HomeMy WebLinkAboutRes 1991-0940
RESOLUTION NO. 1991 -09
A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE TOWN
OF FOUNTAIN HILLS, ARIZONA, ESTABLISHING THE ICMA
RETIREMENT CORPORATION PROTOTYPE MONEY PURCHASE
RETIREMENT PLAN AND TRUST FOR THE TOWN MANAGER; EXECUTING
THE DECLARATION OF TRUST OF THE ICMA RETIREMENT TRUST;
PROVIDING FOR THE DESIGNATION OF A TRUSTEE AND
COORDINATOR FOR THE PROGRAM; AND DECLARING AN EMERGENCY.
WHEREAS, the Employer has employees rendering valuable
services; and
WHEREAS, the establishment of a money purchase retirement plan
benefits employees by providing funds for retirement and funds for
their beneficiaries in the event of death; and
WHEREAS, the Employer desires that its money purchase
retirement plan be administered by the ICMA Retirement Corporation
and that the funds held under such plan be investd in the ICMA
Retirement Trust, a trust established by public employers for the
collective investment of funds held under their money purchase
retirement plans and deferred compensation plans;
(XV, NOW, THEREFORE, BE IT RESOLVED by the Mayor and Common Council
of the Town of Fountain Hills, Arizona, that the Employer, unless
it has already done so, hereby establishes a money purchase
retirement plan in the form of the ICMA Retirement Corporation
Prototype Money Purchase Retirement Plan and Trust, pursuant to the
specific provisions of the Adoption Agreement (executed copy
attached hereto). The plan and trust adopted by the Employer
shall be maintained for the exclusive benefit of eligible employees
and their beneficiaries; and
BE IT FURTHER RESOLVED that the Employer hereby executes the
Declaration of Trust of the ICMA Retirement Trust, attached hereto;
and
BE IT FURTHER RESOLVED that the Employer, unless it has
already done so, hereby agrees to serve as trustee under the money
purchase retirement plan and to invest all funds held under such
plan in the ICMA Retirement Trust; and
BE IT FURTHER RESOLVED that the Town Manager shall be the
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 Employer, any
required votes under the program. Administrative duties to carry
out the program may be assigned to the appropriate departments.
Resolution 1991 -09
Page 1 of 12
BE IT FURTHER RESOLVED that the immediate operation of this
�* Resolution is necessary for the preservation of the public peace,
health, and safety and therefore an emergency is hereby declared to
exist, and this Resolution shall be in full force and effect
immediately after its passage and adoption.
PASSED AND ADOPTED BY THE Mayor and Common Council of the Town
of Fountain Hills, Arizona, this 21st day of March, 1991.
��
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ATTEST:
Cassie B. Hansen, Town Clerk
APPROVED AS TO FORM:
O��i�i(ti1.�Mn
® William E. Farrell, Town Attorney
R E ED BY:
Paul L. Nordin, Town Manager
® Resolution 1991 -09
Page 2 of 12
ICMA
RETIREMENT
CORPORATION
PROTOTYPE MONEY PURCHASE PLAN & TRUST
ADOPTION AGREEMENT
The Employer hereby establishes a Money Purchase Plan and Trust to be known as
Tbm of Fountain Hills Management (The "Plan ") in the form of the ICMA Retirement
(name of plan)
Corporation Prototype Money Purchase Plan and Trust.
This Plan is an amendment and restatement of an existing defined contribution pension plan. 0 Yes IX No
If yes, please specify the name of the defined contribution pension plan which this Plan hereby amends and
restates:
A. Employer:
Tom of Fountain Hills
B. The Effective Date of the Plan shall be the first day
of the Plan Year during which the Employer adopts
the Plan, unless an alternate Effective Date is hereby
specified: March 21
C. Plan Year will mean:
( ) the 12- consecutive month period which coincides
with the limitation year. (See section 5.05(h) of
the Plan.)
( ) the 12- consecutive month period commencing
on March 21 and each anniversary thereof.
D. ELIGIBILITY REQUIREMENTS:
1. The following group or groups of Employees are
eligible to participate in the Plan:
All Employees
All Full -Time Employees
Salaried Employees
Non -union Employees
Management Employees
Public Safety Employees
General Employees
X Ot t hheerl(s pecify below) Managex
2. The Employer hereby waives or reduces the
requirement of a twelve -month Period of Service for
participation. The period of service shall be
N/A (write N/A if an Employee is eligible
to participate upon employment).
