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HomeMy Public PortalAbout04-064 RESOLUTION 04-064 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARSON, CALIFORNIA, ESTABLISHING A SEPARATE TRUST AGREEMENT BY AND BETWEEN THE CITY OF CARSON AND ING NATIONAL TRUST WHEREAS, the City of Carson has adopted the Plan which is intended to meet the requirements of Section 457(6) and Section 414(d) of the Internal Revenue Code of 1986, as amended ("Code"), for the benefit of the employees therein described; and WHEREAS, the City of Carson has established or desires to establish a trust constituting a part of the Plan, pursuant to which assets are held to provide for the funding of and payment of benefits under the Plan; and WHEREAS, the Authorized Representative is identified as such in the Plan, or identified as an authorized representative pursuant to a procedure specified in the Plan, and has the power and authority to manage and control the assets of the Plan; and WHEREAS, the Authorized Representative has elected to invest the assets of the Plan by means of an investment program (the "Program") offered by ING Life Insurance and Annuity Company ("ILIAC") through its broker-dealer affiliate ING Financial Advisors, LLC ("the Broker"), and in connection therewith, has appointed ILIAC as recordkeeper to the Plan and the Broker to provide brokerage services to the Plan; and WHEREAS, the Authorized Representative wishes to appoint the Trustee as a trustee to the Plan solely with respect to Program assets in accordance with the terms and conditions of this Agreement; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Carson does hereby authorize and direct the Authorized Representative of the City of Carson and the Trustee, each intending to be legally bound, to agree to hereby adopt and execute the attached adoption agreement on behalf of the City of Carson. A copy of this resolution, the agreement, and any attachments thereto shall be on file in the office of the City Clerk. PASSED,APPROVED AND ADOPTED THIS 4T" DAY OF MAY 2004. \10 MAYOR ATTEST: it 2 c� CITY CLERK APPROVED AS TO FORM:I- CITY ATTO-RNU Resolution No. 04-064 Page 2 of 2 STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) ss. CITY OF CARSON ) i I, Helen S. Kawagoe, City Clerk of the City of Carson, California, do hereby certify that the whole j number of members of the City Council is four; that the foregoing resolution, being Resolution No. 04-064 � as duly and regularly adopted by said Council at a regular meeting duly and regularly held on the 4th day of May, 2004, and that the same was passed and adopted by the following vote: AYES: COiJNCIL MEMBERS: Mayor Dear, Santarina, and Raber NOES: COiJNCIL MEMBERS: None ABSTAIN: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: Calas City Clerk, City of Carson,California 1 457 PLAN 'CRUST AGREEMENT by and between T"ne City of Carson and ING National Trint ss7(b) MooI [INSERT PLAN SPONSOR NAME]457 PLAN TRUST AGREEMENT THIS TRUST AGREEMENT, effective as of the day of 2004 between [The City of Carson] "Employer")in its corporate capacity and as the Sponsor of the[City of Carson ING Deferred.Compensation Plan(the "Plan"),.acting by.and through Lmkic Acosta, as tie Section[Slof the document to act on the Employer's.behalf Plan matters(the."Authorized Re presentative") � atnd ING National TnLst(the"Tnistee"). , WI'I'IVESSETH: WHEREAS, the Employer has adopted the Plan which is intended to meet the requirements of Section 457(b) and Section 414(d) of the Internal Revenue Code of 1986, as amended ("Code"), for the benefit of the employees therein described;and WHEREAS, the Employer has established or desires to establish a trust constituting a part of the Plan, pursuant to which assets are Geld to provide for the funding of and payment of benefits under the Plan;and WHEREAS,the Authorized Representative is identified as such in the Plan,or identified as an authorized representative pursuant to s procedure specified in the Plan, and has the power and authority to manage and control the assets of the Plan;and WHEREAS, the Authorized Rep wutative has elected to invest the assets of the Plan by means of as investment program (the "Program") offered by ING Life Insurance and Annuity Company ("ILIAC")through its broker-dealer affiliate ING Financial Advisors, LLC (the `Broker"), and in connection therewith, has appointed ILIAC as a recordkeeper to the Plan and the Broker to provide.brokerage services to the Plan;and WHEREAS,, the Authorized Representative wishes appoint the Trustee as a trustee to the Plan solely with respect to Program assets in accordance with the terms and conditions of this Agreement; NOW,THEREFORE,the Authorized Representative,and the Trustee,each intending to be legally bound, agree as follows: SECTION 1-ESTABLISHMENT AND OPERATION OF TRUST l.1 ADwintment and Acceptance of Trustee. The