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HomeMy WebLinkAboutReso 30-1988RESOLUTION N0.30-88 CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION ESTABLISHING MEMBERSHIP IN THE ICMA RETIREMENT TRUST, AND APPROVING PARTICIPATION IN THE ICMA DEFERRED COMPENSATION PROGRAM AND IN THE GREAT WESTERN BANK DEFERRED COMPENSATION PROGRAM WHEREAS, by Resolution No. 66-79, attached as Appendix "A", the City Council established a revised Deferred Compensation Plan; and WHEREAS, over the years a number of programs have been utilized to provide deferred compensation services to City employees and at this time it is the Council's desire to make available the ICMA and Great Western Bank Deferred Compensation Programs; and WHEREAS, for those employees electing participation in the ICMA Deferred Compensation Program the City Council desires that the investment of funds held in that program be administered by the ICMA Retirement Corporation, and that such funds be held by the ICMA Retirement Trust, which is a trust estab- lished by public employers for the collective investment of funds held under their deferred compensation plans and money purchase retirement plans; NOW, T~EREFORE, BE IT RESOLVED by the City Council of the City of South San Francisco that: 1. It approves City participation in the ICMA Deferred Compensation Program ant in the Great Western Bank Deferred Compensation Program and authorizes the City Manager to execute related program documents. 2. It hereby authorizes execution by the City Manager of the Declaration of Trust of the ICMA Retirement Trust, attached as Appendix "B", and approves the Trust Agreement with the ICMA Retirement Corporation, attached as Appendix "C". 3. I~ appoints the Coordinator of Personnel Services & Employee Development to be the coordinator of the deferred compensation program and the individual designated to receive any necessary reports or notices from the program providers and to cast, on behalf of the City, after consultation with the City Manager, any required votes under the respective programs. ~T I1 I 11 adopted by meeting he AYES: NOES: ABSTAIN: ABSENT: I hereby certify that the foregoing Resolution was regularly introduced and the City Council of the City of South San Francisco at a regular ld on the 9th day of March , 19 88 by the following vote: Councilmembers Mark N. Addiego, Richard A. Haffey, Gus Nicolopulos, Roberta Cerri Teglia, and Jack Drago None None None /~^ttESt: ~ ~ ~~ City C1 erk -2- iT I [ T APPENDIX A TO RESOLUTION NO. 30-88 R~m ,..~n~J ~lO. 66-79 CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION ADOPTING IHE CITY OF SOUTH SAN FRANCISCO, CALIFORNIA, DEFERRED COMPENSATION PLAN, AS REVISED WHEREAS, the City of South San Francisco on June 15, 1977, pursuant to Resolution !5-77 adopted the South San Francisco, California, Deferred Compensatio,n Plan; and T.~qER S, the Deferred Compensation Plan as adopted was written tO comply w~th the then current Internal Revenue Code and Rules and Regulations promulgated thereunder; and WHEREAS, the 95th Congress passed the Revenue Act of 1978 {P.Lo 95-600) which has significant impact on the City of South San Francisco, California, Deferred Compensation Plan and does require certain amendments to the Deferred Compensatio~ Plan to insure that continued deferral of compensation by employees will continue to be excluded from the employees' 9ross income in the year of Ideferral; and WHERe^S, the City now desires to rescind said Plan as so adopted and adopt a Del!fred. Compensation Plan as revised, which is seg forth in Exhibit g attached hereto and made a part hereof; NO~, ~HEREFORE, BE I1 RE$OkYED by the City Council of the City of South San Francisc~ that 1. R Compensation Deferred Com .~scission of Plan Adopted by Resolution 85-77. The Deferred Plan entitled, "The City of South San Francisco, California, )ensation Plan" adopted by Resolution 85-77 on June 15, 1977, is hereby resci:~ded. 2. Aioption of Plan. The Deferred Compensation Plan entitled, "Deferred Compensation[Plan, City of South San Francisco, California," copy of which is iI I1 [ 'E ' renular meeting held on the 6th day of .;:me , 19 79, by ~he following vote: AYES: CO,ncilFeFnbers Ronald Fi,. Acosta. '.!illiam A. ~orh~_ ~rnO~l, )!. QnmnntP, m ~ m T~rrv'J~ ~lirri and OobPrta C~rri TP-lia NOES: ~lqne ABSENT: FI0ne AT rEST: /s/ i,larnaret ,I. Pettinre,..~ City C1 erk TO RESOLUT£O?I NO. ADOPTED 6/6/7g SECTION 1. SECTION 2. PU NAME: DF~,~RED CO:.:?~_:,~TIO:, PLA~ CITY OF SOUTH SAN FRANCISCO, CALIFOR~IIA The name'of th~s Plan is the City of South San Francisco, California, Deferred Compensai;ion PTan (hereinafter referred to as the P]an). RPOSE: . The primary purpose of this Plan is to attract and hold personnel by permitting them to nter into agreements with the City of South San Francisco which will provide Or deferral of payment of a portion of their current compensation until de th, disability, retirement, termination of employment, or other event as provided herein, in accordance with Sections 53212 - 53214 of the Government Cod6 of- °~h~ State of California, and the applicable provisions of the Internal Revenue ~ode. ' · , . SECTION 3. DEFINITIONS: For the phrposes of this Plan, certain words and phrases used herein will have the folloving meanings: 3. l "Emp 3.2 "Emp Empl 3.3 3.4 3.5 ioyer" shall mean the City of South San Francisco, California. loyee" shall mean only those individuals who perform service for the ~yer as an officer, a common law employee or an independent contractor. "Par:icipant" shall mean any employee who fulfills the requirements of enro)lment into this Plan as designated eligible by the City of South San Fran~i sco. "Par:icipation Agreement" shall mean the agreement executed and filed by an employee with the employer pursuant to Section 4, in which an employee elects to become a participant in the Plan. . "Inc, udible Compensation" 'shall mean the compensation for service per- form~:d for the employer which (taking into account the provisions of Sect'ions 457 and 403(b) of the Internal Revenue Code) is currently incl~dible in gross income. Amounts of compensation shall be determined with()ut regard to any community property laws. "Employment Period" shall mean any calendar month. "Disability" shall mean the complete and permanent inability of a partici- pant)to engage in his usual occupation by reason of a medically determinable physical or mental impairment as determined solely by the employer on the basi~ of advice from a physician or physicians. "Nornlal Retirement Date" shall mean the later of: 3.6 3.7 3.8 /I I 1 I The norm..al retirement age specified in any ether retirement main- '!tanned pla.", for the o-~ ..... ~.oyee by the employer, or B. The date the employee attains age 65. SECTION 4. PARTICIPATION IN THE PLAN: 4.1 A Participation Agreement shall be effective for the first employment period fo)lowing its execution and filing with the employer. The Participation Agreement shall continue from period to period and remain in full for~e and effect unless terminated as provided in Section 4.2. 