HomeMy WebLinkAboutTrust Agreement 2015 TRUST AGREEMENT
This Trust Agreement is made and entered into as of the 1st day of November
2015 , by and among 1i7g.4)/k1 Or So(.4 74h o/c/ (hereinafter referred to as the
"Employer")and Reliance Trust Company(hereinafter referred to as the"Trustee").
WITNESSETH:
The Employer established the Deferred Compensation Plan Town of Southold
(the "Plan"), a plan under Section 457 of the Internal Revenue Code. Pursuant to Section 1448 of the
Small Business Job Protection Act of 1996(the "Act") Section 457 plans are required to establish a trust
to hold the assets of such plans for the exclusive benefit of participants and their beneficiaries.
Accordingly,this Trust is hereby established as of , 2015 for the exclusive benefit of Plan Participants
and their Beneficiaries. Alooeffiber /
ARTICLE]
NAME OF TRUST
1.1 This Trust shall be known as the"De Fe rred eet) ,1 1704
10,9") oF soc.4/-44,/d
Plan Trust Agreement."
ARTICLE]]
DEFINITIONS
2.1 Any term used in this Trust Agreement which is not otherwise defined herein shall
have the meaning set forth in the Plan.
2.2 "Investment Manager" shall have the meaning given such term under Section 3(38)
of the Employee Retirement Income Security Act of 1974,as amended("ERISA").
ARTICLE Ill
GENERAL DUTIES
3.1 It shall be the duty of the Trustee to hold title to assets held in respect of the Plan in
the Trustee's name as directed by the Employer and/or its designees in writing.The Trustee shall not
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receive custody or possession of any such assets. The Trustee shall not be under any duty to compute the
amount of contributions to be paid by the Employer or to take any steps to collect such amounts as may be
due to be held in trust under the Plan. The Trustee shall not be responsible for the custody, investment,
safekeeping or disposition of any assets comprising the Trust, such functions to be performed by the
Employer and/or the Employer's designees,who shall be the agents of the Employer. In accordance with the
Rules and Regulation of the New York State Deferred Compensation Board (the "Rules"), Trustee
acknowledges that it is a fiduciary with respect to all administrative or investment matters for which it has
assumed responsibility with respect to the Plan. This Trust Agreement is subject to the Plan and the Rules,
and the Plan and the Rules are incorporated by reference herein and made a part hereof.
3.2 It shall be the duty of the Employer, subject to the provisions of the Plan, to pay over
to the administrator or other person designated hereunder from time to time the Employer's contributions
under the Plan and to inform the Trustee in writing as to the identity and value of the assets titled in the
Trustee's name hereunder and to keep accurate books and records with respect to the Participants of the
Plan and their compensation. No deferral may be accepted under the Plan until all acknowledgements
required under the Rules have been delivered.
ARTICLE IV
INVESTMENTS
4.1 The Trustee shall perform its functions as a nondiscretionary,noncustodial Trustee,
and the Trustee shall not have any discretion or authority with regard to the investment of the Trust and shall
act solely as a directed Trustee of the assets of which it holds title. The Trustee, as a nondiscretionary
Trustee, as may be directed by the Employer(or the Participants to the extent provided herein) is authorized
and empowered, (subject, however, to the provisions of Section 4.2 below) by way of limitation, with the
following powers, rights and duties,each of which the Trustee shall exercise in a nondiscretionary manner as
directed in accordance with the direction of the Employer(or the Participants)(except to the extent that Plan
assets are subject to the control and management of a properly appointed Investment Manager):
(a) To arbitrate, compromise, and adjust claims in favor of or against the Trust
upon such terms and conditions as it deems advisable.
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(b) To execute such instruments, deeds, leases, mortgages, contracts,
agreements, assignments, transfers, bills of sale, and other documents of any kind as it is directed to do
by the Employer and that the Trustee deems advisable or acceptable to execute in its discretion.
(c) To cause stocks, bonds, securities, or other investments to be registered in its
name as Trustee or in the name of a nominee, or to take and keep the same unregistered.
(d) To employ such agents and counsel as it deems advisable or proper in
connection with its duties and to pay such agents and counsel a reasonable fee. No agent or counsel so
employed shall be disqualified by reason of any interest in the Trust or in any corporation whose securities
comprise a part of the same.The Trustee shall not be liable for the acts of such agents and counsel or for acts
done in good faith and in reliance upon the advice of such agents and counsel, provided it has used
reasonable care in selecting such agents and counsel.