Authorized Representative hereby establishes with the Trustee a trust consisting of such sum s of money and such other property acceptable to the Trustee as shall from time to time be paid or delivered to the Trustee,and hereby appoints the Trustee as trustee with respect to the assets invested through the Program and held pursuant to this Agreement as such assets shall exist from time to time(the "Fund"). For purposes of this Agreement, Plan assets invested through the Program in aself-directed brokerage account shall be considered to be part of the Fund. The Fund steall be held by the TAwtee in trust and dealt with in accordance with the provisions of this Agreement The Fund shall not include any interest in any direct or indirect investments--in real property, leaseholds, mineral interests or participations in a real-estate investment trust or corporation organized under Section SO 1(c)or 501(cx25)of the Code. The Trustee shall have no responsbility for any property until it is received and accepted by the Trustee, or for any property of the Plan not delivered to the Trustee and accepted by the Tnntee to be a part of the Fund.. The Trustee hereby accepts its appoiotmeat, acimowledges that it assumes the duties established by this Agreement, and agrees to be bound by the terms contained herein. 1.2 Trustee RoMnsibilities. The Trustee shall receive and hold the assets of the Fund on behalf of Plan participants and beneficiaries in accordance with the terms of this Agreement The duties of the Trustee hereunder are as a directed trustee and the Trustee shall act solely in accordance with the instructions of the Authorized Representative or Authorized Parties in accordance with Sections 2.2 and 23 of this Agreement ("Authorized Instructions"). Nothing in this Agreement is intended to give the Trustee any discretionary responsibility,authority or control with respect to the management or administration of the Plan or the management 2 Of the assets of the P Further,the Tnotee is not a party to the Plan and bas no duties or responsibilities otter than those that may be expressly contained in this Agreement, In any case in which a provision of this A&-w-U-JU-M conflicts with any provision in the Plan,this Agreement shalt control. 1.3 Exclusive Benefit Except as may be permitted by law, by the terms of the Plan, or by this Agreement, at no time prior.to the satisfaction of all liabilities with respect to participants and their beneficiaries � under.the Plan'shall any part of the Fund be used for or diverted to any purpose other tfian for the exclusive benefit'' . of the pArticipants-ind their beneficiaries.- Th­e assets of the Fund shall be held for the exclusive purp' os'es of'- 4 providing benefits to participants of the Plan and their beneficiaries and defraying the reasonable expenses of � administering the Plan and the Trust 1.4 Standard of Care. The Trwtee shall discharge its dirties under this Agreement with the care and skill under the cvcumstaaces then prevailing thai a prudent man acting in a like capacity and familiar with such matters would LLse in the conduct of an enterprise of a like character and with Hke aims. Ile Tnmtee shall not be liable for any acts or omissions of another person other than the negligent acts or omissions of its own employees and agents. The Trustee shall not be responsible for the title,validity or genuineness of any property or evidence of title thereto received by it or delivered by it pursuant to this Agreement and shall be held harmless in acting upon any notice, request, direction, instruction, consent, certification or other instrument believed by it to be genuine and delivered by the proper party or parties. 1.S Contnbutions. Ile Trustee shall receive contributions or other amounts for deposit to the Plan that are delivered to the Trustee for deposit to or for the benefit of the Plea. The Trustee shall transmit contributions i rece ved to the Broker for the purpose of settling the Plan's investment transactions, The Authorized Representative shall have sole duty and responsibility for the determination of the accuracy or sufficiency of the contributions to be made under the Plan and for the transmittal of contributions or other amounts to the Plan. The Trustee shall have no duty or responsibility(a)to determine the amounts to be contributed to or transferred to the Plan or on behalf of the participants of the Plan, (b)to collect any contributions or transfers to the Plan or to enforce the collection of any such contributions or transfers, or(c) for the adequacy of amounts deposited to the Fund to meet and discharge any of the Plan's liabilities. 