4.2 A participant may terminate his participation in the Plan, and thereby terminate further deferral of his compensation, by filing with the employer an executed written notice of termination at least 30 days prior to effec- tive date of termination. Once terminated, a former participant cannot rejoin the Plan during the employment period in which termination occurred; however, he may elect to become a participant in subsequent employment periods in accordance with open enrollment practices. No amounts shall be payable to an employee upon terminating his participation in the Plan unless othen~ise due pursuant to Section 7. SECTION 5. 5.1 4.3 A participant may select,'pursuant to Section 6, one or more investment objectives provided that the amount deferred for each objective equals or exceeds the minimum of not less than $10 per pay period. DEFERRAL OF COMPENSATION: During each employment period in which an employee is a participant in the Plan, the employer shall defer payment of such part of his compensa- tion as is specified by the employee in his Participation Agreement pro- vided that, except as provided in Section 5.2, the maximum that each participant may defer under this Plan for any taxable year shall not exce)d the lessor of: A. ~7,500.00, or B. )3-1/3% ofthe participant's Includible Compensation. m 5.2 The ~aximum deferral described in Section 5.1 shall not be applicable for one or more of the participant's last three taxable years ending before the attainment of normal retirement age under this Plan. In that instance, the m~ximum shall be the lessor of: A. ~15,000.00, or B. -he sum of (i) The maximum deferral amount established for the purpose of Section 5.1 for the taxable year (determined without regard- to this Section), plus (ii) So much of the maximum deferral amount established for the purposes of Section 5.1 for taxable years before the taxable year as has nat thereCofore been used under Section 5.1 or under this Section. SECTION 6. 6.1 6.2 6.3 The I of t ques tion all toa The defe woul~ the part ment~ book On e: his amou: depos inve: annu' sole inves merit desi 6.4 The leas amour shall . divid on an be an vote 6.5 Neith shal 1 MINISTRATION OF THE PLAN: ~mployer shall administer or contract for administration and operation ne P12n in accordance with its terms and shall determine all the tions'arising out of the administration, interpretation and applica-' of the Plan, which determination shall be conclusive and binding upon persons. An advisory con~nittee may be designated by the City Manager id and assist the employer in so administering and operating the Plan. )mployer shall establish a deferred compensation fund to which all 'red compensation shall be credited at such times as the compensation have been payable to individual employees if not a participant in llan. Separate book accounts will be established for each employee icipating which will show all amounts of deferred compensation, invest- ; made, shares acquired and earnings and gains on investments. Each account will be valued at least quarterly. :ecuting the Participation Agreement, the employee shall designate nvestment objective prospectively only. The employer may invest ~ts of deferred compensation in mutual fund shares, or interest :its with a savings and loan company or banking institutions, or ~tments with a'stock broker, or life insurance and/or fixed/variable ty contract with an insurance company, whichever in the employer's judgment will best achieve the employee's objectives. The employee's tment designations are intended to be an expression of mere invest- preferences and do not obligate the employer to follosv the employee's nations. mployer may, but is not required to, invest deferred compensation at monthly in the investment vehicles provided for in this Plan. All ts of deferred compensation, whether or not invested by the employer, at all times be and remain an asset of the employer. Any and all ends, capital gains distributions, interest or other income payable y of the employer's investments of .deferred compensation also shall asset of the employer. The employer shall have the sole right to ~ny shares of stock which it may acquire by such investment. )r this Plan nor any Participation Agreement nor any book account be deemed to create a trust or custodial account on behalf of, or for the benefit of any participant of the Plan or his beneficiaries. No participant of the Plan or his beneficiaries shall have, by reason of the Plan,~Participation Agreement, or book account, any secured or preferred inter~st in, or to, any assets of the employer. The employer shall have' only a contractual obligation to pay the benefits due the participant underlthe Plan. 6.6 All ar right~ amoun' parti emplo Plan ~ounts of compensation deferred under this Plan, all property ana purchased with such amounts, and all income attributable to such ;s, property and rights shall remain (until made available to the :ipant or h~s beneficiaries) solely the property and rights of the ~er, withouu being restricted to the provision of benefits under this SECTION 7. 7.2 7.3 7.4 DISTRIBUTION uF BENEFITS: Election - Each participating employee must e!ecC the payout options and payout periods for each event stated in Sections 1.2, 1.3, 7.4 and at the time of signing each Participation Agreement. Reqirement - In the event of retirement, the full benefits credited to th~ participant's book account plus or minus subsequent investment gains or/losses, but less any Federal or State income taxes required to be with- hel~, shal-1 be distributed to him in any one or more of the following ways: m In a lump sum. 7.2~la) 7.21b) 7.2(c) In monthly, quarterly, semi-annual or annual installments over a period not to exceed l0 years from date distribution began or over a period established by the employer not greater than the life expectancy of the participant; or, for a participant eligible for an annuity payout option, installments during the lifetime of the participant with a provision'for a period certain. Life expec- tancy shall be determined once by the employer on the date of the initial installment distribution. Installment distributions will be made in substantially equal payments, but no payment shall have a value of less than (the smaller of) $50 or the balance credited to the participant's book account. Postpone payments under 7.2(a) and (b) above until participant reaches his 50th, 55th, 60th or 65th birthday. Participant'-s- book account balances may continue to be invested until - in the employer's sole judgment - cash is to be withdrawn for payment of