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HomeMy WebLinkAboutResolution No. 1989-63RESOLUTION NO. 89 -63 A RESOLUTION ESTABLISHING A DEFERRED COMPENSATION PLAN FOR THE CITY OF CAPE CANAVERAL; ENTERING INTO AN AGREEMENT WITH ICMA RETIREMENT CORPORATION FOR ADMINISTRATION OF SAID PLAN; PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Cape Canaveral has employees rendering valuable services; and WHEREAS, the establishment of a deferred compensation plan for such employees serves the interests of the City of Cape Canaveral by enabling it to provide reasonable retirement security for its employees, by providing increased flexibility in its personnel management system, and by assisting in the attraction and retention of competent personnel; and WHEREAS, the City of Cape Canaveral has determined that the establishment of a deferred compensation plan to be administered by the ICMA Retirement Corporation serves the above objectives; and WHEREAS, the City of Cape Canaveral desires that the investment of funds held under its deferred compensation plan be administred by the ICMA Retirement Corporation, and that such funds be held by the ICMA Retirement Trust, a trust established by public employers for the collective investment of funds held under their deferred compensation plans and money purchase retirement plans; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Cape Canaveral, Brevard County, Florida, as follows: SECTION 1. The Deferred Compensation Plan, attached hereto as Appendix "A" and made a part hereof by reference, is hereby adopted. SECTION 2. ICMA Retirement Corporation is hereby appointed to serve as Administrator of said plan. SECTION 3. The Declaration of Trust of the ICMA Retirement Plan, attached hereto as Appendix "B" and made a part hereof by reference, is hereby executed. RESOLUTION NO. 89 -63 PAGE 1 OF 2 SECTION 4. The City Manager is hereby appointed to serve as coordinator for this program and shall receive necessary reports, notices, etc. from the ICMA Retirement Corporation or the ICMA Retirement Trust, and shall cast on behalf of the City any required votes under the program. Administrative duties to carry out the plan may be assigned to the appropriate departments. SECTION 5. This Resolution shall take effect immediately upon its adoption. ADOPTED BY the City Council of the City of Cape Canaveral, Florida, this 17th day of October , 1989. w,vf v4 a ty Cae rk: Approved as. ,Form �F t M1 6r NAME HOOG KIDD YESI N RANDELS SALAM -- -ON I X Thurm X RESOLUTION NO. 89 -63 PAGE 2 OF 2 U 1 APPENDIX A CITY,.OF CAPE CANAVERAL " - ( "EMPLOYER "). • -DEFERRED COMPENSATION ,PLAN ARTICLE .I. INTRODUCTION Section 2.07 Joinder Agreement: An agreement entered into between an The Employer hereby establishes the Employer's Deferred Compensation Plan, Employee "and the Employer, including any amendments or modifications In ereinafter referred to as the ':Plan'' The Plan L consists of the provisions set forth thereof. Such agreement shall fix the amount of Deferred Compensation, specify in this document. a preference among the investment alternatives designated by the Employer, The.primary purpose of this Plan is to provide retirement income and other designate the Employee's Beneficiary or Beneficiaries, and incorporate the " deferred benefits to the Em I ees of the Employerin accordance with.the pro- P oY terms, con&t'ions ,-.and provisions of the Plan by reference. visions of section 457 of the Internal Revenue Code of 1954, as amended. Section 2.08 Normal Compensation: The amount of compensation which This Plan shall be an agreement solely between the Employer and participat- would be. payable to a Participant by the Employer for a taxable year if no ing Employees. Joinder Agreement were in effect to defer compensation under -this Plan. Section 2.09 Normal Retirement Age: Age 70, unless the Participant has "ARTICLE II. DEFINITIONS elected an alternate Normal Retirement Age by written instrument delivered Section 2.01 Account: The bookkeeping account maintained •for each Par- to the Administrator prior to Separation from Service. A Participant's Normal ticipant reflecting the cumulative amount of the Participant's Deferred Com- Retirement Age determines (a) the latest time when benefits may commence • pensation, including any income, gains, losses, or increases or decreases in under this Plan (unless the Participant continues employment after Normal market value attributable to the Employer's investment of the Participant's "Retirement Age), and (b) the period during.which a Participant may utilize the Deferred Compensation, and further reflecting any distnbutions to the Participant catch -up limitation of Section 5.02 hereunder. Once a Participant has to any . or the Participant's Beneficiary and any fees or expenses charged, against such extent utilized :the:catch -up limitation of Section 5.02, his Normal Retirement Participant's Deferred Compensation. Age may not be changed. A Participant's alternate Normal Retirement Age may not be earlier than the Section 2.02 Administrator: The person or persons named