If this waiver or reduction is elected, it shall apply
to all Employees within the Covered Employment
Classification.
3. A minimum age requirement is hereby specified for
eligibility to participate. The minimum age require -
,' ment is Z (not to exceed age 21). Write
N/A if no minimum age is declared.
4. Normal Retirement Age shall be 62 (not
to exceed age 65). If a different Normal Retirement
Age is established for one or more groups of
Employees, please specify.
Age
E. CONTRIBUTION PROVISIONS
Group
1. The Employer shall contribute as follows (choose
one):
(x) Fixed Percentage Employer Contributions With
Or Without Mandatory Employee Contributions.
The Employer shall contribute on behalf of
each Participant 6 % of Earnings
for the Plan Year (subject to the limitations of
Article V of the Plan). Each Participant is
required to contribute 3 % of
Earnings for the Plan Year as a condition of par-
ticipation. (Write "0" if no contribution is
required.)
The Employer hereby elects to "pick up" the
Mandatory/Required Participant Contribution.
X Yes
No
[Note to Employer: Neither an opinion letter
issued by the Internal Revenue Service with
respect to the prototype plan, nor a determina-
tion letter issued •to an adopting employer is a
ruling by the Internal Revenue Service that Par-
ticipant contributions that are picked up by the
Employer are not includable in the Participant's
gross income for federal income tax purposes.
The Employer may seek such a ruling.
Resolution 1991 -09
Page;,3 of 12
Picked up contributions are excludable from
the Participant's gross income under section
414(h)(2) of the Internal Revenue Code of 1986
only if they meet the requirements of Rev. Rule
81 -35, 1981 -1 C.B. 255. Those requirements are
(1) that the Employer must specify that the con-
tributions, although designated as employee
contributions, are being paid by the Employer
in lieu of contributions by the employee; and
(2) the employee must not have the option of
receiving the contributed amounts directly
instead of having them paid by the Employer
to the plan.]
( ) Fixed Dollar Employer Contributions With Or
Without Mandatory Employee Contributions.
The Employer shall contribute on behalf of
each Participant $ for the Plan
Year (subject to the limitations of Article V of
the Plan). Each Participant is required to con-
tribute % of Earnings or
$ for the Plan Year as a condition
of participation. (Write "0" if no contribution is
required.)
The Employer hereby elects to "pick up" the
Mandatory/Required Participant Contribution.
Yes No
[See the above Note to Employer regarding
the tax treatment of picked up contributions.]
Employer Percentage Match Of Employee
Contributions.
The Employer shall contribute on behalf of
each Participant an amount determined as
follows (subject to the limitations of Article V of
the Plan):
of the contributions made by
the Participant for the Plan Year (not including
Participant contributions exceeding
of Earnings of
PLUS % of the contributions
made by the Participant for the Plan Year in
excess of those included in the above
paragraph (but not including Participant con-
tributions exceeding in the aggregate
of Earnings or $ ).
Employer contributions on behalf of a Partici-
pant for a Plan Year shall not exceed
$ or % of Earnings,
whichever is more or less.
2. Each Participant may make a voluntary, after -tax
contribution, subject to the limitations of Section
4.04 and Article V of the Plan.
X Yes No
3. Employer contributions and Participant contribu-
tions shall be contributed to the Trust in accordance
with the following payment schedule:
every two weeks (bi— weekly)
F. EARNINGS
Earnings, which form the basis for computing
Employer contributions, are defined as all of each
Participant's:
(X) W -2 earnings for the plan year which are sub-
ject to tax under section 3101(a) of the Internal
Revenue Code without the dollar limitation of
section 3121(a), or which would be subject to
such tax but for section 3121(b)(7); plus any con-
tributions through a salary reduction agreement
to a cash or deferred plan under section 401(k),
to a tax deferred annuity under section 403(b),
and compensation voluntarily deferred under an
eligible deferred compensation plan under sec-
tion 457; and excluding overtime compensation
and bonuses.
