer by delivery of written notice of removal, to take effect at a date specified therein, which shall be not less than thirty (30) days after delivery thereof, unless such notice shall be waived. (c) The Employer, upon receipt of or giving notice of the resignation or removal of the Plan Administrator, shall promptly designate a successor Plan Administrator who must signify accep- tance of this position in writing. In the event no successor is appointed, the Employer will function as the Plan Administrator until a new Plan Administrator has been appointed and has accepted such appointment. (d) A simple majority of the members of the Administrative Committee shall constitute a quorum, and any act by such majority, by vote at a meeting, or in writing without a meeting, shall constitute the action of the Administrative Committee. The 2-1 Administrative Committee shall keep minutes of its meetings, and shall appoint and prescribe the duties of a chairman, and a secretary, who may, but need not be, one of its members. 2.03. POWERS. The Plan Administrator shall have full power and discretion to administer the Plan and to construe and apply all of its provisions. The Plan Administrator's powers and duties, unless properly delegated, shall include, but are not limited to: (a) Compiling and maintaining all records necessary for the Plan, including preparing, filing and furnishing reports and other documents required under the provisions of the Internal Revenue Code; (b) Authorizing the Trustee to make payment of all benefits as they become payable under the Plan; (c) Adopting rules and regulations for the administration of the Plan, not inconsistent with the Plan and the Trust Agree- ment; (d) Engaging such legal, administrative, actuarial, invest- ment, accounting and other professional services as are necessary; (e) Approving mortality tables, interest rates, withdrawal or turnover rates, salary scales and other factors required to be taken into account in connection with any actuarial matters arising under the Plan; (f) Giving written directions to the Trustee concerning investments and other matters, or authorizing others to give such written instructions; (g) Providing periodic reports and other information or data to Participants; (h) Doing and performing such other matters as may be provided for in other parts of this Plan or Trust. 2.04. ACTIONS. No power conferred on the Plan Administrator or the Trustee or retained by Employer shall be exercised in such manner as to cause or create discrimination in favor of highly compensated employees or persons whose principal duties consist of supervis- ing the work of other employees. The Plan Administrator, 2-2 Employer and its legally constituted authority shall be entitled to rely conclusively upon the tables, valuations, certificates and reports furnished by an actuary or accountant employed by the Plan Administrator under this Plan, and/or upon opinions of counsel or other experts; and such members, and each of them, shall be fully protected as to any action taken or allowed by them in good faith and reliance upon any such tables, valuations, certificates, reports or opinions; and all actions taken or allowed by them shall be conclusive upon all persons having or claiming any interest under the Plan. 2.05. EXPENSES. The Employer, or in its absence the Trustee, shall reimburse the Plan Administrator for any necessary or proper expenses incurred in exercising its duties. Except for such reimburse- ment, the Plan Administrator shall not receive any compensation for the administration of the Plan. 2.06. CLAIM PROCEDURE. (a) Any Participant or Beneficiary may file with the Plan Administrator a written statement setting forth a claim for benefits. The written statement shall be signed and set forth the claim in a manner reasonably calculated to bring it to the Plan Administrator's attention. (b) If a claim is wholly or partially denied, notice of the decision shall be furnished by the Plan Administrator to the claimant within ninety (90) days after receipt of the claim. If within such ninety (90) days, the claim has neither been denied in writing nor granted, it shall be deemed denied on the 90th day. (c) Any notice of denial of claim shall be written in a manner calculated to be understood by the claimant and shall include the following: (i) the specific reason or reasons for denial; (ii) specific reference to pertinent plan provisions on which the denial is based; (iii) a description of additional material or informa- tion necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary; and (iv) appropriate information as to the steps to be taken if the claimant wishes to submit the claim for review. 