1.6 Return of Contributions. Notwithstanding any other provision of this Agreement contributions made by the Authorized Representative based upon mistake of fact may be returned to the Employer within one year of such contribution,provided that the return of contributions under this Section 1.6 may not violate any provision of the Plan. The Trustee shall return contributions under this Section 1.6 only in accordance with Authorized instructions and the Tn=ee shall have no duty to determine whether the return of such contributions is permitted under this Section 1.6 and the Plan. 1.7 Di The Trustee shall make distributions and disbursements from the Fund solely in accordance with Authorized Instructions. The Authorized Representative agrees that the Tnwee shall not have any responsibility or duty under this Agreement to see to the proper application of any payment, to determine the tax effect of any payment,or to determine whether a distribution or disbursement to any.person paid in accordance with Authorized Instructions is appropriate under the terms of the Plan_and applicable law. 1.8 Compliance with Law. 'Ilia Trust is intended to be tax-exempt under Section 50 l(a)of the Code.' The Employer represents that it intends that the plan constitute an eligible deferred compensation plan under Section 457(b)and Section 4140 of the Code. The Employer and the Authorized Representative each agree to immediately notify the Trustee if the Plan ceases to be so eligible. SECTION 2-AUTHORITIES 2.1 Authority to Execute Agreement The Authorized Representative hereby certifies that it has the power and authority to eater into this Agreement on behalf of the Plan. The person(s)signing below on behalf of the Authorised Representative warrant,as individuals,that each is an authodzed representative of the Employer and the Authorized Representative,all signatures are genuine and the persons indicated are authorized to sign. 3 21 Authorizxd.b&a. The Authorized Representative shall furnish the Trustee month a written list of the names, signattres,extent of authority of all ptrsoos authorized to direct the Trugee and otherwise act on behalf of the Employer under the terms of this Alpewe r meat as"Authorized Parties," The Authorized Representative hereby confirms to the Trustee that ALIAC and the Broker are Authorized Parties,for purposes of making distributions and disbursements from the Fund to pay Plan benefits and settling Plan investment transactions, ivety. The Trustee shall be endded to rely, on and shall be fully protected in acting upon directions instructions, and any information provided by.in Authodzed Party until notified in writing by_the Representative of a change of the identity'o' r' extent of authority of an Authorized Party,* 2.3 Authorized instructions. All directions and instructions to the Trustee from an Authorized Party ("Authorized Instructions")shall be in writing, transmitted by mail(including electronic mail)or by facsimile. The Trustee shall be entitled to rely on and shall be fully protected in acting in accordance with all such directions and instructions which it reasonably believes to have been given by an Authorized Party and in failing to act in the absence thereoL SECTION 3-POWERS AND DUTIES 3.1 General Powers and Duties of Trustee, In administering the Trust,the Trustee shall be specifically authorized to: (a) In accordance with Authorized Instuctions, receive, hold and maintain custody of, and disburse Plan assets; (b) Hold securities or other Plan property in book entry form or through another agent or nominee, including without limitation in an omnibus account arrangement, provided that the Trustee's records clearly indicate that such securities or other property are held for the exclusive benefit of the Plan and its participants and beneficiaries; (c) Appoint domestic agents, sub-tnistees, sub-custodians or depositories (including affiliates of the Trustee) as to part or all of the Fund,except that the indicia of ownership of any asset of the Fund shall not be held outride the jurisdiction of the District Courts of the United States unless in compliance with the standards of Section 404(b)of ERISA and regulations thereunder; (d) Collect income payable to and dividends or other distributions due to the Fund and sign on behalf of the Plan any declarations, affidavits, and certificates of ownership required to collect income and principal payments; (e) Collect proceeds from assets of the Fund that may mature or be called; M Until Authorized Instructions are received, hold the assets of the fund uninvested, or invest the assets of the Fund in bank accounts of any bank,and the Trustee may retain any earnings on such deposits as part of its compensation for services hereunder, (g) Submit or cause to be submitted to the Authorized Representative all information received by the Trustee regarding ownership rights pertaining to property held in the Fund; (h) Exercise all voting rights relating to securities held in the Fund as directed by the Authorized Representative; provided that, with respect to securities allocated to the accounts of Plan participants, unless otherwise directed by the Authorized Representative in writing,the Tnmtee shall mail to each Plan participant who has shares of such securities credited to his or her account a copy of the notice and all proxy solicitation materials together with a voting instruction form for return to the Trustee or its designee,and the Trustee shall vote the shares as directed by each participant and shall not vote shares for which it has not received instructions from a participant. Unless the Authorized Representative instructs the Trustee to vote shares not voted by participants,the Trustee shall not be liable and shall be held harmless for not voting such shares. 