to carry out car - earliest date that the Participant• will become eligible to retire and receive tain nondiscretionary administrative- functions under, the Plan, as-hereinafter unreduced retirement benefits under the Employer's basic retirement plan cover - described. The Employer may, remove any personas Administrator upon 60 ing the Pahicipanfand may not.be_later.than the date the Participant attains days' advance notice in writing to such person, in which case the'Employer age 70. If a Participant continues employment after attaining age 70, not hav- shall name another person or persons to act as Administrator. The Adminis ing previously elected an alternate Normal Retirement Age, the Participant's trator may resign upon.60 days' advance notice in writing, to the Ernplcyar, akemata lVom 2 Patirement Age shat! not be later than the mandatory retire in which case the Employer shall name another person or persons to act as ment age, if any, established by the Employer, or the age at which the Par- Administrator. -. _ ficipant actually separates from service if the Employer has no mandatory retire- Section 2.03 Beneficiary: The person or persons designated by the Par - -' ment.aga If the Participant will not become eligible to receive benefits under ticipant in his Joinder Agreement who shall receive any.benefts payable here- a basic retirement plan,maintained by the Employer, the Participant's alternate under in the event of the Participant's death. Normal Retirement Age may not be earlier than attainment of age 55 and may not be later than the attainment: of age .70. Section 2.04 Deferred Compensation: The amount of Normal Compensa Section 2.10 Participant: Any Employee who has joined the Plan pursuant Lion otherwise payable to the Participant which the Participant and the Employer to the requirements of Article IV. mutually agree to defer hereunder, y g any amount credited to a Participant's Section 2.11 Plan lbar; The calendar year Account by reason of a transfer under. Section 603, or any other amount which the, Employer agrees to credit to a Participant's Account. Section 2.12 Retirement: The first date upon which both of the following Section 2.05. Employee: Any individual who provides services for the shall have occurred with respect to a Participant: Separation from Service and attainment of.age 65. Employer, _whether as an employee of the Employer oral an independent con-, tractor, and who has been designated by the Employer as eligible to partici- Section 2.13 Separation from Service: Severance of the Participant's pate in the Plan. employment with the Employer which Constitutes 'Separation from service" within the - meaning of section 402 (e) 4 (A) (iii) of the Internal Revenue Code. Section 2.06 Includible Compensation: The amount of an Employee's com- In general, a Participant shall be deemed to have severed his employment pensation from the Employer for taxable year that is attributable to, services with the Employer for purposes of this Plan when, in accordance with the estab- perfonned for the.Employw and that is includible in the Employee's gross income lished practices of the Employer, the employment relationship is considered th for e taxable year for federal income tax purposes; such tens does not include " to have,actually terminated. In the case of a "Participant who is an indepen- any amount excludable from gross income under this Plan or any other plan dent contractor of the Employer. Separation from Service shall be deemed described in section 457(b) of the Internal Revenue Code, any amount exclud- to have occurred when the Participant's contract under which services are per - able from gross income under section 403(b) of the_Internal Revenue Code formed has completely expired and terminated, there is no foreseeable pos- or any other amount excludable from gross income for federal income tax pur- sibility that the.Employer will renew the contract or enter into a new contract poses. Includible Compensationshall be determined without regard:to any -. for the Participant's services, and it is not anticipated.thai the Participant will community property laws. become an Employee of the Employer 1 ARTICLE III. ADMINISTRATION Section 3.01 Duties of Employer: The Employer shall have the authority to make all discretionary decisions affecting the rights or benefits of Participants which may be required in the administration of this Plan. Section 3.02 Duties of Administrator: The Administrator, as agent for the Employer, shall perform nondiscretionary administrative functions in connec- tion with the Plan, including the maintenance of Participants' Accounts, the provision of periodic reports on the status of each Account and the disburse- ment of benefits on behalf of the Employer in accordance with the provisions of this Plan. ARTICLE IV. PARTICIPATION IN THE PLAN Section 4.01 Initial Participation: An Employee may become a Participant by entering into a Joinder Agreement prior to the beginning of the calendar month in which the Joinder Agreement is to become effective to defer com- pensation not yet