( ) Earnings as defined above, plus the following
(check whichever is applicable, if any):
Overtime Bonuses
which are actually paid within such Plan Year. , J
G. LIMITATION ON ALLOCATIONS
If you maintain or ever maintained another qualified
plan in which any participant in this plan is (or was)
a participant or could possibly become a participant,
you must complete this section.
1. If the participant is covered under another qualified
defined contribution plan maintained by the
employer, other than a master or prototype plan:
( ) The provisions of section 5.02(a) through (g) will
apply as if the other plan were a master or pro-
totype plan.
( ) Other Method. (Provide the method under
which the plans will limit total annual additions
to the maximum permissible amount, and will
properly reduce any excess amounts, in a man-
ner that precludes employer discretion.)
2. If the participant is or has ever been a participant
in a defined benefit plan maintained by the
employer:
Resolution 1991 -09
Page 4 of 12
A
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( } If the limitation in section 5.04 would be ex-
ceeded, then the participant's projected annual
benefit under the defined benefit plan shall be
reduced in accordance with the terms thereof
to the extent necessary to satisfy such limita-
tion. If such plan does not provide for such
reduction, or if the limitation is still exceeded
after the reduction, annual additions shall be
reduced to the extent necessary in the manner
described in sections 5.01 through 5.03.
( ) Other Method. (Note to Employer: Provide
below language which will satisfy the 1.0 limita-
tion of section 415(e) of the Code. Such
language must preclude Employer discretion.
See section 1.415 -1 of the Regulations for
guidance.)
3. The limitation year is the following 12- consecutive
month period:
H. VESTING PROVISIONS
The Employer hereby specifies the following vesting
schedule, subject to 1) the minimum vesting re-
quirements as noted (either Type 1 or Type 2) and 2)
the concurrence of the Plan Administrator.
Type 1
Type 2
Years of Specified Minimum
Minimum
Service Percent Vesting
Vesting
Completed �Vesting Requirements"
Requirements "
Zeros 0 °/o No minimum
No Minimum
One % No minimum
No Minimum
Two % No minimum
No Minimum
Three % No minimum
No Minimum
Four °/o Not less than 40%
No Minimum
Five % Not less than 45%
Must equal 100%
Six °/o Not less than 50%
Must equal 100%
Seven % Not less than 60%
Must equal 100%
Eight % Not less than 70%
Must equal 100%
Nine °/o Not less than 80%
Must equal 100%
Ten % Not less than 90%
Must equal 100%
Eleven, 100 % Must equal 100%
Must equal 100%
or more
("These minimum vesting requirements conform to the
IRS's Four -Forty and Five -year Cliff schedules, which are
the most restrictive schedules for which an advance deter-
mination ruling for qualification will be issued by the IRS
without a pre -test for nondiscrimination.)
I. INVESTMENT OPTION
A Participant may direct his/her investment
only in an investment option which provides
a guarantee of principal.
A Participant may direct his /her investment
of not more than % in an in-
vestment option which does not provide any
X guarantee of principal.
A Participant may direct his/her investment,
without restriction, among various invest-
ment options available under the Trust.
Specify any other investment restrictions
J. BENEFITS UPON SEPARATION
1. Upon separation from service for reason other than
death, disability or attainment of Normal Retirement
Age, the Participant may elect to commence receiv-
ing benefits from the following accounts, without
regard to age:
a) Employer Contribution Account (Nonforfeitable
Interest)
X Yes No
b) Participant Contribution Account (if applicable)
X Yes No
c) Participant Portable Benefits Account
X Yes No
2. If "no" to any of the above, the earliest stage is
, at which the Employer will allow a distribu-
tion from the Employer Contribution Account, the
Participant Portable Benefits Account, and /or the
Participant Contribution Account, if applicable.
3. Notwithstanding Section J(2) above, a distribution
shall be made pursuant to Section 9.05 of the Plan,
De Minimis Accounts. Further, the Participant shall
be entitled to make a rollover contribution pursuant
to Section 9.03 of the Plan.
