1997-02368-Resolution No. 97-009 Recorded 1/23/19979"7-013%8.0 .;, i
REVIEWED
LEG KCL (".
BEFORE THE BOARD OF COUNTY COMMISSIONERS FOR DESCHUTES COUNTY, OREGON
A Resolution Adopting Amendment
No. 1 to Plan Document, National
Association of Counties Deferred
Compensation Program, and Authorizing
Signature on Establishment of
Custodial Account and Life Insurance
Transfer -Authorization.
RESOLUTION 97-009
WHEREAS, Deschutes County adopted the Plan Document as an
amendment to its deferred compensation program for the National
Association of Counties on May 10, 1989; and
WHEREAS, pursuant to House Bill 3448, commonly known as the
"Minimum Wage Bill," it is necessary to make certain changes in the
plan document; and
WHEREAS, it is necessary to establish a custodial account and life
insurance transfer authorization; now, therefore,
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS FOR DESCHUTES
COUNTY, OREGON, as follows:
Section 1. That Amendment No. 1 to Plan Document, attached hereto
as Exhibit A, is hereby adopted.
Section 2. That Debbie Legg is hereby authorized and directed to
sign the establishment of custodial account and life insurance transfer
authorization on behalf of the County.
DATED this 22nd day of January, 1997.
BOARD OF COUNTY COMMISSIONERS
F DESCH S COU#TY, OREGON
N C E jSCHIhNGEN, Ch 'r
AT T:
Recording secretary
1 - RESOLUTION 97-009 (1-22-97)
L. NIPPER,
=, 'v1 E;s
ssioner
I
EXHIBIT A
NATIONAL ASSOCIATION OF COUNTIES
DEFERRED COMPENSATION PROGRAM
THE DEFERRED COMPENSATION PLAN FOR PUBLIC EMPLOYEES
AMENDMENT #1 TO PLAN DOCUMENT
WHEREAS EMPLOYER executed the above referenced Plan Document; and
WHEREAS, effective January 1, 1997, EMPLOYER desires to amend the Plan
Document as follows:
1. The first sentence of Article I, Section 1.01(n) is hereby deleted and replaced
with the following:
SEPARATION FROM SERVICE means Separation From Service as used in IRC
Section 402 (d)(4) (A) (iii), and on account of the PARTICIPANT'S death or
retirement.
2. ARTICLE Il, Section 2.04 is hereby deleted and replaced with the following:
2.04. Except as provided in Section 2.05, the maximum deferred amount under
the PLAN for the PARTICIPANTS taxable year shall not exceed the lesser of (a)
$7,500 (as adjusted by the Secretary of the Treasury) or (b) 33 1/3% of the
PARTICIPANTS Includible Compensation as provided in IRC Section 457.
3. ARTICLE II, Section 2.06 is amended by replacing "402(a)(8)" with "402(e)(3)"
and by adding, in the third line "or (k)" following "402(h)(1)(B)".
4. Article II is hereby amended by the addition of the following Section:
2.07 Notwithstanding the preceding provisions of Article II, a PARTICIPANT who
is entitled to reemployment pursuant to the terms of the Uniformed Services
Employment and Reemployment Act of 1994 (USERRA) may defer an additional
amount under the PLAN as provided in that act for the years of his or her service
in the uniformed services (as defined in USERRA). Any such deferrals will not be
subject to the limits set forth above in the year in which deferred, but will be
subject to the limits for the year to which such deferrals relate.
5. ARTICLE VII, Section 7.02 is hereby deleted and replaced with the following:
7.02. The EMPLOYER shall use the PARTICIPANTS or Beneficiary's investment
specifications so as to determine the value of the deferred account maintained
DC -2946-B
with respect to the PARTICIPANT as if the deferred amounts had been invested
according to such specifications; provided, however, that only upon approval
from EMPLOYER and Administrator may a PARTICIPANT allocate an amount
greater than 25% of the total deferrals of the PARTICIPANT to a life insurance
option.
6. ARTICLE VII, Section 7.04 is hereby deleted and replaced with the following:
7.04. All assets of the PLAN, including all deferred amounts, property and rights
purchased with deferred amounts, and all income attributable to such deferred
amounts, property or rights, shall (until made available to the PARTICIPANT or
Beneficiary) be held in a trust, custodial account or annuity contract described
in IRC Section 457(g) for the exclusive benefit of the PARTICIPANTS and their
beneficiaries.