earned. Section 4.02 Amendment of Joinder Agreement: A Participant may amend an executed Joinder Agreement to change the amount of compensa- tion not yet earned which is to be deferred (including the reduction of such future deferrals to zero) or to change his investment preference (subject to such restrictions as may result from the nature or terms of any investment made by the Employer). Such amendment shall become effective as of the begin- ning of the calendar month commencing after the date the amendment is executed. A Participant may at any time amend his Joinder Agreement to change the designated Beneficiary, and such amendment shall become effec- tive immediately. ARTICLE V. LIMITATIONS OF DEFERRALS Section 5.01 Normal Limitation: Except as provided in Section 5.02, the maximum amount of Deferred Compensation for any Participant for any taxa- ble year shall not exceed the lesser of $7,500.00 or 331/3 percent of the Par- ticipant's Includible Compensation for the taxable year. This limitation will ordinar- ily be equivalent to the lesser of $7,500.00 or 25 percent of the Participant's Normal Compensation. Section 5.02 Catch -Up Limitation: For each of the last three (3) taxable years of a Participant ending before his attainment of Normal Retirement Age, the maximum amount of Deferred Compensation shall be the lesser of: (1) $15,000 or (2) the sum of (i) the Normal Limitation for the taxable year, and (ii) that portion of the Normal Limitation for each of the prior taxable years of the Participant commencing after 1978 during which the Plan was in existence, compensation (if any) deferred under the plan was subject to the limitations set forth in section 5.01, and the Participant was eligible to participate in the Plan (or in-any other plan established under section 457 of the Internal Reve- nue Code by an employer within the same State as the Employer) in excess of the amount of Deferred Compensation for each such prior taxable year (including amounts deferred under such other plan). For purposes of this Section 5.02, a Participant's Includible Compensation for the current taxable year shall be deemed to include any Deferred Compensation for the taxable year in excess of the amount permitted under the Normal Limitation, and the Participant's Includible Compensation for any prior taxable year shall be deemed to exclude any amount that could have been deferred under the Normal Limitation for such prior taxable year Section 5.03 Section 403(b) Annuities: For purposes of Sections 5.01 and 5.02, amounts contributed by the Employer on behalf of a Participant for the purchase of an annuity contract described in section 403(b) of the Internal Revenue Code shall be treated as if such amounts constituted Deferred Com- pensation under this Plan for the taxable year in which the contribution was made and shall thereby reduce the maximum amount that may be deferred for such taxable year ARTICLE VI. INVESTMENTS AND ACCOUNT VALUES Section 6.01 Investment of Deferred Compensation: All investments of Participants' Deferred Compensation made by the Employer, including all prop- erty and rights purchased with such amounts and all income attributable thereto, Shall be the sole property of the Employer and shall not be held in trust for Participants or as collateral security for the fulfillment of the Employer's obliga- tions under the Plan. Such property shall be subject to the claims of general creditors of the Employer, and no Participant or Beneficiary shall have any vested interest or secured or preferred position with respect to such property or have any claim against the Employer except as a general creditor Section 6.02 Crediting of Accounts: The Participant's Account shall reflect the amount and value of the investments or other property obtained by the Employer through the investment of the Participant's Deferred Compensation. It is anticipated that the Employer's investments with respect to a Participant will conform to the investment preference specified in the Participant's Joinder Agreement, but nothing herein shall be construed to require the Employer to make any particular investment of a Participant's Deferred Compensation. Each Participant shall receive periodic reports, not less frequently than annually, show- ing the then - current value of his Account. Section 6.03 Transfers: A transfer will be accepted from an eligible State deferred compensation plan maintained by another employer and credited to a Participant's Account under this Plan. The Employer may require such documentation from the predecessor plan as it deems necessary to effectu- ate the transfer, to confirm that such plan is an eligible State deferred com- pensation plan within the meaning of section 457 of the Internal Revenue Code, and to assure that transfers are provided for under such plan. Any such trans- ferred amount shall not be treated as a deferral subject to the limitations of Article V, except that, for purposes of applying the limitations of Section 5.01 and 5.02, an amount deferred during any taxable year under the plan from which the