2-3 (d) A claimant may obtain a full and fair review by appeal- ing a denied claim to the Plan Administrator in writing within sixty (60) days after receipt by the claimant of the notice of denial. A claimant may review pertinent documents and may submit issues and comments in writing. The claimant may request review by the Board of Directors of the Employer, in addition to the Plan Administrator. An appeal may be requested or pursued by a duly authorized representative of the claimant. Within sixty (60) days of receipt of a request for review, a written decision shall be rendered. The decision on review shall be in writing and shall include specific reasons for the decision, written in a manner calculated to be understood by the claimant, as well as specific references to the pertinent provisions of the Plan on which the decision is based. 2.07. INDEMNIFICATION OF THE PLAN ADMINISTRATOR. The Plan Administrator shall be indemnified by the Employer and not from the Trust Fund against any and all liabilities arising by reason of any act or failure to act made in good faith pursuant to the provisions of the Plan if the act or failure to act is judicially determined not to be a breach of fiduciary responsibility. The indemnification shall include expenses and attorney's fees reasonably incurred in the defense of any claim relating thereto. 2-4 ARTICLE 3. CONTRIBUTIONS 3.01. DUTIES OF TRUSTEE All contributions made under the Plan shall be delivered to the Trustee. The Trustee shall be accountable for all contribu- tions received by it, but shall have no duty to require any contributions to be made to it, or to determine whether contribu- tions received comply with the Plan. 3.02. CREDITORS' RIGHTS. The trust assets and all accumulated income shall be subject to the claims of general creditors of the Employer until such time as it is distributed to Participants. No Participant or Beneficiary shall have any secured right with respect to the Trust. 3.03. RIGHT OF EMPLOYER TO TRUST ASSETS. Except as provided in Sections 3.04 and 4.03, the Employer shall not have a right or claim of any nature in or to the Trust Fund except to require the Trustee to hold, invest, apply and pay such assets in the Trust in accordance with the Trust Agreement for the benefit of the Participants and beneficiaries, and as provided in Section 9.01 for defraying reasonable expense of administering the Plan and Trust. 3.04. MISTAKE IN CONTRIBUTION. Upon written request from the Employer the amount of a contribution made by reason of a mistake of fact shall be credited to the Employer as an offset to future Employer Contributions. The amount to be credited to the Employer is the excess of the amount contributed over the amount which would have been contributed had there not occurred a mistake of fact. The credit to the Employer of the amount involved must be made within one year of the mistake in payment of the contribution, as the case may be. Earnings attributable to the excess contribution may not be credited to the Employer, but losses attributable thereto must reduce the amount to be so credited. If the withdrawal of the amount attributable to the mistake in contribution will cause the balance of the individual account of any Participant to be reduced to less than the balance which would have been in the account had the mistaken amount not been contributed, then the amount to be credited to the Employer shall be reduced so as to avoid such reduction. 3-1 , ARTICLE 4. GENERAL DUTIES OF THE PARTIES CONCERNING TRUST 4.01. DUTIES OF EMPLOYER. The Employer shall appoint a Plan Administrator to adminis- ter the Plan and shall certify to the Trustee the names and specimen signature of the Plan Administrator or signatures of members of the Administrative Committee acting from time to time. The Employer shall make monetary contributions to the Trust Fund as the same may be appropriate by due action. The Employer shall keep accurate books and records with respect to its Employees, their service with the Employer, and their annual compensation. 4.02. DUTIES OF TRUSTEE. The Trustee shall hold and invest all monetary contributions received from the Employer by the Trustee, and all Trust Funds which are transferred to it as a successor Trustee by the Employer from existing deferred compensation arrangements with its Employees under plans described in Section 457 of the Code, all of which, together with the income therefrom, shall constitute the Trust Fund. The Trustee shall manage and administer the Trust Fund pursuant to the terms of this Trust Agreement without distinction between principal and income and without liability for the payment of interest thereon. The Trustee shall not have a duty or authority to compute any amount to be paid to the Trustee by the Employer nor shall the Trustee be responsible for the collection of any contribution. The powers, duties and responsibilities of the Trustee shall be limited to those set forth in this Trust Agreement; and nothing contained in the Plan either expressly or by implication, shall be deemed to impose any additional powers, duties or responsibilities on the Trustee. 