K. Loans are permitted under the Plan, as provided in
Article XIII:
Yes X No
L. WAIVER OF FUNDING (complete this section only if
waiver of minimum funding applied for)
The Employer, if unable to satisfy the minimum funding
standard for a given Plan-Year, may apply to the Inter-
nal Revenue Service for 'a waiver of the minimum fun-
ding standard. If the waiver is granted, the following
provisions shall apply and suspend any contrary pro-
vision:
Resolution 1991 -09
Page 5 of 12
M.The Employer hereby attests that it is a unit of state
or local government or an agency or instrumentality of
one of more units of state or local government.
N. The Employer hereby appoints the ICMA Retirement
Corporation as the Plan Administrator pursuant to
the terms and conditions of the ICMA RETIREMENT
CORPORATION PROTOTYPE MONEY PURCHASE
PLAN AND TRUST.
The Employer hereby agrees to the provisions of the
Plan and Trust.
0. An adopting Employer may not rely on an opinion let-
ter issued by the National Office of the Internal
Revenue Service as evidence that the Plan is qualified
under Section 401 of the Internal Revenue Code. In
order to obtain reliance with respect to plan qualifica-
tion, the Employer must apply to the appropriate key
district office for a determination letter.
This Adoption Agreement may be used only in conjunc-
tion with basic Plan document number 01.
In Witness Whereof, the Employer hereby causes this Agreement to be executed on this a �} day of
�.0.rc�% 199\ .
EMPL
By:
Title:
Attest:
Accepted: ICMA RETIR €MENT CORVRATION
By:
Title:
Attest:
!A,
'J b L 88f1 16.
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401005 -1189 Resolution 1991 -09 46
Page 6 of 12
DECLARATION OF TRUST
OF ICMA RETIREMENT CORPORATION
ARTICLE I. NAME 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) Bylaws. The bylaws 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
retirement income and other deferred benefits to
its employees in accordance with the provision 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 Compensation agreements with
its employees or in connection with its Qualified
Plan.
(e) Guaranteed Investment Contract. A contract
entered into bythe Retirement 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
members, or former members, 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.
(1) Portfolios. The Portfolios of investment established
by the Investment Adviserto the Retirement Trust,
under the supervision of the Trustees, for the
purpose of providing investments for the Trust
Property.
(j) Public Employee Trustees. Those Trustees
elected bythe Public Employers who, in accordance
with the provision 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
qualification requirements of Section 401 of the
Internal Revenue Code, as amended.
(n) RC. The International City Management
Association Retirement Corporation.
(o) Retirement Trust. The Trust created by the
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 pursuantto Qualified Plans. TheTrust
Property shall include any income resulting from
the investment to the amounts so held.
(q) Trustees. The Public Employee Trustees and
ICMA/RCTrustees elected bythe PublicEmployers
to serve as members of the Board of Trustees of
the Retirement Trust.
ARTICLE 11. 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 pprovide for the commingled investment of funds
held by the Public Employers in connection with their
Deferred Compensation and Qualified Plans. The
Trust Property shall be invested in the Portfolios, in
Guaranteed Investment Contracts, and in other in-
vestments 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 por-
tion of the Trust Property allocable to the Deferred
Compensation Plans. The portion of the Trust Prop-
erty allocable to the Qualified Plans shall be held for
the Public Employer Trustees forthe 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 Trust-
ees. 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 thetime 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 Term: (a) Except for the Trust-
ees 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
Resolution 1991 -09
Page 7 of 12
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 accor-
dance 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 re-
moved 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 avacancy shall occur in the event
of the death, resignation, removal, adjudicated incom-
petence orother 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 person appointed must
be the same type of Trustee (i.e., Public Employee
Trustee 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 appointment shall not become
effective prior to such retirement or resignation.
Whenever 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
instrument certifying the existence of such vacancy
signed by a majority of the Trustees shall be conclu-
sive 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 representatives of the Public Employers collec-
tively.