4 F (i) C4rnmeixe or defend suits or legal proceedings and represent the Fund in all wits or k%W PrOCOOdinP In WY court or before any other body or tribunal as the Trustee shall deem necessary to protect the Fund, and the Trustee sba11 be indemnified by the Employer and the Plan against atl expenses and liabilities sustained in connection with such action; V) Employ suitable agents and legal counsel and, as pact of its reimbursable expenses under 4his _Agreement, p reasooabie compensation and.expenses. 'Me Trustee shall be entitled to rely on and may act upon advice of counsel on ail matters,and,if the use of such counsel is authorized by the Authorized Rep' resentative, *. , . ., the Trustee shall be without liability for any action reasonably taken or omitted pursuant to such advice; (k) Make, execute and deliver any and all documents, agreements or other instruments in writing as are necessary or desirable for the accomplishment of any of the powers and duties in this Agreement;and (1) Generally take any action, whether or not expressly authorized, which the Trustee may deem necessary or desirable for the fulfillment of its duties hereunder. SECTION 4-INVESTMENT OF THE FUND 4.1 InXegumnt of the Fund. The assets of the Fund shall be invested and reinvested among the investments relaxed by the Authorized Representative. The Authorized Representative shall have sole responsibility for the invx;bt neat and reinvesflment of the a4sets of the Fund,except to the extent that the Plan permits participants to instruct the Authorized Representaive with respect to the investment of their individual accounts among investment options selected by the Authorized Representative for the Plan. The Trustee shall have no duty or responsibility fa(a) sela�ting or providing advice with respect to the selection of any investment options offered under the Plan,(b)determining or reviewing any securities or other property purchased for or held by the Plan,or(c) providing.advice,with respect to,the purchase, retention,.redemption,or sale of any securities or other property for the Plan. In'the event the Authorized,Representative has selected particular investment options offered through the Program into which Ptah assets previously invested with another investrnent provider are to be placed(a procedure known as"mapping"),the Trustee shall bear no duty or responsibility for determining the suitability of the Program investment offerings selected for this purpose. 4.2 investment Transactions. Under the plan services agreement,the Broker receives instructions from the Authorized Representative or, if the Ptah so provides, from the Plan participants, and executes plan4evel trade instructions. All i transactions for the Fund shall be effected by the Broker and the Trustee's sole responsibility therefor shall be to, solely in accordance with Authorized Instructions, (a) receive and bold title to securities purchased on the Plan's behalf,(b)cooperate with the Broker in the transfer of securities or other property of the Plan in connection with the redemption or sale of securities or other property,and(c)collect from the Broker proceeds received upon such redemptions or sales. SECTION S-REPORTING AND RECORDKEEPING 5.1 Records and Reports. The Trustee shall keep accurate records of all amounts received by and disbursed from' the Fund and the investments and other transactions of the Fund forit least six years following the date of such tiansaction. The Trustee shall provide a report of the assets of the Fund to the Authorized Representative from time to time, but at least annually. The Tnwee may rely on the fair market value of the property of the Fund as reported by ALLAC and the Trustee shall be fully protected in relying on such values. 