7. ARTICLE VIII, Section 8.01 is hereby deleted and replaced with the following:
8.01. Commencement of Distributions: The PARTICIPANT may elect the time at
which distributions under the PLAN are to commence by designating the month
and year during which the first distribution is to be made. The earliest distribution
commencement date that may be elected by the PARTICIPANT shall be the
earlier of:
(a) thirty-one (31) days after Administrator is notified of
PARTICIPANT'S separation from service or the date the PARTICIPANT
separates from service, whichever is later, or
(b) the date on which the PARTICIPANT attains age 70 1/2 or
terminates deferrals under this PLAN, whichever is later.
At least thirty (30) days prior to the date on which a PARTICIPANT is eligible for
benefits to commence under the PLAN, the EMPLOYER shall notify the
ADMINISTRATOR in writing, mailed to the ADMINISTRATOR'S Home Office, of the
PARTICIPANTS eligibility.
The PARTICIPANT shall make such election no later than the earlier of:
(a) thirty (30) days following the date Administrator is notified of
PARTICIPANT'S separation from Service, or
(b) thirty (30) days following attainment of age 70.
DC -2946-B
0156--1315
Benefits payable to the PARTICIPANT will be the equivalent of the total benefits
that would have been created had the deferred amounts been invested as
specified by the PARTICIPANT.
The date elected for commencement of distributions ("the Elected
Commencement Date") shall be not later than the Mandatory
Commencement Date, which shall be the later of:
(a) April 1 of the calendar year following the calendar year in
which the PARTICIPANT attains age 70 1/2: or
(b) April 1 of the calendar year following the calendar year in
which the PARTICIPANT separates from service with the EMPLOYER.
The Elected Commencement Date may be postponed, once, following the
PARTICIPANT's separation from service, if the PARTICIPANT files an election
designating a new date for benefits to begin, prior to the original Elected
Commencement Date. Failure to file an election with the Administrator within
the appropriate time period will result in the Administrator beginning distributions
one hundred and eighty (180) days fol;owing the date the PARTICIPANT
separated from service or the date the Administrator is notified of PARTICIPANT'S
separation from service, whichever is later.
8. ARTICLE VIII, is hereby amended by the addition of the following Section:
8.05 In service distribution - $3,500 or less: If the total amount payable to a
PARTICIPANT under the PLAN is $3,500 or less, the PARTICIPANT may elect to
receive such amount before separation of service (or the PLAN may distribute
such amount without the PARTICIPANTS consent) if -
(a) no amount has been deferred under the PLAN with respect to
such PARTICIPANT during the two year period ending on the date
of distribution, and
(b) there has been no prior distribution under the PLAN to such
PARTICIPANT to which this Section applied.
9. ARTICLE X is hereby amended by the addition of the following Section:
10.07 All assets of the Plan, including all deferred amounts, property and rights
purchased with deferred amounts, and all income attributable to such deferred
amounts, property or rights, other than assets held in annuity contracts, will be
held in a custodial account described in IRC Section 457(g). Such amounts will
be held in a common fund with the assets of other Section 457 Plans. Such
DC -2946-B
0156-1316
custodial account shall be held by the custodian thereof for the exclusive
benefit of the PARTICIPANTS and Beneficiaries of this and other Section 457 Plans
and the assets may not be diverted to any other use. The Administrator shall be
the agent of the EMPLOYER for purposes of providing direction to the custodian
of the custodial account from time to time as to the investment of the funds
held in the account, the transfer of assets to or from the account and all other
matters. A copy of the Section 457 Custodial Account Agreement which
describes the duties of the custodian is attached hereto as Exhibit A and is
incorporated herein by reference.
DC -2946-B
0156-131i
SECTION 457 CUSTODIAL ACCOUNT AGREEMENT
THIS CUSTODIAL AGREEMENT is made this �`� day of September, 1996 by and
between PUBLIC EMPLOYEES BENEFIT SERVICES CORPORATION duly organized and
existing under the laws of the State of Delaware, or its successor, (the "Principal") on behalf of
certain public employers and deferred compensation plans described herein and BANK ONE
TRUST COMPANY, N.A., a national banking association organized and existing under the
national banking laws of the United States (the "Custodian") for the exclusive benefit of the
participants and their beneficiaries of those certain deferred compensation plans described herein.
WITNESSETH:
WHEREAS, Section 457 of the Internal Revenue Code of 1986 (the "Code") governs the tax
treatment for deferred compensation plans of state and local governments ("Plan" or "Plans");
WHEREAS, Section 457 of the Code has been amended to require that assets and income of any
such Plan be set aside in trust for the exclusive benefit of participants and their beneficiaries;
WHEREAS, Principal, pursuant to this amendment of the Code desires as administrator and on
behalf of such Plans and for their eligible employers ("Employer" or "Employers") to open a
custodial account the assets of which shall be held by Custodian (as defined in Section 401(f) of
the Code) for the exclusive benefit of participants and the beneficiaries thereof of such Plans;
WHEREAS, Custodian has all requisite power and authority to maintain and hold such assets in
a custodial capacity for the exclusive benefit of such Plan participants and is a bank within the
meaning of Section 408(n) of the Code;
NOW THEREFORE, in consideration of the mutual promises and covenants contained herein,
the parties agree as follows:
1. INTENTION. The parties hereto intend that this agreement comply with Section 457(g)
of the Code and this Agreement shall be interpreted consistently with said Section.
2. NAME. The name of this custodial account shall be the Section 457 Custodial Account
(the "Account").
3. ADOPTION OF THIS AGREEMENT. Each Employer who desires that the Plan which
it sponsors become a part of the custodial account created under this Agreement for the benefit of
the participants thereof and their beneficiaries shall adopt the terms of this Agreement in the
form agreed to by the Principal and the Custodian.
56-318
4. CUSTODIAN'S DUTIES. The Custodian shall hold in its nam � the nam1 its
nominee, for the benefit of the participants and beneficiaries of the Plans whose Employers have
adopted this Agreement, various life insurance contracts, savings plans and mutual fund shares
delivered to it by Principal as directed from time to time by the Employers maintaining such
Plans, such direction to be provided to Custodian through Principal Custodian shall only be
responsible for custody thereunder of cash, securities and property delivered to it from Principal
and then only while the cash, securities and property are held in and as part of the Account.
Custodian shall have no obligation to review any direction to determine whether Principal's
direction complies with Section 457 of the Code. Such assets, including any earnings accruing
on them, shall be held solely for the participants and beneficiaries of the Plans and may not be
diverted to any other use. Principal shall not give Custodian any direction which would cause
any assets to be assigned by any Plan, other than as a transfer to another investment option under
such Plan that satisfies the requirements of Section 457 of the Code. Such contracts, savings
plans and mutual fund shares shall be held as a single account by Custodian. Custodian shall
hold the contracts, savings plans or mutual fund shares until termination of the custodial account
as described herein or upon cancellation of the contracts or mutual fund shares as directed by a
Plan's employer through Principal or until transferred to a successor pursuant to Section 9 hereof.
Custodian and Principal may enter into other agreements concerning the administration of the
assets held under this Custodial Agreement.
The Principal and Custodian acknowledge and agree that all such assets held in the custodial
account shall be for the account and risk of Plan participants and beneficiaries, and any losses
with such assets shall be borne solely by the Plan participants and beneficiaries thereunder. The
Custodian shall have no discretion whatsoever with respect to the management, disposition or
investment of the assets held in this Account.
5. LIMITATIONS ON DUTIES OF .CUSTODIAN. The duties and obligations and rights
of Custodian shall only be such as are specifically set forth in this Custodial Agreement, as it
may from time to time be amended, and no implied duties or obligations or rights shall be read
into this Custodial Agreement against the Custodian. Custodian is entitled to conclusively rely
upon the direction of the Principal. In particular, Custodian shall have no duty to monitor the.
value of any investment or to make any investment decisions with respect to the property held
hereunder. Custodian shall not be required to follow any direction of an Employer which is not
provided through Principal, such grant of authority by Employer to Principal to provide direction
to Custodian is the subject of other agreements to which Custodian is not a party.