transfer is accepted shall be treated as if it had been deferred under this Plan during such taxable year and compensation paid by the transferor employer shall be treated as if it had been paid by the Employer. Section 6.04 Employer Liability: In no event shall the Employer's liability to pay benefits to a Participant under Article VI exceed the value of the amounts credited to the Participant's Account; the Employer shall not be liable for losses arising from depreciation or shrinkage in the value of any investments acquired under this Plan. ARTICLE VII. BENEFITS Section 7.01 Retirement Benefits and Election on Separation from Service: Except as otherwise provided in this Article VII, the distribution of a Participant's Account shall commence during the second calendar month after the close of the Plan Year of the Participant's Retirement, and the distri- bution of such Retirement benefits shall be made in accordance with one of the payment options described in Section 702. Notwithstanding the forego- ing, the Participant may irrevocably elect within 60 days following separation from Service to have the distribution of benefits commence on a date other than that described in the preceding sentence which is at least 60 days after the date such election is delivered in writing to the Employer and forwarded to the Administrator but riut later than 60 days after the close of the Plan Year of the Participant's attainment of Normal Retirement Age or Separation from Service, whichever is later. Section 7.02 Payment Options: As provided in Sections 701 and 705, a Participant may elect to have the value of his Account distributed in accor- dance with one of the following payment options, provided that such option is consistent with the limitations set forth in Section 703: (a) Equal monthly, quarterly semi- annual or annual payments in an amount chosen by the Participant, continuing until his Account is exhausted; (b) One lump sum payment; (c) Approximately equal monthly quarterly, semi- annual or annual payments, calculated to continue for a period chosen by the Participant; (d) Payments equal to payments made by the issuer of a retirement annuity policy acquired by the Employer; (e) Any other payment option elected by the Participant and agreed to by the Employer. A Participant's election of a payment option must be made at least 30 days before the payment of benefits is to commence. If a Participant fails to make a timely election of a payment option, benefits shall be paid monthly under option (c) above for a period of five years. Section 7.03 Limitation on Options: No payment option may be selected by the Participant under Section 702 unless the present value of the payments to the Participant, determined as of the date benefits commence, exceeds 50 percent of the value of the Participant's Account as of the date benefits commence Present value determinations under this Section shall be made financial hardship to the Participant resulting from a sudden and unexpected by the Administrator in accordance with the expected return multiples set forth : illness, accident or disability of the Participant or'of a dependent (as defined in in section 1,72 -9 of the Federal Income Tax Regulations (or any successor pro- section 152(a) of the Internal Revenue Code) of the Participant. loss of the Par- vision to -such regulations). ticipant's property due to casualty, or other similar and extraordinary unforesee- Section 7.04 Poet - retirement Death Benefits:- Should the Participant die after he has begun to receive benefits under a payment option; the remaining payments, if any, under the payment option shall be payable to the Partici= pant's Beneficiary commencing within the 30 -day period commencing with the 31st day after the Participant's death, unless the Beneficiary elects pay. ment under a different payment option within 30 days of the Participant's death. In no event shall the Employer of Administrator be, liable to the Beneficiary for the amount of any payment made in the name of the Participant before the Administrator, receives proof of death of the Participant: Notwithstanding the foregoing, payments to a Beneficiary shall not extend over a period longer than (i) the Beneficiary's life expectancy if the Beneficiary is the Participant's spouse or (ii) fifteen (15) years if the Beneficiary is not the Participant's spouse. If no Beneficiary is designated in the Joinder Agreement, or if the designated Beneficiary does not-survive the Participant fora period of fifteen (15) days, then the commuted value of any remaining payments under the payment option shall be paid in a lump sum to the estate of the Participant. If the designated Beneficiary survives the Participant for a period of fifteen '(15) days, but does not continue to live for the remaining period of payments under the payment option.