(e) To exercise all rights of ownership in any contracts of insurance in which
any part of the Trust may be invested and to pay the premiums thereon.
(f) At the direction of the Employer(or the Participants or Investment Manager,
as the case may be) to sell, write options on, convey or transfer, invest and reinvest any part thereof in
each and every kind of property, whether real, personal or mixed, tangible or intangible, whether income
or non-income producing and wherever situated, including but not limited to, time deposits (including
time deposits in the Trustee or its affiliates, or any successor thereto, if the deposits bear a reasonable rate
of interest), fee simple, leasehold or lesser estates in real estate, shares of common and preferred stock,
mortgage, bonds, leases, notes, debentures, equipment or collateral trust certificates, rights, warrants,
convertible or exchangeable securities, and/or other corporate, individual or government securities or
obligations, annuity, retirement or other insurance contracts, mutual funds (including funds for which the
Trustee or its affiliates serve as investment advisor, custodian or in a similar or related capacity), or in
units of any other common, collective or commingled trust fund heretofore or hereafter established and
maintained by the Trustee or its affiliates; as long as the Trustee holds title to any units hereunder, the
instrument establishing such common trust fund (including all amendments thereto) shall be deemed to
have been adopted and made a part of this Trust.
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4.2 Notwithstanding anything to the contrary in this Article IV or any other section of
this Trust Agreement,the Trustee shall have no power:
(a) To divert any part of the Trust to any purpose other than the exclusive
benefit of Participants and their Beneficiaries; under the Plan; provided, however,that if the Plan and this
Trust which is a part thereof is required to be filed with the Internal Revenue Service for a determination
of its qualification and said plan is not approved by the Internal Revenue Service retroactive to its
inception, the Trustee shall transfer title to Trust assets to the Employer.
(b) To lend any part of the Trust without adequate security and a reasonable rate
of interest; to pay any compensation in excess of a reasonable allowance for services or other property
for less than fair market value; to make any part of the Trust available on a preferential basis; or to
engage in any other transaction which results in a substantial diversion of any part of the Trust, to the
Employer, or to any person or entity with whom or which such a transaction is prohibited by the Internal
Revenue Code of 1986, as amended(the "Code")or ERISA.
4.3 Notwithstanding anything to the contrary in this Trust Agreement,the assets of the
Plan shall be held by the Trustee as title holder only. Persons holding custody or possession of assets titled to
the Trust shall include the Employer and any agents and subagents or other persons designated by the
Employer, but not the Trustee. The Trustee shall not be responsible or liable for any loss or expense which
may arise from or result from compliance with any direction from the Employer or such agents or other
persons,to take title to any assets nor shall the Trustee be responsible or liable for any loss or expense which
may result from the Trustee's refusal or failure to comply with any direction to hold title, except if the same
shall involve or result from the Trustee's gross negligence or intentional misconduct. The Trustee may refuse
to comply with any direction from the Employer or such agents or other persons, in the event the Trustee, in
its sole and absolute discretion,deems such direction improper by virtue of applicable law.
4.4 The Employer acknowledges that it has the sole responsibility for qualification of
the Plan under Section 457 of the Code, and for selection of the investment funds offered under the Plan
and the custody and possession of Trust assets.
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4.5 The Employer hereby indemnifies and holds the Trustee and its affiliates and
nominees harmless from any and all actions, claims, demands, liabilities, losses, damages or reasonable
expenses of whatsoever kind and nature in connection with or arising out of(i)any action taken or omitted
in good faith by the Trustee in accordance with the directions of the Employer, or its agents and subagents
or other persons designated by Employer hereunder, or(ii)any disbursements of any part of the Trust made
by the Trustee in accordance with the directions of the Employer, or(iii) any action taken by or omitted in
good faith by the Trustee with respect to an investment managed by an Investment Manager in accordance
with any direction of the Investment Manager or any inaction with respect to any such investment in the
absence of directions from the Investment Manager.
Anything hereinabove to the contrary notwithstanding, the Employer shall have no
responsibility to the Trustee under the foregoing indemnification if the Trustee fails intentionally or
recklessly to perform any of the duties undertaken by it under the provisions of this Trust. In addition, the
Trustee will indemnify the Plan as a result of any cause of action brought against the Plan as a result of
negligent acts or omissions of the Trustee,together with the reasonable costs of litigation arising therefrom.