benefits. Payment of benefits will commence on the first day of the third month following termination of employment. Payment of benefits under Sect on 7.2(c) will commence on the first day of the month following part icipant's birthday. Disai)ility - In the event of termination of employment by reason of disa)ility, distribution of benefits will be as provided in Section 7.2. Othm' Termination - In the event of termination of employment by reason othe)' than those specified in Sections 7.2 and 7.3, then the full benefits credited to participant's book account, plus or minus any subsequent inve~ tment gains or losses, but less any Federal or State income taxes required to be withheld, shall be distributed to him in any one or more of t?e following ways: 7.4(~) In a lump sum. 7.4(b In monthly, quarterly, semi-annual or annual installments of substantially equal payments over a period not to exceed seven (7) years from date distribution began, but no payment shall have a value of less than (the smaller of) $50 or the balance' credited to the participant's book account. 7..4(c) Postpone ~.:.~,,~.~.~,, ..... s under 7.4(a) and ~.~ above unti! participant reaches his 50th, $Sth, 60th, or 65ch birthday. The employee shall elect the method of distribution at the time of signing each Participation Agreement. The employer shall make distribution by any of the foregoing methods or combinations thereof. Participant's book account balances will continue to be invested until - in the employer's sole judgment --cash is to be withdrawn for payment of benefits. Payment of benefits under Section 7.4{a} and {b} will commence on the first day of the third month following termination of employment. Payment of bene- fits under Section 7.4{c} will commence on the first day of the month following the participant's birthday. 7.5 Death - In the event of death of any participant, either before or after termination of employment, then the full benefits credited to his book accoJnt, less any Federal or State withholding taxes required by law, shall be distributed to his beneficiaries in the manner designated in his Participation Agreement. The employer shall, in the case of lump sum pay- ment, make payment 90 days after notification of the death of the partici- pant, in compliance with any State laws governing the payment of death benefits. 7.6 Financial Catastrophe - In the even~ of financial catastrophe affecting a m participant where the withdrawal of funds would be necessary to prevent great hardship to the participant and the amount necessary to meet that financial catastrophe is not reimbursed by insurance, a participant may apply to the employer for such amount from the Plan prior to retirement or to termination of participant's employment with the jurisdiction. Examples of such need under the foregoing criteria may be catastrophic illness, flood, fire, earthquake, death in the family, or disabling injury, or examples of similar importance. Withdrawals for expenditures n~rmally budgetable, such as a downpayment on a home, purchase of an automobile, or college expenses will not be permitted. Any amount so approved here- under for withdrawal shall be paid to the participant in a lump sum. The withdrawal shall be effective at the later of the dates specified in the participant's application or the date approved by the employer, SECTION 8. EMPLOYER PARTICIPATION: Notwithstanding any other provision of this Plan, the employer may make addi- tional deposits in the deferred compensation fund as additional compensation for services to be rendered by the employee to the employer during an employ- ment period; provided, A. The employe~ has elected to have such additional compensation deferred, invested, and distributed, pursuant to this Plan, prior to the employment perioc in which the compensation will be earned; and B. That such additional deposit shall not exceed the maximum deferral permitted in SeCtion 5. -SECTIO~ 9. NON[-ASSIGNABILITY: To the fulllest extent permitted by law, the interest of a participcant in the SECTION 10. lO.1 contractual obligation of the employer, established by the Plan, shall not be assignab)e in w~ole or in part, directly or by operation of law or otherwise, in any ml~nner and no right or interest of a participant in the employer's contractual obligation shall be liable for or subject to any obligation or liabilitl of'such participant. (ISCELLANEOUS: Status of Participants - Neither the establishment of the Plan nor any mm~ification thereof, nor the establishment of any book account nor the paj~ent o[ any benefits, shall be construed as giving to any participant or other person any legal or equitable right against the employer except as herein provided; and in no event shall the terms of employment of an~ employee or participant be modified or in any way affected hereby. 10.2 Co~dition of the Plan - It is a condition of the Plan, and each employee by participating herein expressly agrees, that he shall look solely to th(~ oeneral assets of the employer for the payment of any benefit to wh!c~ he is entitled under the Plan. m 10.3 GoVerning Law - This Plan shall be construed, administered, and enforced according to the laws of the State of California. 10.4 DeSignation of Beneficiaries - Each participant shall have the right, by,written notice to the employer, to designate beneficiaries to receive any benefit to which said participant may be entitled in the event of hi~ death prior to the completion of distribution of benefits. If no su(h designation is in effect on a participant's death, his beneficiary sh( 1 be his estate, or if no executor or administrator is appointed witdn six (6) months after the participant's death, the employer shall direct said benefits to be paid to the beneficiary or beneficiaries designated in his last Will, or if there be no Will, then to the heirs at la~ of the participant. MENDMENT AND TERMINATION: ll.1 The employer may, at any time and from time to time, modify, amend, or terninate the Plan in whole or in part (including retroactive amendments) or cease deferring compensation pursuant to the Plan, b~ delivering to each participant a written copy of such modification, amendment, or termination, or of a notice that it ceased deferring compensation; provided, however, the employer shall not have the right to reduce or afl)ct the value of any participant's book account or any rights accrued und)r the Plan prior to such modification, amendment, termination, or ces ~ation. ll.2 In the event of the termination of the Plan by the employer under Section ll.), the value of all participant's book accounts shall be distributed to ~he participants or their beneficiaries in lump sums on the sixtieth {60) day after the termination of the Plan. SECTION 11. ~ 12. E;.!PLOYER NOT RESPO;iSIBLE: The employer may, but is not required to, invest funds pursuant to agreements bet~.