ARTICLE IV. POWERS OF TRUSTEES
Section 4.1 General Powers: The Trustees shall have the
powerto 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 the other investments for the Trust
Property and the payment of reasonable 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; Resolutio
Page 8
(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 9 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
Retirement Trust created hereby without liability
for interest thereon;
(f) accept and retain for such time as they may seem
advisable any securities orotherproper yreceived
or acquired by them as Trustees hereunder,
whether or not such securities or other property
would normally be purchased as investment
hereunder;
(g) cause any securities or other property heid as part
of the Trust Property to be registered in the name
of the Retirement Trust or in the name of a nominee,
and to hold any investments in bearerfrom, 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 transfer and conveyance and any
and all other instruments that maybe necessary or
appropriate to carry out the powers herein granted;
(1) 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
conversion privileges, subscription rights, or other
options, and make any payments incidental thereto;
oppose, or consent to, or otherwise participate in,
corporate reorganizations or to other changes
affecting corporate securities, and delegate
discretionary powers and pay any assessments or
charges in connection 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 connection 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
advisable, 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 or any such
borrowing;
(1) incur reasonable expenses as required for the
operation of the Retirement Trust and deduct such
expenses from of the Trust Property;
(m) pay expenses properly allocable to the Trust
Property incurred in connection with the Deferred
Compensation Plans, Qualified Plans, or the
Employer Trusts and deduct such expenses from
the 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
1991 -09 existing or future laws upon, or in respect of, the
n
of 12
Trust Property and allocate any such taxes to the
appropriate accounts;
(o) adopt, amend and repeal the bylaws, provided
that such bylaws 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 documents 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 delegation 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 separate accounts as are required under,
and consistent with, the Deferred Compensation
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 mention 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 property shall be made to, or on behalf of,
the Public Employer or Public Employer Trustee, in
accordance with the terms of the Deferred Compen-
sation 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 Em foyers, Public Employer Trustees or
other Trustee of the Employer Trusts without ascer-
taining whether such payments are in compliance with
the provision of the Deferred Compensation or Quali-
fied 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 Trust-
ees to execute any instrument or document on behalf
of all, including but not limited to the signing or en-
dorsement of any check and the signing of any appli-
cations, insurance and other contracts, 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 connection with Deferred Compensa-
tion Plans and Public Employer Trustees pursuant to
Qualified Plans, and shall perform such acts with the
care, skill, prudence and diligence in the circum-
stances then prevailing that a prudent person acting 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 judgment 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, accoun-
tants, appraisers or other experts or consultant se-
lected 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 Prope by reason of any investment made in
good faith and rty in accordance with the standard of care
set forth in Section 5.1.
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 transac-
tions of the Retirement Trust, including financial statements
which shall be certified by independent public accountants
chosen by the Trustees.
ARTICLE VII. DURATION OR AMENDMENT OF
RETIREMENT TRUST
Section 7.1 Withdrawal: A Public Employer or Public
EmployerTrustee may, at any time, withdraw from this
Retirement Trust by delivering to the Board of Trust-
ees a written statement of withdrawal. In such state-
ment, the Public Employer or Public Employer Trustee
shall acknowledge that the Trust Property allocable to
the Public Employer is derived from compensation
deferred by employees of such Public Employer pur-
suant to its Deferred Compensation 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 ma1jority of the Public
Employers, each casting one vote. Upon termination,
all of the Trust Property shall be paid out to the Public
Emplo ers, 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 that 25 percent of
the Public Employers, is submitted to the Trustees.
ARTICLE VIII. MISCELLANEOUS
Section 8.1 Governing Law: Except as otherwise re-
quired 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 ex-
ecuted 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.
ICMA RETIREMENT CORPORATION, CORPORATE HEADQUARTERS, 777 NORTH CAPITOL STREET, NE, WASHINGTON, DC 20002.4240
Resolution 1991 -09
Page 9 of 12
TRUST AGREEMENT WITH THE
ICMA RETIREMENT CORPORATION
AGREEMENT made by and between the Employer named
reinvest the principal and income of the Trust Funds
in the attached resolution and the International City Manage-
and keeptheTrust Funds invested, without distinction
ment Association Retirement Corporation (hereinafter the
between principal and income, in securities or in
"Trustee" or "Retirement Corporation "), a nonprofit corpora-
other property, real or personal, wherever situated,
tion organized and existing under the laws of the State of
including, but not limited to, stocks, common or
Delaware, for the purpose of investing and otherwise adm in-
preferred, bonds, retirement annuity and insurance
istering the funds set aside by Employers in connection with
policies, mortgages and other evidences of indebt-
deferred compensation plans established under section 457
edness or ownership, investment companies, com-
of the Internal Revenue Code of 1954 (the "Code "). This
mon or group trust funds, or separate and different
Agreement shall take effect upon acceptance by the Trustee
types of funds (including equity, fixed income) which
of its appointment by the Employer to serve as Trustee in
fulfill requirements of state and local governmental
accordance herewith as set forth in the attached resolution.