4.6 Notwithstanding anything herein to the contrary,the Employer or, if so designated
by the Employer,the Investment Manager or another agent of the Employer, will be responsible for valuing
all other assets so acquired for all purposes of the Trust and of holding, investing, trading and disposing of
the same. The Employer will indemnify and hold the Trustee harmless against any and all claims, actions,
demands, liabilities, losses, damages, or expenses of whatsoever kind and nature, which arise from or are
related to any use of such value by the Trustee or holding,trading or disposition of such assets.
ARTICLE V
DISBURSEMENTS
5.1 The Employer or its designee shall make such payments from the Trust at such time
to such persons and in such amounts as shall be authorized by the provisions of the Plan; provided, however,
that the assets of the Plan (i) are held in trust for the exclusive benefit of the Participants and their
Beneficiaries, and no payment shall be made, either during the existence of or upon the discontinuance of
the Plan,which would cause any part of the Trust to be used for or diverted to purposes other than the
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exclusive benefit of the Participants and their Beneficiaries pursuant to the provisions of the Plan; (ii)
may be used only to pay Plan benefits and defray reasonable expenses of administering the Plan; and (iii)
cannot revert to the Employer until all Plan benefits have been paid to Participants and Beneficiaries in
accordance with the terms of the Plan.
5.2 All payments of benefits under the Plan shall be made exclusively from the assets of
the Plan accounts of the Participant to whom or to whose Beneficiary such payments are to be made, and
no person shall be entitled to look to any other source for such payments.
ARTICLE VI
ACCOUNTING BY TRUSTEE
6.1 The Trustee shall not be required to keep accounts of the investments, receipts,
disbursements, and other transactions of the Trust, except as necessary to perform its title-holding
function hereunder. All accounts, books, and records relating thereto shall be maintained by the
Employer or its designee.
6.2 As promptly as possible following the close of each year, the Trustee shall file with
the Employer a written account setting forth assets titled to the Trust as reported to the Trustee by the
Employer or its designee.
ARTICLE VII
MISCELLANEOUS ADMINISTRATIVE PROVISIONS
7.1 Except as required under the Rules, neither the Trustee nor any affiliate thereof shall
be required to give any bond or to qualify before, be appointed by, or account to any court of law in the
exercise of its powers hereunder.
7.2 No person transferring title or receiving a transfer of title from the Trustee shall be
obligated to look to the propriety of the acts of the Trustee in connection therewith.
7.3 The Employer shall indemnify the Trustee(and any delegate of the Trustee)against
any liability to any Participant or Beneficiary under the Plan for any action taken by the Trustee that is in
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accordance with the direction of the Employer. Furthermore, the Employer agrees to indemnify and hold
harmless the Trustee (and any delegate)for any losses, costs, damages, or expenses, including reasonable
attorneys' fees and expenses, which the Indemnitees may incur or pay out by reason of any (alleged or
actual)action or inaction on the part of any predecessor or successor trustee of the Trust.
7.4 The Trustee shall use ordinary care and reasonable diligence in the exercise of its
powers and the performance of its duties as Trustee hereunder. Except as provided in Section 4.5 hereof,
the Trustee shall not be liable for any mistake of judgment or other action taken in good faith, or for any
loss, unless resulting from its own gross negligence or intentional misconduct.
7.5 The Employer may engage the Trustee as its agent in the performance of any duties
required of the Employer under the Plan, but such agency employment shall not be deemed to increase
the responsibility or liability of the Trustee under this Trust Agreement.
7.6 In the management of the Trust Fund,the Trustee may employ agents and delegate
to them such ministerial and administrative duties as the Trustee shall see fit. As of the effective date of
the Trust Agreement, the Trustee has appointed Massachusetts Mutual Life Insurance Company
("MassMutual")as the agent to which it has delegated certain nondiscretionary administrative and
ministerial duties. The Trustee and the Employer understand and agree that nothing in this Agreement,
including the delegation of such nondiscretionary duties to MassMutual,shall cause MassMutual to be a
fiduciary to the Plan. Also, as of the effective date of the Trust Agreement,the Trustee appoints the
Employer as its authorized representative to which it has delegated the authority to sign on the Trustee's
behalf all documents relating to the investment of Plan assets in any vehicle administered by or made
available through MassMutual and its affiliates.