~een participants and the employer in accordance with the requests made by each participant at the time of enrollment or change in enrollment, prospec- tively only. The employer shall retain the right to approve or disapprove such investment reqbests. Any action by the employer in investing funds, or approving of any such investment of funds, shall not be considered to be either an endorse- ment or guaranl~ee of any investment, nor shall it be considered to attest to the financial soundness or the suitability of any investment for the purpose of meeting future obligations as provided in Section 7. o RESOLDTION 'N0. 30-88 APPENDIX B DECLARATION OF TRUST OF ICMA RETIREMENT TRUST ARTICLE I. NAME AND DI-'FINITIONS ,~,,ction 1.1 Name: The I~ ame of the Trust, as amended and restated hereby, is the ICMA Retirement Trust. Section 1,2 Definitiona: Wherever they are used herein, the following terms shall have the following respective meanings: la) By-Laws. The By-Laws referred to in Section 4.1 hereof, as amended from time to time. lb) Deferred Compensa:ion Plan. A deferred compensation plan established and maintained by a Public Employer for the purpose of providing retire- ment income and othe' deferred benefits to its employees in accordance with the provisions of section 457 of the Internal Revenue Code of 1954, as amended. lc) Employees. Those employees who participate in Qualified Plans. (d) Employer Trust. A trust created pursuant to an agreement between RC and a Public Employer for the purpose of investing and administering the funds set aside by such Employer in connection with its Deferred Compen- sation agreements with i~s employees or in connection with its Qualified Plan. (e) Guaranteed Investment Contract. A contract entered into by the Retire- ment Trust with insurance companies that provides for a guaranteed rate of return on investments made pursuant to such contract. (f) ICMA. The International City Management Association. (g) ICMA/RC Trustees. Those Trustees elected by the Public' Employers who, in accordance with the provisions of Section 3.1(a) hereof, are also mem- bers of the Board of D rectors of ICMA or RC. (h) Investment Adviser. The Investment Adviser that enters into a contract with the Retirement Trust to provide advice with respect to investment of the Trust Property. (i) Portfolios. The Portfolios of investments established by the Investment Adviser to the Retirement Trust, under the supervision of the Trustees, for the purpose of providing investments for the Trust Property. (j) Public Employee Truslees. Those Trustees elected by the Public Employers who, in accordance with the provisions of Section 3.1(a) hereof, are full-time employees of Public Employers. (k) Public Employer Tr~,stees. Public Employers who serve as trustees of the Qualified Plans. (I) Public Employer. A ~nit of state or local government, or any agency or instrumentality thereof, lhat has adopted a Deferred Compensation Plan or a Qualified Plan and has executed this Declaration of Trust. (m) Qualified Plan. A plan sponsored by a Public Employer for the purpose of providing retirement ncome to its employees which satisfies the qualifi- cation requirements of Section 401 of the Internal Revenue Code, as amended. (n) RC. The Internationa City Management Association Retirement Corpo- ration. (o) Retirement Trust. The Trust created by this Declaration of Trust. (p) Trust Property. The amounts held in the Retirement Trust on behalf of the Public Employers in connection with Deferred Compensation Plans and on behalf of the Public Employer Trustees for the exclusive benefit of Employees pursuant to Quail- fled Plans. The Trust Property shall include any income resulting from the invest- ment of the amounts so held. lq) Trustees. The Public Employee Trustees and ICMA/RC Trustees elected by the Public Employers to serve as members of the Board of Trustees of the Retirement Trust. ARTICLE II. CREATION AND PURPOSE OF THE TRUST; OWNERSHIP OF TRUST PROPERTY Section 2.1 Creation: The Retirement Trust is created and established by the execution of this Declaration of Trust by the Trustees and the Public Employers. Section 2.2 Purpose: The purpose of the Retirement Trust is to provide for the commingled investment of funds held by the Public Employers in connec- tion with their Deferred Compensation and Qualified Plans. The Trust Prop- erty shall be invested in the Portfolios, in Guaranteed Investment Contracts, and in other investments recommended by the Investment Adviser under the supervision of the Board of Trustees. No part of the Trust Property will be invested in securities issued by Public Employers. Section 2.3 Ownership of Trust Property: The Trustees shall have legal title to the Trust Property. The Public Employers shall be the beneficial owners of the portion of the Trust Property allocable to the Deferred Compensation Plans. The portion of the Trust Property allocable to the Qualified Plans shall be held for the Public Employer Trustees for the exclusive benefit of the Employees. ARTICLE III. TRUSTEES Section 3.1 Number and Qualification of Trustees. la) The Board of Trustees shall consist of nine Trustees. Five of the Trustees shall be full-time employees of a Public Employer (the Public Employee Trustees) who are authorized by such Public Employer to serve as Trustee. The remaining four Trustees shall consist of two persons who, at the time of election to the Board of Trustees, are members of the Board of Directors of ICMA and two persons who, at the time of election, are members of the Board of Directors of RC (the ICMNRC Trustees). One of the Trustees who is a director of ICMA, and one of the Trustees who is a director of RC, shall, at the time of election, be full-time employees of a Public Employer. lb) No person may serve as a Trustee for more than one term in any ten-year period. Section 3.2 Election and Term. la) Except for the Trustees appointed to fill vacancies pursuant to Section 3.5 hereof, the Trustees shall be elected by a vote of a majority of the Public Employers in accordance with the procedures set forth in the By-Laws. (b) At the first election of Trustees, three Trustees shall be elected for a term of three years, three Trustees shall be elected for a term of two years and three Trustees shall be elected for a term of one year. At each subsequent election, three Trustees shall be elected for a term of three years and until his or her successor is elected and qualified. Section 3.3 Nominations: The Trustees who are full-time employees of Public Employers shall serve as the Nominating Committee for the Public Employee Trustees. The Nominating Committee shall choose candidates for Public Employee Trustees in accordance with the procedures set forth in the By-Laws. Section 3.4 Resignation and Removal. (a) Any Trustee may