5.2 Review of Reports. It within ninety (90) days after the Trustee mails to the Autborizsd Representative a statement with respect to the Fund,the Authorized Representative has not given the Trustee written notice of any exception or objection thereto,the statement shall be deemed to have been approved,and in such case, the Trustee shall not be liable for any.matters in such statements. The Authorized Representative or its agent,upon giving prior written notice to Trustee, shall have the right at its own expense to inspect the Trustee's books and records directly relating to the Fund during normal business hours. Trustee shall be reimbursed its actual costs for making such books and records available for inspection, 5 5.2 Non-Fund Assee. The duties of the TnLstee shall be limited to the assets Geld in the Fund,and the Trustee shall have no duties with respect to assets held by any other person including,without limitation, any other trustee for the Plan. The Employer hereby agrees that the Trustee shall not serve as,and shall not be deemed to be,a co-dvstee under the circumstances,and shall have no co-fiduciary liability for any other person or tnutee. aECTION 6• ATION ENSFg&TAXE&� 6.1 Compensation and E x,�enses. The Trustee shall be entitled to compensation for services under this � Agreement as set forth in Exhibit A. The Authorized Representative acknowledges that the Trustee may increase � the amount of compensation on an annual basis with sixty (60) days' prior written notice to the Authorized Representative. The Trustee shall also be entitled to receive as part of its compensation any amounts earned under Section 3.1(x}and to reimbursement for expenses incurred by it in the discharge of its duties under this Agreement in accordance with Section 3.1. T"ne Trustee is authorized to charge and collect from the Fund any and aU such fees and expenses,unless the Authorized Representative objects within 30 days'of receiving notice of the Trustee's intent to collect its fees and expenses from the Fund.. 6.2 Tax Obligations. To the extent an Authorized Party has provided necessary information to the Tntstee, the Trustee may use reasonable efforts to assist such Authorized Party to notify the Employer or the Audwrized Repmbsentative(as appropriate)of any responsibility for payment of taxes,withholding,certification and reporting requirements, claims for exemptions or refund, interest, penalties and other related expenses of the Fund ("Tax Ob igatiow"). Notwithsasding the foregoing,the Trustee shall have no responsibility or liability for any Tax Obligations now or hereafter imposed on the Employer or the Fund by any taxing authorities, domestic or foreign, except as provided by applicable law. To the extent the Trustee is responsble under any applicable law for payment of any Tax Obligation on behalf of the Fund or the Trust,the Authorized Representative shall cause the appropriate Authorized Party to inform the Trustee- of all Tax Obligations, shall direct the Trustee with respect to the perforrnanee of such Tax.Obligations, and shall provide the Trustee with all information.required by the Trustee to meet such Tax..Obligations,,. . 6.3 Indemnification. The Employer,and to the extent permitted by taw, the Plan, shall indemnify and hold harmless the Trustee from all claims, liabilities, losses, damages and expenses, including reasonable attorney's fees and expenses (including Tax Obligations) incurred by the Trustee in connection with this Agreement, except as a result of the Trustee's own negligence or willful misconduct. This indemnification shall survive the termination of this Agreement. 6.4 Force Maieure. The Trustee shall not be responsible or liable for any losses to the fund resulting from nationalisation,expropriation,devaluation,seizure,or similar action by any governmental authority,de facto or de jure; or enacmient, promulgation, imposition or enforcement by any such governmental authority of currency restrictions, exchange controls, levies or other charges affecting the Fund!s property; or acts of war, terrorism, insurrection or revolution;or acts of God;or any other similar event beyond the control of the Trustee or its agents. Ibis Section shall survive the termination of this Agreement. SECTION 7-AMENDMENTS TERMINATION.RESIGNATION,REMOVAL 7.1 Amendment. This Agreement may be amended only by written agreement signed by the parties hereto. 7.2 Removal or Resignation of Trustee. The Trustee may be removed with respect to all or part of the Fund upon receipt of sixty(60)days'written notice from the Authorized Representative. The Trustee may resign as � Tnistee hereunder upon sixty(60)days' written notice delivered to the Authorized Representative. In the event of such removal or resignation, the successor trustee will be appointed by the Authorized Representative, and the - retiring Trustee shall transfer the Fund, less such amounts as may be reasonable and necessary to cover its compensation and direct expenses including but not limited to,a pro-rata share of the fees descnbed in Section 6.1. In the event the Employer fails to appoint a successor trustee within sixty(60)days of receipt of written notice of resignation, the Trustee reserves the right to seek the appointment of a successor trusts from a coat of competent jurisdiction. The Employer shall indemnify the Tnstee from any costs incurred by the Trustee in seeking such 6 appoindnent. The Trustee shaU have no duties, responsibilities or liability with respect to the acts or omissions of any successor frusta. 