laws, provided, however, that the Employer may
WHEREAS, the Employer has established a deferred com-
"Plan ");
direct investment by the Trustee among available
investment alternatives in such proportions as the
pensation plan under section 457 of the Code (the
Employer authorizes in connection with its deferred
WHEREAS, in order that there will be sufficient funds avail-
compensation agreements with its employees. For
able to discharge the Employer's contractual obligations
these purposes, these Trust Funds may be com-
under the Plan, the Employerdesires to set aside periodically
mingled with Trust Funds set aside by other Em-
amounts equal to the amount of compensation deferred;
ployers pursuant to the terms of the ICMA Retire-
WHEREAS, the funds set aside, together with any and all
ment Trust. Investment powers vested in the Trustee
by the Section may be delegated by the Trustee to
assets derived from the investment thereof, are to be exclu-
any bank, insurance ortrust company, or any invest -
sively within the dominion, control, and ownership of the
Employer, and subject to the Employer's absolute right of
ment adviser, manager or agent selected by it.
withdrawal, no employees having any interest whatsoever
Section 2.2 Administrative Powers of the Trustee:
therein;
The Trustee shall have the power in its discretion:
NOW, THEREFORE, this Agreement witnesseth that (a) the
(a) To purchase, or subscribe for, any securities or
Employer will pay monies to the Trustee to be placed in
other property and to retain the same in trust.
deferred compensation accounts for the Employer; (b) the
Trustee covenants that it will hold said sums, and any other
(b) To sell, exchange, convey, transfer or otherwise
funds which it may receive hereunder, in trust for the uses
dispose of any securities or other property held
by ft, by private contract, or at public auction. No
and purposes and upon the terms and conditions hereinafter
stated; and (c) the parties hereto agree as follows:
person dealing with the Trustee shall be bound
to see the application of the purchase money or
ARTICLE I. GENERAL DUTIES OF THE PARTIES
to inquire into the validity, expediency, orpropriety
of any such sale or other disposition.
Section 1.1 General Duty of the Employer: The Em-
ployer shall make regular periodic payments equal
(c) To vote upon any stocks, bonds, or other
to the amounts of its employees compensation
which are deferred in accordancewith theterms and
securities; to give general or special proxies or
powers of attorney with or without power of
conditions of the Plan tothe extentthat such amounts
are to be invested under the Trust.
substitution; to exercise any conversion
privileges, subscription rights, or other options,
and to make any payments incidental thereto; to
Section 1.2 General Duties of the Trustee: The Trustee
oppose, orto consent to, or otherwise participate
shall hold all funds received by it hereunder, which,
in, corporate reorganizations or other changes
together with the income therefrom, shall constitute
affecting corporate securities, and to delegate
the Trust Funds. It shall administer the Trust Funds,
discretionary powers, and to pay any
collect the income thereof, and make payments
assessments or charges in connection therewith;
therefrom, all as hereinafter provided. The Trustee
and generally to exercise any of the powers of an
shall also hold all Trust Funds which are transferred
owner with respect to stocks, bonds, securities
to ft as successor Trustee by the Employer from
or other property held as part of Trust Funds.
existing deferred compensation arrangements with
its Employees under plans described in section 457
(d) To cause any securities orother property held as
of the Code. Such Trust Funds shall be subject to all
of the terms and provisions of this Agreement.
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
ARTICLE il. POWERS AND DUTIES OF THE TRUSTEE IN
shall at all times show that all such investments
INVESTMENT, ADMINISTRATION, AND DISBURSEMENT
are a part of the Trust Funds.
f OF THE TRUST FUNDS.
�i
(e) To borrow or raise money for the purpose of the
Section 2.1 Investment Powers and Duties of Trustee:
Trust in such amount, and upon such terms and
The Trustee shall have the power to invest and
conditions, asthe Trustee shall deem advisable;
Resolution
1991 -09
Page 10
of 12
and, for any sum so borrowed, to issue its
promissory note as Trustee, and to secure the
repayment thereof by pledging all, or any part, of
the Trust Funds. No person 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 securities or other property
received or acquired by it as Trustee hereunder,
whether or not such securities or other property
would normally be purchased as investment
hereunder.