4.03. RESPONSIBILITY OF TRUSTEE REGARDING PAYMENTS WHEN EMPLOYER IS INSOLVENT. (a) Employer shall be considered insolvent for purpose of this Trust Agreement if (i) Employer is unable to pay its debts as they mature, or (ii) Employer is subject to pending proceeding under the Bankruptcy Code. (b) At all times, the principal and income of the Trust shall be subject to the claims of general creditors of Employer, and at any time the Trustee has actual knowledge, or has deter- mined, that Employer is insolvent, the Trustee shall deliver any 4-1 undistributed principal and income in the Trust to satisfy such claims as a court of competent jurisdiction may direct. The City Board of Employer shall have the duty to inform the Trustee of the Employer's insolvency. If Employer or a person claiming to be a creditor of Employer alleges in writing to the Trustee that Employer has become insolvent, Trustee shall independently determine, within thirty (30) days after receipt of such notice, whether Employer is insolvent and, upon verifying such allegation, Trustee shall discontinue payments of benefits to employees, and shall hold the Trust assets for the Employer's general creditors. Trustee shall resume payment of benefits to employees only after Trustee has determined that Employer is not insolvent. Unless Trustee has actual knowledge of Employer's insolvency, Trustee shall not have a duty to inquire whether Employer is insolvent. Trustee may in all events rely on such evidence concerning Employer's solvency as may be furnished to Trustee which will give Trustee a reasonable basis for making such determination. Nothing in this Trust Agreement shall in any way diminish any rights of employees to pursue their rights as general creditors of Employer with respect to the retirement benefits or otherwise. (c) If the Trustee discontinues payment of benefits from the Trust pursuant to the preceding paragraph and subsequently resumes such payments, the first payment following such discontinuance shall include the aggregate amount of all payments which would have been made to such employee in accordance with the Plan during the period of discontinuance. (d) The Trustee shall be held harmless and will not incur liability for good faith efforts to comply with this Article. 4-2 ARTICLE 5. POWERS AND SPECIFIC DUTIES OF THE TRUSTEE 5.01. POWERS. The Trustee shall have full power and authority to invest and reinvest the Trust Fund in any investments permitted by law for the investment of trust funds in the State of Arkansas. The Trustee shall also have full power with respect to any and all assets at any time received or held in the Trust Fund, to do all such acts, take all such proceedings and exercise all such rights and privileges, whether herein specifically referred to or not, as could be done, taken or exercised by the absolute owner thereof, including, without in any way limiting or impairing the generality of the foregoing, the following powers and authority: (a) To retain the same for such period of time as it deems appropriate. (b) To sell the same, at either public or private sale, at such time or times and on such terms and conditions as to credit or otherwise as it may deem appropriate. (c) To consent to or participate in any plan for the reorganization, consolidation or merger of any corporation, the security of which is held in the Trust Fund, and to pay any and all calls and assessments imposed upon the owners of such securi- ties as a condition of their participating therein; and to consent to any contract, lease, mortgage, purchase or sale of property, by or between such corporation and any other corpora- tion or person. (d) To exercise or dispose of any right it may have as the holder of any security to convert the same into another or other securities, or to acquire any additional security or securities, to make any payments, to exchange any security or to do any other act with reference thereto which it may deem advisable. (e) To deposit any security with any protective or reorga- nization committee, and to delegate to such committee such power and authority with relation thereto as it may deem proper, and to agree to pay and to pay out of the Trust Fund such portion of the expenses and compensation of such committee as the Trustee may deem proper. (f) To renew or extend the time of payment of any obliga- tion due or becoming due. 5-1 . (g) To grant options to purchase any asset, including common stocks held in the Trust Fund. (h) To compromise, arbitrate or otherwise adjust or settle claims in favor of or against the Trust