(as modified, if necessary, in conformity with the third sentence of this section), then the commuted value of any remaining payments under the pay- ment option shall be paid in a lump sum to the estate of the. Beneficiary. - Section 7.05 Pre - retirement Death Benefits: Should the Participant die before he has begun to receive the benefits provided by Section 701, the value of the Participant's Account shall'be payable to the Beneficiary commencing within the 30 -day period commencing on the 91st day after the Participant's death,.unless the Beneficiary elects a different benefit commencememdate. within the 90 days of the Participant's death. Such benefits shall be paid in approximately equal annual installments. over five.years, or over such shorter period as may be necessary to assure that the amount of any annual install - ment is not less than $3,500, unless the Beneficiary elects a different payment option within 90 days of the Participant's death. Notwithstanding.the forego- ing, benefits paid to a Beneficiary under this Section may commence no earlier than the'91st day after the Participant's death and no later'than 60 days after 'the later of the close of the Plan Year in which the Participant attained or would have attained Normal'Retirement'Age.orthe close of the Plan Year in which` the Participant separated from service. A Beneficiary who may elect a pay ment option, pursuant to the provisions of the preceding sentence shall be treated as if he were a Participant.for purposes of determining the payment options available under. Section 702; provided, however, that the payment option chosen by the Beneficiary" must peovide'for payments to the Beneficiary overi a period no longer than the life expectancy of the Beneficiary if the Benefici- ary is the Participant's spouse and must provide for payments over a period not in excess of fifteen (15) years if the Beneficiary is not the, Participant's spouse Section 7.08 Unforeseeable Emergeneles: In the event an unforeseeable emergency occurs, a Participant may apply to the,Employerto ieceive that part of the value of his account that is reasonably needed to satisfy the.emer -, gency need, If such,an applicationis approved by the Employer,.the Participant shall be paid only such amount as the Employer deems necessary to meet the emergency need, but payment shall not be made to the extent that the financial hardship may be relieved through cessation of deferral under the Plan, insurance or other reimbursement, or liquidationof,other assets to the extent such liquidation would not itself cause severe financial hardship. Anunforesee= able,emergency shall be deemed to-involve only circumstances of severe able circumstances arising `as a result of events beyond the control,of the Par- ticipant: The need to send a Participant's child to college or to purchase a new, home shall not be considered unforeseeable emergencies. The determination as to whether such -an unforeseeable. emergency exists shall be based on the merits'of each individual case. , ARTICLE VIII. NON - ASSIGNABILITY No Participant or Beneficiary shall have any right to commute. sell, assign, pledge, transferor otherwise convey or encumber the right to receive any pay- ments hereunder; which payments and rights are expressly declared to be non - assignable and non- transferable. ARTICLE IX. RELATIONSHIP. TO OTHER -PLANS AND _EMPLOYMENT AGREEMENTS' This Plan serves in addition to any other retirement, pension; or benefit plan or system presently in existence or hereinafter established for: the benefit of the Employer's employees; and participation hereunder shall not affect benefits receiv- able under any such plan or, system. Nothing contained in this Plan shall be deemed to.constitute an employment contract or agreement between any Par - ticipant and the Employer or to give any Participant the right to be retained in the %employ of the Employer Nor shall.anything herein be construed to modify the terms of Any employment contract or agreement between a Participant and the Employer. ARTICLE X. AMENDMENT OR TERMINATION OF PLAN The:Employer may at time amend this Plan - provided that it transmits such amendment in writing to the Administrator at least 30 days prior to the effective date of the amendment. The consent of the Administrator shall not be required inorder for such amendment to become effective,' but the Administrator shall be under no obligation. to continue acting as Administrator hereunder. if it disap- proves of such amendment. The Employer may at any timederminate this Plan. The Administrator may at anytime propose -an amendment to the-Plan by an instrument in writing:transmitted tothe.Employer at feast 30 days before the effec- tivedate of the amendment, Such - amendment shall become effective unless, With in such 30- dayperiod,;the,Employernotifies the Administrator in writing.that it disapproves such amendment, in,which case such amendmentshall not become effective. In the eventof such disapproval, the Administrator shall be under no obligation to continue -actin as Administrator hereunder. No-amendment or termination;of the'Plan: shall divest .any Participant.of any rights with.respect to compensation deferred before the date of the amendment or termination. ARTICLE.XI: APPLICABLE LAW This Plan. shall be construed under the taws of, the