As long as and to the extent that it exercises reasonable care, Custodian 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.
Custodian shall be entitled to rely upon and may act upon advice of counsel (who may or may
not be counsel for the Principal) on all matters, and shall be without liability for any action
reasonably taken or omitted pursuant to such advice.
01
6. RECORDS AND REPORTS. Custodian shall create and maintain recor APating to its
activities and obligations under this Agreement. All such records shall remain property of the
Custodian. Custodian shall have no duty to maintain any records concerning the balance in any
particular Plan or in any Plan participant's account, that being the duty of the Principal.
7. LIABILITY LIMITATIONS. Custodian shall not be responsible or liable for any failure
or delay in the performance of its obligations under this Agreement arising our of or caused
directly or indirectly by circumstances beyond its reasonable control, including without
limitation: acts of God, earthquakes, fires, floods, wars, civil or military disturbance, sabotage,
epidemics, riots, interruptions, loss or malfunction of utilities or communications service,
accidents, labor disputes, acts of civil or military authority, governmental action, or inability to
obtain labor, material, equipment or transportation.
In no event shall the Custodian or its directors, officers, agents and employees be held liable for
any special, indirect, punitive or consequential damages resulting from any action taken or
omitted to be taken by it or them hereunder or in connection herewith even if advised of the
possibility of such damage.
8. COMPENSATION AND EXPENSES. Custodian shall be entitled to receive
compensation for its services and for reimbursement of its out of pocket expenses at such times
and in such amounts as the Custodian and the Principal may, from time to time, agree. Such fees
and expenses will be paid by Principal and only should Principal become delinquent will fees be
paid out of the funds held under this Agreement as authorized by the Principal.
9. RESIGNATION, REMOVAL and SUCCESSION OF CUSTODIAN. The Custodian or
Principal may terminate the Custodial Account agreement without assigning any cause, in
writing, effective not less than ninety (90) days after receipt thereof, by the other party. No such
resignation or removal shall be effective until a successor Custodian has been appointed by the
Principal and has accepted such appointment and all assets in the Account have been duly
transferred to such successor Custodian. If the Principal fails to name a successor Custodian
within ninety (90) days after receipt of a written resignation from the Custodian, the Custodian
shall have the right to commence an action in the nature of an interpleader (or other appropriate
action) and seek to deposit the property in a court of competent jurisdiction..
In case of the appointment of a successor Custodian, all of the powers, rights and duties of the
Custodian named herein shall survive and continue in the successor Custodian and every
successor Custodian shall succeed to, take and have all the powers, rights and duties which
belonged to or were held by its predecessor.
10. ACCOUNTINGS. Custodian will provide to Principal statements with respect to the
Account as a single account which will not reflect the interest of each section 457 Plan. Principal
may approve any account or statement. Custodian shall have the right to have its accounts
settled by judicial proceedings, if it so elects, in which event only Custodian and Principal shall
6156-1320
be necessary parties. Custodian may, however, in its discretion, join as defendant any other
person or persons who may have or claim an interest therein. Except as otherwise provided
under applicable law, only Principal may require Custodian to provide an accounting and only
Principal may institute an action or a proceeding against Custodian. Custodian shall have no
duty to provide any accountings or reports to any employer.
It. VOTING. Custodian shall promptly deliver or mail to the Principal all forms of proxies
and all notices of meetings affecting or relating to Securities held in any custodial account
established. Upon receipt of proper instructions, Custodian shall execute and deliver such
proxies or other authorizations may be required. Neither Custodian nor its nominee shall vote
any Securities or execute any proxy to vote the same or give any consent to take any other action
with respect thereto absent proper instructions from Principal.
Custodian shall release and deliver such Securities and take any other action as directed by the
Principal, with respect to dividends, splits, distributions, spin-offs, puts, calls, conversions,
redemptions, tenders, exchanges, mergers, reorganizations, rights, warrants or any other similar
activity relating to the Securities.
12. TERNIINATION. This Custodial Account shall terminate the earlier of the date on which
Principal determines that this Custodian Account no longer is necessary in light of any statutory
or regulatory change to the set aside requirement set forth in Section 457(8) of the Code or a date
one hundred days after the termination or redemption date of the last contract or mutual fund
share held hereunder. Any assets remaining at the time of such termination or cancellation shall
be returned to Principal, or be transferred to another party(ies) upon direction from the Principal.