Fund, and to deliver or accept in either total or partial satisfaction of any indebted- ness or other obligation any asset, and to continue to hold for such period of time as the Trustee may deem appropriate any asset so received. (i) To exchange any asset for other asset upon such terms and conditions as the Trustee may deem proper, and to give and receive money to effect equality in price. (j) To vote proxies, to execute powers of attorney and deliver same to such person or persons as the Trustee may deem proper, granting to such person such power and authority with relation to any securities at any time held for the Trust Fund as it may deem proper. (k) To foreclose any obligation by judicial proceeding or otherwise. (1) To sue or defend in connection with any and all securi- ties or other assets at any time received or held for the Trust Fund with all costs and attorneys' fees in connection therewith to be charged against the Trust Fund. (m) To borrow money, with or without giving security. (n) To cause any securities held for the Trust Fund to be registered and to carry any such securities in the name of a nominee or nominees. (o) To hold such portion of the Trust Fund as the Trustee may deem necessary for the ordinary administration of the Trust Fund in short-term cash equivalents having ready marketability or by depositing the same in pass book savings account in any bank subject to the rules and regulations governing such deposits, and without regard to the amount of any such deposit. (p) To transfer all or part of the Trust Fund to be commin- gled with other funds in a common trust, a mutual fund, similar fund administered by the Trustee or other open-end investment companies. (q) To invest in savings accounts, money market accounts or certificates of deposit of the Trustee or the Employer, if the Trustee or Employer is a bank. 5-2 5.02. RESTRICTION ON EXERCISE OF POWERS. The powers granted to the Trustee shall be exercised by the Trustee in its sole discretion. The Plan Administrator may, however, at any time and from time to time, by written direction to the Trustee, require the Trustee to obtain the written approval of the Plan Administrator before exercising any such powers. 5.03. THIRD PARTIES. All persons dealing with the Trustee are released from inquiring into the decision or authority of the Trustee and from seeing to the application of any moneys, securities or other property paid or delivered to the Trustee. 5.04. PLAN ADMINISTRATOR INSTRUCTIONS TO THE TRUSTEE. The Trustee shall from time to time receive written direc- tions, orders, requests or instructions from the Plan Administrator or by any such person or persons as may from time to time be designated therefor by the Plan Administrator. The Trustee shall act and shall be fully protected in acting in accordance with such directions, orders, requests and instructions except as otherwise provided under federal or state law. In directing the Trustee to make payments, the Plan Administrator shall follow the provisions of the related Plan and shall not direct that any payment be made, either during the existence or upon discontinuance of the related Plan, which would cause any part of the Trust Fund to be used for or diverted to purposes other than for the exclusive benefit of the Employees of the employer or their Beneficiaries, pursuant to the provisions of such Plan. The Trustee shall be under no liability for any distribution made pursuant to the directions of the Plan Administrator and shall be under no duty to make inquiry as to whether any distribution directed by the Plan Administrator is made pursuant to the provisions of the related Plan and this Section. The Trustee shall not be liable for the proper application of any part of the Trust Fund if distributions are made in accordance with the written directions of the Plan Administrator as herein provided, nor shall the Trustee be responsible for the adequacy of the Trust Fund to meet and discharge any and all payments and liabilities under the related Plan. 5.05. DISTRIBUTIONS TO PARTICIPANTS. The Trustee may make any payment required to be made here- under, by mailing a check for the amount thereof to the person to 5-3 t whom such payment is to be made, at such address as may have last been furnished the Trustee, or if no such address shall have been so furnished, to such person in care of the Employer at its principal office. The Trustee shall not have an obligation to search for or ascertain the whereabouts of any payee or distributes of the Trust Fund, however, if any payment or distribution to be made from the Trust Fund is not claimed, the Trustee shall notify the plan Administrator of that fact promptly. 