73 Merger or Consolidation of Trustee. Any entity into which the Trustee may be merged or with which it may be consolidated, or any entity resulting from any merger or consolidation to which the Trustee is a party, or any entity succeeding the trust business of the Trustee, shall become the wccessor of the Trustee 'I hereunder,without the execution or filing of any instrument or tbe.performance of any.further act on the part of the parties hereto. I 7.4 Plan Termination. Upon termination of the Plan, the Trustee shall distribute all assets then constituting the Fund, less any fees and expenses payable from the Fund, pursuant to the instructions of the Authorized Representative. The Trustee shall be entitled to assume that such distributions are in full compliance with and not in violation of the terms of the Plan or any applicable law. 7.5 Rw.R;M Not Transfeffed. The Trustee reserves the right to retain such property as is not suitable for distribution or transfer at the time of the termination of the Plan or this Agreement and shall hold such property for the benefit of those persons or other entities entitled to such property until such time as the Trustee is able to make distribution. The Employer shall indemnify the Trustee from any costs incurred by the Trustee for retaining the property until it can be distributed. Upon the appointment and acceptance of a successor trustee, the Trustee's sole duties shall be those of a custodian with respect to the property not transferrod. SECTION 8-ADDITIONAL PROVISIONS 8.1 Assignment or Alienation. Except as may be provided by law,the Fund shall not be subject to any form of attachment, garnishment, sequestration or other actions of collection afforded creditors of the Employer, participants or beneficiaries under.the Plan..The Trustee shall.not recognize any assignment or alienation of benefits unless an Authorized Instruction' is-received. 8.2 Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Connecticut,to the extent not preempted by Federal law. 8.3 Necessary Parties. The Trustee reserves the right to seek a judicial or administrative determination course to its proper cour of action under this Agreement. Nothing contained herein will be construed or interpreted to deny the Trustee, the Authorized Representative, or the Employer the right to have the Trustee's account judicially determined. To the extent permitted by law,only the Trustee,the Authorized Representative and the Employer shall be necessary parties in any application to the courts for an interpretation of ttus Agreement or for an accounting by the Trustee,and no participant under the Plan or other person having an interest in the Fund shall be entitled to any notice or service of process. Any final judgment entered in such an action or proceeding shall, to the extent permitted by law, be conclusive upon all persons. The Employer shall indemnify the Trustee for any costs incurTed by the Trustee in seeking such judgment. 8.4 Notices. All notices and other communications hereunder shall be in writing and shall be sufficient i.f delivered by hand or if sent by tetefax or mail(including electronic mail),postage prepaid,addressed:. (a) If to the Trustee: Catherine M.Krokus President ING National Trust 151 Farmington Ave.,TNA i Hartford,Connecticut 06 156 7 (b) if the Authorised Repo 0 MA Ve: Jjgkie Acosta f The parties may by like notice, designate any future or different address to which subsequent notices shall be sent. Any notice shall be deemed given when received. 8.5 No Third Party Beneficiaries. The provisions of this Agreement are intended to benefit only the parties hereto,their respective successors and assigns,and participants and their beneficiaries under the Plan. There are no other third party beneficiaries'. 8.6 Execution in Counterparts. This A cement may be executed in any number of counterparts,each of which shall be deemed an original,and said counterparts shall constitute but one and the same instrument and may be sufficiently evidenced by one counterpart. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the effective date set forth above. City of Carson ING National Trust By: By: -Na- - Ak"... e f Authorized Representative] . . . . Name: ackie Acosta Name: Title: Admin. Svcs. General Manager Title: 8 i EXHIBIT A FEES In consideration for services rendered according to the teens of this A greement, the Trustce shall �. be.paid according to following fee schedule:. For calendar year 2004: 5750 The trust fee will bep' 'ai'ed by'ELIAC Field Office. For calendar years after 2004: X750 The trust fee will be paid by DLIAC Field Office. 9