13. GOVERNING LAW. The provisions of and validity and construction of this Custodial
Agreement shall be governed by and construed in accordance with the laws of the State of Ohio
and the Custodial Account created hereunder shall be administered in accordance with such laws.
14. SUCCESSORS and ASSIGNS. This Agreement and the rights and duties hereunder
shall not be assignable by either of the parties hereto except Custodian may assign this
Agreement to any of its affiliates.
15. AMENDMENTS. This Custodial Agreement may be amended from time to time by an
instrument in writing executed solely by duly authorized officers of the Principal and Custodian.
Amendments may be executed without the consent of any Plan, Employer or Plan participant:
16. NO THIRD PARTY BENEFIT. This Agreement is intended for the exclusive benefit of
the parties to this Agreement, the participating Plans, the participants in such Plans and their
beneficiaries, and their respective successors and assigns, and nothing contained in this
Agreement shall be construed as creating any rights or benefits in or to any other party.
0
0156-1321
17. DISPUTE RESOLUTION AND ARBITRATION. Any controversy or claim arising out
of or relating to this Agreement, or the breach of the same, shall be settled through consultation
and negotiation in good faith and a spirit of mutual cooperation. However, if those attempts fail,
the parties agree that any misunderstandings or disputes arising from this Agreement shall be
decided by arbitration in Columbus, Ohio which shall be conducted, upon request by either party,
before three (3) arbitrators (unless both parties agree on one (1) arbitrator) designated by the
American Arbitration Association (the "AAA"), in accordance with the terms of the Commercial
Arbitration Rules of the AAA and, to the maximum extent applicable, the United States
Arbitration ACE (Title 9 of the United States Code), or if such Act is not applicable, any
substantially equivalent state law. The parties further agree that the arbitrator(s) will decide
which party must bear the expenses of the arbitration proceedings.
18. MEDIA RELEASES. No media releases of any kind to publicize the Account or
relationship between the Employer, Custodian or Principal are permitted. No party shall use any
trade name trademark, service mark or any other information which identifies the other party in
its sales, marketing and publicity activities, including but not limited to interviews with
representatives of any written publication, television station or network, or radio station or
network. The Custodian and Principal may by joint action waive the restrictions of this Section;
an Employer may seek a waiver by submitting a request through Principal.
IN WITNESS WHEREOF, the parties hereto have caused this Custodial Agreement to be
SIGNED, SEALED and DELIVERED at Columbus, Ohio on the date set forth above.
PRINCIPAL:
PUBLIC EMPLOYEES BENEFIT SERVICES
CORPORATION
01
By: 5a
Its: Pnehiden t
CUSTODIAN:
BANK ONE TRUST MPANY, N.A.
By: ....�
Its:
5
i
ESTABLISHMENT OF CUSTODIAL ACCOUNT AND LIFE INSURANCE
TRANSFER AUTHORIZATION
WHEREAS, the undersigned Employer is the owner of one or more life insurance
policies issued to it by Commonwealth Life Insurance Company, Kentucky
Commonwealth Life Insurance Company, Peoples Security Life Insurance Company, or
Providian Life and Health Insurance Company (the "Policies") in connection with the
deferred compensation plan it maintains for its employees (the "Plan") pursuant to
Section 457 of the Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, as a result of an amendment to the Code, all assets and income of the Plan
must be held in a trust, custodial account or annuity contract; and
WHEREAS, the Plan has been amended to reflect the changes required by the
amendment to the Code; and
WHEREAS, the Employer desires to adopt the Code Custodial Account (the "Custodial
Account") to hold assets, other than annuity contracts, which will provide benefits for the
participants and beneficiaries; and
WHEREAS, as a result of the amendment to the Code, the Employer desires to transfer
ownership of the Policies to Bank One Trust Company, N.A. (the "Custodian") for the
exclusive benefit of the Plan's participants and beneficiaries;
NOW THEREFORE, the undersigned Employer hereby accepts the Code Custodial
Account Agreement, adopts the Custodial Account, authorizes transfer of ownership to
the Policies to the Custodian, and designates the Custodian as the beneficiary to the
Policies. DESCHUTES COUNTY* OR
DEBBIE L.EGG
PERSONNEL
1130 NW HARRIMAN
EMPLOYER: BEND* OR
9770L
BY:
TITLE:
DATE:
DC -2948-A
0150-1323
ENDORSEMENT
Group Flexible Fund Retirement Contract
(TSP 556)
Group Fixed Fund Retirement Contract
(TSP 557)
Attached to and made a part of this contract by
NATIONWIDE LIFE INSURANCE COMPANY
ONE NATIONWIDE PLAZA
COLUMBUS, OH 43216
WHEREAS the above -referenced group annuity contract was issued to the Owner ("the Owner") by
NATIONWIDE LIFE INSURANCE COMPANY ("the Company") and the Company wishes to modify this
contract pursuant to Section 6.02 and to comply with the Small Business Job Protection Act of 1996 ('the
Act"). Section 1448 of the Act amends Section 457 of the Internal Revenue Code of 1986, as amended
("Code"), regarding plan assets of governmental plans. This Endorsement shall be effective on January 1,
1997 or the Effective Date of the Contract, whichever is later.