5.06. INVESTMENTS. The Plan Administrator shall exercise the power to direct the Trustee with regard to the type and number of investment options available to Participants including the prudent selection of specific pooled investments meeting the requirements of the Code, the category of options including but not limited to such funds as equities, mixed assets, fixed income and money market, the risk or beta associated with each option and the continued suitability of such investments based on financial performance or other criteria related solely to the exclusive benefit of the Participants and beneficiaries. All orders, requests and instructions to the Trustee pursuant to this article shall be in writing and signed by the designee(s) of the Plan Administrator. The Trustee shall act and shall be fully protected in acting in accordance with such orders, requests and instructions except as otherwise provided under state or federal law. 5.07. INVESTMENT MANAGER. The Plan Administrator shall have the right, but shall be under no obligation, to appoint an investment manager or managers to direct the investment of all or of any portion of the assets of the trust fund. The investment manager or managers shall be (a) Registered as an investment advisor under the Invest- ment Advisor's Act of 1940, (b) A bank as defined in that Act, or (c) An insurance company qualified to manage, acquire or dispose of assets of the Plan under the laws of more than one State. Upon appointment, the investment manager shall certify and acknowledge to the Trustee receipt of a copy of the Plan and Trust, that the investment manager is fiduciary with respect to 5-4 such Plan and Trust, and that the investment manager has assumed the duties and responsibilities conferred by the Plan Administrator. 5.08. PARTICIPANT DIRECTION OF INVESTMENTS. (a) Notwithstanding any other provision of this Plan and Trust, the Plan Administrator shall allow a Participant to direct the Trustee in writing to invest the amount credited to the Participant's Account in any one or more Investment Options established by the Plan Administrator. (b) The Plan Administrator shall adopt rules concerning the number of investment Options which a Participant may elect, the percentage of his/her Account which may be invested in each Investment Option, and procedures for changing investment options. (c) Any investment direction shall be made by the Participant to the Trustee in writing on a form adopted for this purpose by the Plan Administrator. The Trustee shall carry out the Participant's directions in accordance with uniform procedures established by the Plan Administrator. Any direction by the Participant regarding the investment of assets shall remain in effect until another valid written direction has been made by the Participant. (d) The Trustee shall keep made pursuant to a Participant's Any gains or losses arising from Participant's direction shall be cipant's Account. separate records of investments direction under this Section. an investment made pursuant to a allocated solely to such Parti- (e) The interest of each Participant or beneficiary in their self -directed Account(s) shall be deemed to be contractual only and each Participant or beneficiary shall not have any individual ownership interest in any trust asset. 5-5 • ARTICLE 6. SETTLEMENT OF TRUST ACCOUNTS 6.01. GENERAL RECORDS. The Trustee shall maintain accurate records and detailed accounts of all investments, receipts, disbursements, and other transactions hereunder, and such records shall be available at all reasonable times to inspection by the Plan Administrator, the Employer (or any authorized representative), Participants or Beneficiaries. The Trustee shall maintain a unit accounting valuation system with which to administer the trust and each Participant's Account and shall, at the direction of the Plan Administrator, submit to the Plan Administrator such valuations, reports or other information as the Plan Administrator may reasonably require. In the absence of fraud or bad faith, the valuation of the Trust Fund by the Trustee shall be conclusive. 6.02. ANNUAL ACCOUNT. Within sixty (60) days following the close of each Plan Year (or following the close of any period as may be agreed upon by the Trustee and the Plan Administrator) the Trustee shall file with the Plan Administrator a written account setting forth a description and fair market value of all securities and other assets purchased and sold, all receipts, disbursements, and other transactions effected by it during such period, listing the fair market value of securities and other assets held by it at the end of such period. The fair market value of the Trust Fund shall be the fair market value of all securities and other assets then held including any cash balance and all income accrued or received during the valuation period. In determining the fair market value, the