resign as Trustee (without need for prior or subsequent accounting) by an instrument in writing signed by the Trustee and delivered to the other Trustees and such resignation shall be effective upon such delivery, or at a later date according to the terms of the instrument. Any of the Trustees may be removed for cause, by a vote of a majority of the Public Employers. (b) Each Public Employee Trustee shall resign his or her position as Trustee within sixty days of the date on which he or she ceases to be a full-time employee of a Public Employee Section 3,5 Yacancie$; The term of office of a Trustee shall terminate and a vacancy shall occur in the event of the death, resignation, removal, adjudi- cated incompetence or other incapacity to perform the duties of the office of a Trustee. In the case of a vacancy, the remaining Trustees shall appoint such person as they in their discretion shall see fit (subject to the limitations set forth in this Section), to serve for the unexpired portion of the term of the Trustee who has resigned or otherwise ceased to be a Trustee. The appointment shall be made by a written instrument signed by a majority of the Trustees. The per- son appointed must be the same type of Trustee (i.e., Public Employee Trus- tee or ICMA/RC Trustee) as the person who has ceased to be a Trustee. An appointment of a Trustee may be made in anticipation of a vacancy to occur at a later date by reason of retirement or resignation, provided that such appoint- ment shall not become effective prior to such retirement or resignation. When- ever a vacancy in the number of Trustees shall occur, until such vacancy is filled as provided in this Section 3.5, the Trustees in office, regardless of their number, shall have all the powers granted to the Trustees and shall discharge all the duties imposed upon the Trustees by this Declaration. A written instru- ment certifying the existence of such vacancy signed by a majority of the Trustees shall be conclusive evidence of the existence of such vacancy. Section 3.6 Trustees Serve In Representative Capacity: By executing this Declaration, each Public Employer agrees that the Public Employee Trustees elected by the Public Employers are authorized to act as agents and represen- tatives of the Public Employers collectively. ARTICLE IV. POWERS OF TRUSTEES Section 4.1 General Powers: The Trustees shall have the power to conduct the business of the Trust and to carry on its operations. Such power shall include, but shall not be limited to, the power to: (a) receive the Trust Property from the Public Employers, Public Employer Trustees or other Trustee of any Employer Trust; (b) enter into a contract with an Investment Adviser providing, among other things, for the establishment and operation of the Portfolios, selection of the Guaranteed Investment Contracts in which the Trust Property may be invested, selection of other investments for the Trust Property and the payment of reasona- ble fees to the Investment Adviser and to any sub-investment adviser retained by the Investment Adviser; (c) review annually the performance of the Investment Adviser and approve annually the contract with such Investment Adviser; (d) invest and reinvest the Trust Property in the Portfolios, the Guaranteed Interest Contracts and in any other investment recommended by the Investment Adviser, but not including securities issued by Public Employers, provided that if a Public Employer has directed that its monies be invested in specified Portfolios or in a Guaranteed Investment Contract, the Trustees of the Retirement Trust shall invest such monies in accordance with such directions; (e) keep such portion of the Trust Property in cash or cash balances as the Trustees, from time to time, may deem to be in the best interest of the Retire- ment Trust created hereby, without liability for interest thereon; (f) accept and retain for such time as they may deem advisable any securi- ties or other property received or acquired by them as Trustees hereunder, whether or not such securities or other property would normally be purchased as investments hereunder; (g) cause any securities or other property held as part of the Trust Prop~ to be registered in the name of the Retirement Trust or in the name of a nc nee, and to hold any investments in bearer form, but the books and records of the Trustees shall at all times show that all such investments are a part of the Trust Property; (h) make, execute, acknowledge, and deliver any and all documents of trans- fer and conveyance and any and all other instruments that may be necessary or appropriate to carry out the powers herein granted; (i) vote upon any stock, bonds, or other securities; give general or special proxies or powers of attorney with or without power of substitution; exercise any con- version privileges, subscription rights, or other options, and make any pay- ments incidental thereto; oppose, or consent to, or otherwise participate in, corporate reorganizations or other changes effecting corporate securities, and delegate discretionary powers, and pay any assessments or charges in con- nection therewith; and generally exercise any of the powers of an owner with respect to stocks, bonds, securities or other property held as part of the Trust Property; (j) enter into contracts or arrangements for goods or services required in con- nection with the operation of the Retirement Trust, including, but not limited to, contracts with custodians and contracts for the provision of administrative services; (k) borrow or raise money for the purposes of the Retirement Trust in such amount, and upon such terms and conditions, as the Trustees shall deem advis- able, provided that the aggregate amount of such borrowings shall not exceed 30% of the value of the Trust Property. No person lending money to the Trustees shall be bound to see the application of the money lent or to inquire into its validity, expediency or propriety of any such borrowing; (I) incur reasonable expenses as required for the operation of the Retirement Trust and deduct such expenses from the Trust Property; (m) pay expenses properly allocable to the Trust Property incurred in conr tion with the Deferred Compensation Plans, Qualified Plans, or the Empl¢. Trusts and deduct such expenses from that portion of the Trust Property to whom such expenses are properly allocable; (n) pay out of the Trust Property all real and personal property taxes, income taxes and other taxes of any and all kinds which, in the opinion of the Trustees, are propedy levied, or assessed under existing or future laws upon, or in respect of, the Trust Property and allocate any such taxes to the appropriate accounts; (o) adopt, amend and repeal the By-Laws, provided that such By-Laws are at all times consistent with the terms of this Declaration of Trust; (p) employ persons to make available interests in the Retirement Trust to employers eligible to maintain a Deferred Compensation Plan under Section 457 or a Qualified Plan under Section 401 of the Internal Revenue Code, as amended; (q) issue the Annual Report of the Retirement Trust, and the disclosure docu- ments and other literature used by the Retirement Trust; (r) make loans, including the purchase of debt obligations, provided that all such loans shall bear interest at the current market rate; (s) contract for, and delegate any powers granted hereunder to, such officers, agents, employees, auditors and attorneys as the Trustees may select, provided that the Trustees may not delegate the powers set forth in paragraphs (b), (c) and (o) of this Section 4.1 and may not delegate any powers if such delega- tion would violate their fiduciary duties; (t) provide for the indemnification of the officers and Trustees of the Retirement Trust and purchase fiduciary insurance; (u) maintain books and records, including separate accounts for each Public Employer, Public Employer Trustee or Employer Trust and such additional s~n- arate accounts as are required under, and consistent with, the Deferred C pensation or Qualified Plan of each Public Employer; and (v) do all such acts, take all such proceedings, and exercise all such riL and privileges, although not specifically mentioned herein, as the Trustees may deem necessary or appropriate to administer the Trust Property and to carry out the purposes of the Retirement Trust. Section 4.2 Distribution of Trust Property: Distributions of the Trust Prop- erty shall be made to, or on behalf of, the Public Employer or Public Employer Trustee, in accordance with the terms of the Deferred Compensation Plans, Qualified Plans or Emplcyer Trusts. The Trustees of the Retirement Trust shall be fully protected in making payments in accordance with the directions of the Public Employers, Public Employer Trustees or other Trustee of the Employer Trusts without ascertaining whether such payments are in compliance with the provisions of the Deferred Compensation or Qualified Plans, or the agreements creating the Employer Trusts. Section 4.3 Execution of Instruments: The Trustees may unanimously designate any one or mo'e of the Trustees to execute any instrument or docu- ment on behalf of all, including but not limited to the signing or endorsement of any check and the signing of any applications, insurance and other con- tracts, and the action of ~uch designated Trustee or Trustees shall have the same force and effect as if taken by all the Trustees. ARTICLE V. DUTY OF CARE AND LIABILITY OF TRUSTEES Section 5.1 Duty of Care: In exercising the powers hereinbefore granted to the Trustees, the Trustees shall pedorm all acts within their authority for the exclusive purpose of providing benefits for the Public Employers in connec- tion with Deferred Compensation Plans and Public Employer Trustees pursuant to Qualified Plans, and shall perform such acts with the care, skill, prudence and diligence in the circumstances then prevailing that a prudent person act- ing in a like capacity and :amiliar with such matters would use in the conduct of an enterprise of a like !character and with like aims. Section 5.2 Liability: Th~ Trustees shall not be liable for any mistake of judg- ment or other action take0 in good faith, and for any action taken or omitted in reliance in good faith upon the books of account or other records of the Retirement Trust, upon tha opinion of counsel, or upon reports made to the Retirement Trust by any o: its officers, employees or agents or by the Invest- ment Adviser or any sub-investment adviser, accountants, appraisers or other experts or consultants selected with reasonable care by the Trustees, officers or employees of the Retirement Trust. The Trustees shall also not be liable for any loss sustained by the Trust Property by reason of any investment made in good faith and in accordl ince with the standard of care set forth in Section ,5.1. Section 5,3 Bond: No Tn istee shall be obligated to give any bond or other security for the performar ce of any of his or her duties hereunder. ARTICLE VI. ANNUAL REPORT TO SHAREHOLDERS The Trustees shall annually submit to the Public Employers and Public Employer Trustees a written report of the transactions of the Retirement Trust, including flnan- cial statements which shall be certified by independent public accountants cho- sen by the Trustees. ARTICLE VII. DURATION OR AMENDMENT OF RETIREMENT TRUST Section 7.1 Withdrawal: A Public Employer or Public Employer Trustee may, at any time, withdraw from this Retirement Trust by delivering to the Board of Trustees a written statement of withdrawal. In such statement, the Public Employer or Public Employer Trustee shall acknowledge that the Trust Prop- erty allocable to the Public Employer is derived from compensation deferred by employees of such Public Employer pursuant to its Deferred Compensa- tion Plan or from contributions to the accounts of Employees pursuant to a Qualified Plan, and shall designate the financial institution to which such property shall be transferred by the Trustees of the Retirement Trust or by the Trustee of the Employer Trust. Section 7,2 Duration: The Retirement Trust shall continue until terminated by the vote of a majority of the Public Employers, each casting one vote. Upon termination, all of the Trust Property shall be paid out to the Public Employers, Public Employer Trustees or the Trustees of the Employer Trusts, as appropriate. Section 7.3 Amendment: The Retirement Trust may be amended by the vote of a majority of the Public Employers, each casting one vote. Section 7.4 Procedure: A resolution to terminate or amend the Retirement Trust or to remove a Trustee shall be submitted to a vote c~f the Public Employers if: (i) a majority of the Trustees so direct, or; (ii) a petition requesting a vote, signed by not less than 25% of the Public Employers, is submitted to the Trustees. ARTICLE VIII. MISCELLANEOUS Section 8.1 Governing Law: Except as otherwise required by state or local law, this Declaration of Trust and the Retirement Trust hereby created shall be construed and regulated by the laws of the District of Columbia. Section 8.2 Counterparts: This Declaration may be executed by the Public Employers and Trustees in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. RESOLUTION NO. 30-88 APPENDIX C TRUST AGREEMENT WITH THE ICMA RETIREMENT CORPORATION AGREEMENT made by and betw~en the Employer named in the attached reso- lution and the International City Management A. ssociation Retirement Corpora- tion (hereinafter the "Trustee" o~ 'Retirement Corporation"), a nonprofit corpora- of investing and otherwise administering the funds set aside by Employers in connection with deferred compensation plans