state where the Employer , is located, and is established with the intent that it meet the requirements of an 'eligible State deferred compensation plan ".under section 457 of the Internal Rev- enue Code of;1954 „asamended.:The provisions of this Plan shall be interpreted wherever possible in conformitywith the requirements.of..that section. _ ARTICLE. XII. GENDER AND NUMBER. The masculine pronoun, whenever, used herein, shallincludethe feminine pro- . nou,.and the singular "shall 'include the plural,,exceptwhere thebontext requires otherwise. CITY OF CAPE CANAVERAL DECLARATION OF TRUST OF ICMA RETIREMENT TRUST ARTICLE I. NAME AND DEFINITIONS Section 1.1 Name: The Name of the Trust, as amended and restated hereby, is the ICMA Retirement Trust. Section 1.2 Definitions: Wherever they are used herein, the following terms shall have the following respective meanings: (a) By -Laws. The By -Laws referred to in Section 4.1 hereof, as amended from time to time. (b) Deferred Compensation Plan. A deferred compensation plan established and maintained by a Public Employer for the purpose of providing retire- ment income and other deferred benefits to its employees in accordance with the provisions of section 457 of the Internal Revenue Code of 1954, as amended. (c) 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 its 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. --1 (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 Directors 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. ()) Public Employee Trustees, 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 Trustees. Public Employers who serve as trustees of the Qualified Plans. (1) Public Employer. A unit of state or local government, or any agency or instrumentality thereof, that 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 income to its employees which satisfies the qualifi- cation requirements of Section 401 of the Internal Revenue Code, as amended. (n) RC. The International City Management Association Retirement Corpo- ration. APPENDIX.B (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 Quali- fied Plans. The Trust Property shall include any income resulting from the invest- ment of the amounts so held. (q) 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 Tlrust 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. (a) 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 ICMA/RC 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. (b) No person may serve as a Trustee for more than one term in any ten -year period. Section 3.2 Election and Tenn. (a) 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 Employer. Section 3.5 Vacancies: 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 ICMAIRC Trustee) as the person who has ceased to be a Trustee. An appointment of a Trustee may be made'ih 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 instru- ment certifying the existence of'sucfi 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 pubI 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'besYinterest of the Retire ment Trust created hereby, without liability for interest thereon; (f) accept and retain for such time as1hey 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 Property. to be registered in the_. name of the Retirement Trust or in the name of a nomi- 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; @ 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; . . - (1) 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 connec- tion with the Deferred Compensation Plans, Qualified Plans, or the Employer 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 properly 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 Retiremen i t Trust to employers eligible to maintain a Deferred Compensation Plan under Section 457 or 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 sep- arate accounts as are required under, and consistent with-, the Deferred Com- pensation or Qualified Plan of each Public Employer; and (v) do all such acts, take all such proceedings, and exercise all such rights 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 Employer 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 more 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 such 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 perform 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 familiar with such matters would use in the, conduct of an enterprise of a like character and with like aims. Section 5.2 Liability: The Trustees shall not be liable for any mistake of judg- ment or other action taken 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 the opinion of counsel, or upon reports made to the Retirement Trust by any of 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 accordance with the standard of care set forth in Section 51. Section 5.3 Bond: No Trustee shall be obligated to give any bond or other security for the performance 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 finan- 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 of 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.