ARTICLE VIII
AMENDMENT AND TERMINATION
8.1 The Employer reserves the right to alter, amend, or terminate this Trust Agreement
at any time for any reason without the consent of the Trustee, or any other person, provided that such
amendment or termination shall not reduce or eliminate any protected benefit and provided that no
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amendment affecting the rights, duties, or responsibilities of the Trustee shall be adopted without the
written consent of the Trustee. Any such amendment shall become effective as of the date provided in the
amendment upon delivery of the written instrument of amendment, as adopted by the Employer, to the
Trustee and the endorsement of the Trustee of its agreement thereto.
ARTICLE IX
SUCCESSOR TRUSTEES
9.1 The Employer reserves the right to discharge the Trustee at any time by giving sixty
(60)days'written notice.
9.2 The Trustee reserves the right to resign at any time by giving sixty(60)days' written
notice to the Employer.
9.3 In the event of discharge or resignation of the Trustee, the Employer may appoint a
successor Trustee who shall succeed to all the rights, duties, and responsibilities of the former Trustee
under this Trust Agreement, and the terminated Trustee shall be deemed discharged of all duties under
this Trust Agreement and responsibilities for the Trust.
ARTICLE X
APPLICABLE LAW
10.1 This Trust and its validity, construction and effect shall be governed by the laws of
the State of New York.
ARTICLE XI
RULES,CONSTRUCTION,AND INTERPRETATION
11.1 The Trustee shall have the sole discretionary authority to construe and interpret the
Trust and to determine all questions arising in the administration, interpretation, and application of the
Trust. All such determinations by the Trustee shall be conclusive and binding on all persons.
11.2 Notwithstanding anything in this Agreement to the contrary, the Trustee (including
any delegate of the Trustee)shall not be responsible or liable for its failure to perform under this
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Agreement or for any losses to the Trust Fund resulting from any event beyond the reasonable control of
the Trustee, its delegates, agents or subcustodians, including but not limited to nationalization, strikes,
expropriation, devaluation, seizure, or similar action by any governmental authority, de facto or de jure;
or enactment, promulgation, imposition or enforcement by any such governmental authority of currency
restrictions, exchange controls, levies or other charges affecting the Trust Fund's property; or the
breakdown, failure or malfunction of any utilities or telecommunications systems; or any order or
regulation of any banking or securities industry including changes in market rules and market conditions
affecting the execution or settlement of transactions; or acts of war, terrorism, insurrection or revolution;
or acts of God; or any other similar or third-party event. This Section shall survive the termination of this
Agreement.
ARTICLE XII
VALIDITY
12.1 The Trustee shall select any officers deemed necessary, and adopt rules governing its
procedures not inconsistent herewith. The Trustee shall keep a record of its meetings and actions. The
Trustee shall not be liable,jointly or severally, to any person for any actions or omissions in connection
with its duties as Trustee unless resulting from its own gross negligence or willful misconduct. The
Trustee shall not be responsible for the validity of the Plan and this Trust Agreement.
ARTICLE XIII
CONSTRUCTION
13.1 Pronouns and other similar words uses herein in the masculine gender shall be read
as the feminine gender where appropriate, and the singular form of words shall be read as the plural
where appropriate.
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IN WETNESS WHEREOF, the Employer and the Trustee have executed this Trust Agreement as
of the date and year first set forth above,
EMPLOYER: TRUSTEE:
70(A)A1 F- _SOU 7H 04,2:). RELIANCE TRUST COMPANY
6/11;04/
20_4_
Siwia Signatur
Scott Russell
Print Name Print Name
Yi-1.441")
Supervior
Title Title (( (i..S'—
massMutual Retirement Services(MMRS)is 4 division of Massechuunts Monad Life Insttrunet Cornvany(MussM aloe!)and affiliates liffective January 1,2013.
tvlassachusetts Mutual Life Insurance Company(1NlIssMutuar)acquored The lIartford's Retirement Plans Group("RPG")business.MassMolual has no
affiliation,and the APO businms no longer has any affiliation,with The Hartford Financial Services Group,Inc.or any of it;subsidianes.MassMutual haA been
appoilated by FlartfOrd life Insurance Company("RUC")to provide,all administrative serviees nectrssary to support the insurance contract;issued by FILIC in
connection with the RPG businms
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