established under section 457 of the Internal Revenue Code of 1954 (the 'Code'). This Agreement shall take effect upon acceptance by the Trustee of its appointment by the Employer to serve as Trustee in accordance herewith as set forth in the attached resolution. WHEREAS, the Employer has established a deferred compensation plan under section 457 of the Code (the "Plan"); ' ¥¥HERE~S, in order that ther~ will be sufficient funds available to discharge the Employer's contractual obligations under the Plan, the Employer desires to ~ aside periodically amounts ~equal to the amount of compensation deferred; · IEREAS, the funds set aside, together with any and all assets derived from investment thereof, are to I~e e~clusively within the dominion, control, and ownership of the Employer. and subject to the Employer's absolute right of with- drawal, no employees having any interest whatsoever therein; THEREFORE, this Agreement witnesseth that (a) the Employer will NOW, pay monies to the Trustee to be plaqed in deferred compensation accounts for the Employer; (b) the Trustee covehants that it will hold said sums, and any other funds which it may receive hereunder, in trust for the uses and purposes and upon the terms and conditions h~eina~er stated; and (c) the parties hereto agree ARTICLE I. GENERAL DUTIIF~ OF THE PARTIES ~ 1.1 General Duty of the Em~ The Employer shall make regu- lar periodic payments equal o the amounts of its employees' compensation which are deferred in accordance with the terms and conditions of the Plan to the ex'tent that such amounts are to be invested under the Trust. ~ 1.2 General Dutle~ of the lt'u~ee: The Trustee shall hold all funds received by it hereunder, whic 3, together with the income therefrom, shall con- stitute the Trust Funds. It shal administer the Trust Funds, collect the income thereof, and make payments ;herefrom, all as hereinafter provided. The Trus- tee ~ alse hold all Trust Funds which are transferred to it es successor Trustee by the Employer from existir~ deferred compensation arrangements with its Employees under plans descri 3ecl in section 457 of the Code Such Trust Funds shall be subject to all of the terms and pro~nsions of this Agreement. ARTICLE II. POWERS AND DUTIES OF THE TRUSTEE IN INVESTMENT, ADMINISTRATION, AND DISBURSEMENT OF THE TRUST FUNDS. ~;-tlon 2.1 Investment Powem and Dutlea ~ the lt~tee: The Trus- tee shall have the power to invest and reinvest the principal and income of the Trust Funds and keep the ~rust Funds invested, without distinction between principal and income, in securities or in other property, real or personal, wher- retirement annuity and insurance policies, mortgages, and other evidences of indebtedness or ownership, investment companies, common or group trust funds. or separate and different types of funds (including equity, fixed income) which fulfill requirements of state and local governmental laws, provided, however, that the Employer may direct investment by the Trustee among available investment alternatives in such proportions as the Employer authorizes in connection with its deferred compensation agreements with 'its employees. For these purposes, these Trust Funds may be commingled with Trust Funds set aside by other Employers pursuant to the terms of the ICMA Retirement Trust. Investment powers vested in the Trustee by the Section may be dalegatad by the Trustee to any bank, insurance or trust company, or any irwestment adviser, manager or agent selected ~ectlon 2.2 ,~z~mlnistrative Powera of the 'lhJ~tee: The Trustee shall have the power in its discretion: (a) To purchase, or subscribe for, any securities or other property and to retain the same in trust. (b) To sell, exchange, convey, transfer or otherwise dispose of any securi- ties or other property held by it, by private contract, or at public auction. No parson dealing with the Trustee shall be bound to see the application of the purchase money or to inquire into the validity, expediency, or propri- ety of any such sale or other disposition. (c) To vote upon any stocks, bonds, or other securities; to give general or special proxies or powers of attorney with or without power of substitution; to exercise any conversion privileges, subscription rights, or other options, and to make any payments incidental thereto; to oppose, or to consent to, or o~herwise participate in, corporate reorganizations or other changes affect- lng corporate securities, and to delegate discretionary powers, and to pay any assessments or charges in connection therewith; and generally to exer- cise any of the powers of an owner with respect to stocks, bonds, securities or other property held as part of the Trust Funds. (d) To cause any securities or other property held as part of the Trust Funds to be registered in its own name, and to hold any investments in bearer form, but the books and records of the Trustee shall at all times show that all such investments are a part of the Trust Funds. (e) To borrow or raise money for the purpose of the Trust in such amount, and upon such terms and conditions, as the Trustee shall deem advisable; and, for any sum so borrowed, to issue its promissory note as Trustee, and fo secure the repayment thereof by pledging all, or any part, of the Trust Funds. No parson lending money to the Trustee shall be bound to see the application of the money lent or to inquire into its validity, expediency or propriety of any such borrowing. (f) To keep such portion of the Trust Funds in cash or cash balances as the Trustee, from time to time, may deem to be in the best interest of the Trust created hereby, without liability for interest thereon. (g) To accept and retain for such time as it may deem advisable any securi- or not such securities or other property would normally be purchased as investment hereunder. ~ (h) To rl~ake, execute, acknowledge, and deliver any and all documents of trander and conveyance pnd any and ~ othe~ instruments that may be nece~ary or appropriate Ito ca.y out the powers herein granted, ~- (i) To eettle, compromise,I or ~ubmit to arbitration any claims, cleb~ or damages due o~ owing to O~ from the Trust Funds; to commence or defend in all ~,its and legal and ~dministrative proceedings. and pdviiaget although n~ specifically mentioned herein, as the Trustee may dean necessary to administer the Trust Funds and to carry out the purposes of this Trust. ~ection 2.3 Distributions from the Trust Funds: The Employer hereby a~point$ tine Trustee as ~ a~nt for tine purpose of mal~ng distributions from the Trust Funds. In this regar~J the terms and conditions set forth in the Plan are to guide and control thelTrustee's power. Section 2.4 Valuntion of 'rruet I=unde: At least once a year as of Valuation Dates de~gnated by the Trustee, the Trustee shall determine the value of'the Trust Funds. Assets of the