Trustee may rely upon any data or information it believes to be reliable and which it can obtain with reasonable diligence. The Plan Administrator may approve such account by written notice of approval delivered to the Trustee or by failure to object in writing to the Trustee within sixty (60) days from the date upon which the account was delivered to the Plan Administrator. Upon receipt of written approval of the account, or upon the passage of said period of time, without written objections having been delivered to the Trustee, such account shall be deemed to be approved, and the Trustee shall be released and discharged as to all items, matters and things set forth in such account, as if such account had been settled and allowed by a decree of a court of competent jurisdiction. 6-1 ARTICLE 7. DURATION AND TERMINATION OF TRUST AGREEMENT: AMENDMENTS 7.01. DURATION. It is the intention of the Employer that this Trust Agree- ment shall be permanently administered subject to Section 3.02 and 4.03, for the benefit of its Employees, and this Trust Agreement is, accordingly, irrevocable. If conditions change, however, this Trust Agreement and the Trust Fund created hereunder may be terminated upon sixty days' written notice by the Employer, and upon such termination the Trust Fund shall be distributed by the Trustee as and when directed by the Plan Administrator. From and after the date of termination of this Trust Agreement and the Trust, and until final distribution of the Trust Funds, the Trustee shall continue to have all the powers provided under this Trust Agreement as are necessary and expedient for the orderly administration, liquidation and distri- bution of the Trust Fund. 7.02. AMENDMENTS. This Trust Agreement may be amended at any time by written agreement of the Employer and the Trustee; provided, however, that such Amendment shall not operate to: (a) Subject to Section 3.02, 3.04 or 4.03, revest the Trust Fund or any part thereof in the Employer; (b) Reduce the then Account or the amount then held for the benefit of any Participant in the Plan, or (c) Cause any part of the Trust Fund (other than such part as is required to pay taxes and administration expenses) to be used for, or diverted to, purposes other than for the exclusive benefit of the Participants and their Beneficiaries. In order to maintain the status of the Plan as an eligible deferred compensation plan under Section 457 of the Code or to comply with other applicable laws, or to maintain the status of the Trust as a grantor trust under Section 671 of the Code, an amendment may be retroactive. 7-1 8.01. METHOD. The Trustee may resign or may be removed by the Employer. Such resignation or removal may be accomplished at any time upon giving of sixty (60) days' written notice. Termination of the Trustee shall not, however, relieve the Employer of the Employer's continuing obligation to pay deferred compensation to Employees in accordance with the terms of the Plan. Upon such resignation or removal, the Employer shall appoint a successor Trustee to whom the then Trustee shall transfer all assets of the Trust Fund then held by it. Such successor Trustee shall there- upon succeed to all of the powers and duties given to the Trustee by this Trust Agreement. Within sixty (60) days of such transfer of the trust assets, the resigning or removed Trustee shall render to the Employer an account in the form and manner prescribed for the annual account by Section 6.02. Unless the Employer shall within sixty (60) days after the rendition of such account file with the Trustee written objections thereto, the account shall be deemed to have been approved, and the Trustee shall be released• and discharged as to all items, matters and things set forth in such account, as if such account had been settled and allowed by a decree of a court of competent jurisdiction. 8-1 ARTICLE 9. TAXES. EXPENSES AND COMPENSATION TO TRUSTEE 9.01. MANNER OF PAYMENT. The Trustee shall deduct from and charge against the Trust Fund any taxes paid by it which may be imposed upon the Trust Fund or the income thereof or which the Trustee is required to pay with respect to the interest of any person therein. The Employer shall pay to the Trustee in a mutally agreed timely manner its expenses in administering the Trust Fund and, if the Trustee is not an Employee, a reasonable compensation for its services as Trustee hereunder, at a rate to be agreed upon from time to time. The Trustee shall have a lien on the Trust Fund for such compensation and for any reasonable expenses, including counsel fees, and the same may be withdrawn from the Trust Fund, unless paid by the Employer. Expenses which are directly related to investment transactions such as broker's commission and contract loadings shall be paid out of the assets of the Trust or from a specific investment option account when an expense item is specifically related to that account. 