NOW, THEREFORE, the Company hereby endorses the Contract as follows:
1. The Contract Schedule is revised by deleting the following language:
Owner of Contract: DESCHUTES COUNTY, OR
and replacing it with the following language:
Owner of Contract: DESCHUTES COUNTY, OR, for the benefit of the Participants and
Beneficiaries of the NACO Plan.
2. All references in the Contract or endorsements to the Contract regarding ownership of the Contract,
the ownership of Plan assets, exercise of contractual rights, or any other provision affected by the
Act, shall be subject to the following provisions:
a) The Owner of the Contract shall hold all assets and income of the Plan for the exclusive
benefit of the Plan's Participants and beneficiaries. Contractual rights and privileges may
be exercised by the Owner to the extent such rights are not specifically reserved in the Plan
for Participants as a group or as individuals. The Owner may not take any action
inconsistent with the rights of the Plan's Participants.
b) This Contract shall be treated as a trust for purposes of the Code under rules similar to the
rules under Section 401(f) of the Code.
A4. E, (� (etL X__e$04
SECRETARY PRESIDENT
APO -3033
ENDORSEMENT
Group Flexible Fund Retirement Contract
(TSP 556)
Group Fixed Fund Retirement Contract
(TSP 557)
Attached to and made a part of this contract by
NATIONWIDE LIFE INSURANCE COMPANY
ONE NATIONWIDE PLAZA
COLUMBUS, OH 43216
WHEREAS the above -referenced group annuity contract was issued to the Owner ("the Owner") by
NATIONWIDE LIFE INSURANCE COMPANY ("the Company") and the Company wishes to modify this
contract pursuant to Section 6.02 and to comply with the Small Business Job Protection Act of 1996 ("the
Act"). Section 1448 of the Act amends Section 457 of the Internal Revenue Code of 1986, as amended
("Code"), regarding plan assets of governmental plans. This Endorsement shall be effective on January 1,
1997 or the Effective Date of the Contract, whichever is later.
NOW, THEREFORE, the Company hereby endorses the Contract as follows:
1. The Contract Schedule is revised by deleting the following language:
Owner of Contract: DESCHUTES COUNTY, OR
and replacing it with the following language:
Owner of Contract: DESCHUTES COUNTY, OR, for the benefit of the Participants and
Beneficiaries of the NACO Plan.
2. All references in the Contract or eridorsements to the Contract regarding ownership of the Contract,
the ownership of Plan assets, exercise of contractual rights, or any other provision affected by the
Act, shall be subject to the following provisions:
a) The Owner of the Contract shall hold all assets and income of the Plan for the exclusive
benefit of the Plan's Participants and beneficiaries. Contractual rights and privileges may
be exercised by the Owner to the extent such rights are not specifically reserved in the Plan
for Participants as a group or as individuals. The Owner may not take any action
inconsistent with the rights of the Plan's Participants.
b) This Contract shall be treated as a trust for purposes of the Code under rules similar to the
rules under Section 401 (1) of the Code.
)�LE041P#1
i
SECRETARY PRESIDENT
APO -3033