TrUst Funds shall be valued at their market values at the close of business on ~e Valuation Date, or, in the absence of readily ascertainable market values a~ the '~ustee shall determine, in accordance with methods consistently fcllowe~ and uniformly applied. ARTICLE III. FOR PROTECTION OF TRUSTEE ~ection 3.1 Evidence of Act on by Employer:. The Trustee may rely upon any certir~..ate, notice or direction purporting to have been signed on behalf of the Employer which the Trustee believes to have been signed by a duly designated official of the Emp,oyer. No communication shall be binding upon any of the Trust Funds or Trustee until they are received by the Trustee. eel with respect to the construction of this Agreement, its duties hereunder, ~' any act, which it proposes to take or omit, and shall not be liable for any ~on taken or omitted in good faith pursuant to such advice ,~ion 3.3 Mi~cellaneou=. ~he Trustee shall use ordinary care and reasona- ble diligence, but shall not be liable for any mistake of judgment or other action taken in good faith. The Trustable shall not be liable for any loss sustained by the Trust Funds by reasons of any investment made in good faith and in accor- dance with the provisions of ~e Agreement. The Trustee's duties and o~tigations shall be limited to those expressly imposed upon it by this Agreement. ARTICLE IV. TAXES, IEXPEN$ =$ AND COMPENSATION OF TRUSTEE ~ection 4.1 lt~e~: The Trustee shall deduct from and charge against the Trust Funds any taxes on the Trust Funds or the income thereof or which the Trus- tee is required to pay with respect to the interest of any person therein. ~ction 4.2 Expenlee: The ~rustee shall deduct from and charge against the Trust Funds all reasonable expenses incurred by the Trustee in the adminis- tration of the Trust Funds, including cour~ei, agency, investment advisory, and ARTICLE V. SETTLEMENT OF ACCOUNTS The Trustee shall keep accurate and detailed accounts of all investments, receipts, disbursements, and other transactions hereunder. W~hin ninety (90) days after the close of each fiscal year, the Trustee shall ren- der in duplicate to the Employer an account of its acts and transactions as Trus- lee hereunder, ff any part of the Trust Fund shall be invested through the medium of any common, collective or commingled Trust Funds, the last annual report of such Trust Funds shall be submitted with and incorporated in the account. Employer has not filed with -he Trustee notice of any objection to any act · ansaction of the Trustee, the account or amended account shall become an account stated, ff any objection has been filed, and if the Employer is satis- fied that it should be withdrawn or if the account is adjusted to the Employer's eatistaction, the Employer shall in writing filed with the Trustee signify approval of the account and it shall bec..~e an account stated. When an account becomes an account stated, such account shall be finally eettled, and the Trustee shall be completely discharged and released, as if such account had been settled and allowed by a judgment or decree of a court of competent jurisdiction in an action or proceeding in which the Trustee and the Employer were pe~es. The Trustee shall have the right to apply at any time to a court of competent jurisdiction for the judicial settlement of its account. ARTICLE VI. RESIGNATION AND REMOVAL OF TRUSTEE Section 6.1 Flelignation of 'fl'ustee: The Trustee may reign at any time by filing with the Employer its written resignation. Such resignation shall take effect sixty (60) days from the date of such filing and upon appointment of a successor pursuant to Section 6.3., whichever shall fimt occur. ~ectlon 6.2 Removal of ltustee: The Employer may remove the Trustee at any time by delivering to the Trustee a written notice of its removal and an appointment of a successor pursuant to Section 63. Such removal shall not take effect pdor to sixty (60) days from such delivery unless the Trustee agrees to an earlier effective date, ~ection 6.3 Appointment of Successor Trustee: The appointment of a successor to the Trustee shall take effect upon the delivery to the Trustee of (a) an instrument in writing executed by the Employer apP~nting such suc- cessor, and exonerating such successor from liability for the acts and orals. sions of its predecessor, and (b) an acceptance in writing, executed by such successor. All of the provisions set forth herein with respect to the TruStee shall relate to each successor with the same fome and effect as if such successor had been originally named as Trustee hereunder. If a successor is not appointed within sixty (60) days after the Trustee gives notice of its resignation pursuant to Section 6.1., the Trustee may apply to any court of competent jurisdiction for appointment of a successor. Section 6.4 ~.ansfer of Funde to Successor: Upon the resignation or removal of the Trustee and appointment of a successor, and after the final account of the Trustee has been properly settled, the Trustee shaJl transfer and deliver any of the Trust Funds involved to such successor. ARTICLE VII. DURATION AND REVOCATION OF TRUST AGREEMENT Section 7.1 Duration end Revocation: This Trust shall c~)ntinue for such time as may be necessary to accomplish the purpose for which it was created but may be terminated or revoked at any time by the Employer as it relates to any and/or all related participating Employees. Written notice of such termi- nation or revocation shall be given to the Trustee by the Employe[ Upon ter- mination or revocation of the Trust, all of the assets thereof shall return to and revert to the Employer. Termination of this Trust shall not, however, relieve the Employer of the Employer's continuing obligation to pay deferred compensa- tion to Employees in accordance with the terms of the Plan. ~"tiOn 7.2 Amendment: The Employer shall have the right to amend this Agreement in whole and in part but only with the Trustee's written consent. Any such amendment shall become effective upon (a) delivery to the Trustee of a written instrument of amendment, and (b) the endorsement by the Trus- tee on such instrument of its consent thereto, ARTICLE VIII. MISCELLANEOUS Section 8.1 L.Bw~ of the District of Columbll to Govam: This Agree- ment and the Trust hereby created shall be construed and regulated by the laws of the District of Columbia. Section 8.2 Successor Employem: The 'Employer" shall include any per- son who succeeds the Employer and who thereby becomes subleCt to the obligations of the Employer under the Plan. Section 3.3 WRhdrawll.: The Employer may, at any time, and from time to time, withdraw a portion or all of Trust Funds created by this Agreement. S4~."'tion 6.4 Gender arid Number:. The masculine includes the feminine and the singular includes the plural unless the context requires another meaning. 8