9-1 . II f a I S ARTICLE 10. 10.01. GOVERNING LAW. The Trust Agreement shall be administered in the State of Arkansas, and its validity, construction and all rights hereunder shall be governed by the laws of that State. If any provisions of this Agreement shall be invalid or unenforceable, the remain- ing provisions thereof shall continue to be fully effective. 10.02. SPENDTHRIFT CLAUSE. No Participant shall have the right to assign, transfer, hypothecate, encumber, commute or anticipate his or her interest in the Plan and such benefits shall not in any way be subject to any legal process or levy of execution upon, or attachment or garnishment proceedings against, the same for the payment of any claim against any such person. In no event shall the Trustee pay over any part of the interest in the trust of any Participant or beneficiary to any assignee or creditor of such person. Any attempted assignment or other disposition of interest in the trust shall not be merely voidable but absolutely void. However, payments may be made to a spouse or former spouse pursuant to a domestic relations order, so long as the Partici- pant would be entitled to a distribution at such time. 10.03. BINDING EFFECT. This agreement shall be binding upon persons who are enti- tled to any benefits hereunder, their heirs and legal representa- tives, and upon the Employer, the Trustee and the respective successors and assigns. 10.04. LITIGATION. Necessary parties to any accounting, litigation, or other proceedings shall include only the Trustee and the Employer. Settlement or judgment in any such cases in which the Employer or any other participating Employer is duly served or cited shall be binding upon all Participants, Beneficiaries, and their beneficiaries and estate, and upon all persons claiming by, through or under them, to the extent permitted by law. 10-1 1 4 4 10.05. HEADINGS. The headings of articles and sections are included solely for convenience of reference, and if there is any conflict between such headings and the text of this Trust Agreement, the text shall control. IN WITNESS WHEREOF, the Employer and Trustee have signed this Plan and Trust on S' , 1993,. CITY OF FAYETTEVILLE By Its TRUSTEE: 0 BANK OF OKLAHOMA,N.A. VICE 10-2 IDENT ft6 SENIOR TRUST OFFICER FA ETTE`"I LLE THE CITY of FAYfTTFVILLE, ARKANSAS DEPARTMENTAL CORRESPOND TO: Distribution •/ FROM: Fred Hanna, Mayor y/✓ DATE: January 18, 1993 YP�Wen u� . ,I`. IZq5 SUBJECT: Designation of Retirement Plan Committee Pursuant to Article 14 of the Employee Retirement Savings Plan and Article 13 of the Deferred Compensation Plan, the following employees are hereby appointed to perform the functions of the Plan Administrative Committee. Don Bailey: Chair Dorothy Straub: Secretary Randy Allen: Member Marilyn Cramer: Member Tom Mowry: Member Sid Norbash: Member Bert Rakes: Member The Committee shall have the responsibility, authority and discretion to fully administer and apply all provisions of the plan as prescribed by Section 14.03 of the Employee Retirement Savings Plan and Section 13.03 of the Deferred Compensation Plan. DISTRIBUTION LIST MAYOR: CITY ATP+ORNEY: CITY CLERK: CROSSON, Kevin JACKSON, Mickey LITTLE, Alett MAYES, Hen WATSON, Richard BRADLEY, Gerald COOPER, Jerry CRAIN, Shea DOSS, Marion FREDERICK, Dale JONES, Casey PEREZ, Yolanda ROBERTS, Eldon STOCKER, Kathy TUBERVILLE, Shelly Fred D. Hanna Jerry E. Rose Sherry L. Thomas Director of Public Works Fire Chief Director of Planning Director of Administrative Services Chief of Police Assistant Chief of Police Staff Administrator Cable Administrator Assistant Fire Chief Airport Manager Prosecuting Attorney Internal Auditor Assistant Chief of Police Dispatch Manager Hot Check Collection Coordinator ADMINISTRATIVE SERVICES BAILEY, ❑on Personnel Director BATES, Feggy Purchasing Manager COOK, Melvin (Wes) Data Processing Manager CRAMER, Marilyn Accounting Manager CROSSON, Sharon Water & Sewer Service Superintendent DAHLINGER, Harold Facilities Superintendent DAViS, Steve Budget Coordinator HORN, Olivia (Lib) Animal Services Supervisor HUDDLESTON, Scott Financial Analyst OESTREICH, William Fleet Maintenance Superintendent STOCKALYER, Dena Head Court Clerk SWAIN, Brian Asst. to the Admin. Services Director Vacant SIMCO, .;an WOOD, Freeman ALLEN, Bandy BUNN, Don CLARK, Dale COCHRAN, Don FIELDS, Greg FRANKLIN, Perry HARRISON, Linda ROHRICH, Jake ZOTTI, Cheryl Senior Planner Community Development Director inspection superintendent Street Superintendent City Engineer Parks and Recreation Director Water & Sewer Maintenance Manager Solid Waste Superintendent Traffic Superintendent Library Director Waste Water Treatment Plant Public Works Analyst