(h) To make, execute, acknowledge, and deliver
any and all documents of transfer and
conveyance and any and all other instruments
that may be necessary or appropriate to carry
out the powers herein granted.
(1) To settle, compromise, or submit to arbitration
any claims, debts, or damages due or owing to
orfrom the Trust Funds; to commence ordefend
suits or legal or administrative proceedings; and
to represent the Trust Funds in all suits and legal
and administrative proceedings.
(j) To do all such acts, take all such proceedings,
and exercise all such rights and privileges,
although not specifically mentioned herein, as
the Trustee may deem necessary to administer
the Trust Funds and to carry out the purposes of
this Trust.
Section 2.3 Distributions from the Trust Funds: The
Employer hereby appoints the Trustee as its agent
for the purpose of making distributions from the
Trust Funds. In this regard the terms and conditions
set forth in the Plan are to guide and control the
Trustee's power.
Section 2.4 Valuation of Trust Funds: At least once a
year as of Valuation Dates designated 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 the
Valuation Date, or, in the absence of readily
ascertainable market values as the Trustee shall
determine, in accordance with methods consistently
followed and uniformly applied.
ARTICLE 111. FOR PROTECTION OF TRUSTEE
Section 3.1 Evidence of Action by Employer: The
Trustee may rely upon any certificate, 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
Employer. No communication shall be binding upon
any of the Trust Funds or Trustee until they are
received by the Trustee.
Section 3.2 Advice of Counsel: The Trustee may con-
sult with any legal counsel with respect to the
construction of this Agreement, its duties hereunder,
or any act, which it proposes to take or omit, and
shall not be liable for any action taken or omitted in
good faith pursuant to such advice.
Resolution
Section 3.3 Miscellaneous: The Trustee shall use ordi-
nary care and reasonable diligence, but shall not be
liable for any mistake of judgment or other action
taken in good faith. The Trustee 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 the Agreement.
The Trustee's duties and obligations shall be limited
to those expressly imposed upon it by this Agree-
ment.
ARTICLE IV. TAXES, EXPENSES AND COMPENSATION
OF TRUSTEE
Section 4.1 Taxes: The Trustee shall deduct from and
charge against the Trust Funds any taxes on the
Trust Funds or the income thereof or which the
Trustee is required to pay with respect to the interest
of any person therein.
Section 4.2 Expenses: The Trustee shall deduct from
and charge against the Trust Funds all reasonable
expenses incurred by the Trustee in the administration
of the Trust Funds, including counsel, agency, in-
vestment advisory, and other necessary fees.
ARTICLE V. SETTLEMENT OF ACCOUNTS
The Trustee shall keep accurate and detailed accounts of
all investments, receipts, disbursements, and other transac-
tions hereunder.
Within ninety (90) days after the close of each fiscal year,
the Trustee shall render in duplicate to the Employer an
account of its acts and transactions as Trustee hereunder. If
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.
If within ninety (90) days after the mailing of the account
or any amended account the Employer has not filed with the
Trustee notice of any objection to any act or transaction of the
Trustee, the account or amended account shall become an
account stated. If any objection has been filed, and if the
Employer is satisfied that it should be withdrawn or if the
account is adjusted to the Employer's satisfaction, the Em-
ployer shall in writing filed with the Trustee signify approval of
the account and it shall become an account stated.
When an account becomes an account stated, such
account shall be finally settled, 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 parties.
The Trustee shall have the right to apply at any time to a
court of competent jurisdiction for the judicial settlement of its
account.
ARTICLEVI. RESIGNATION AND REMOVAL OF TRUSTEE
Section 6.1 Resignation of Trustee: The Trustee may
resign at any time by filing with the Employer its
written resignation. Such resignation shall take ef-
fect sixty (60) days from the date of such filing and
upon appointment of a successor pursuant to Sec-
tion 6.3., whichever shall first occur.
Section 6.2 Removal of Trustee: The Employer may
remove the Trustee at any time by delivering to the
Trustee a written notice of its removal and an ap-
pointment of a successor pursuant to Section 6.3.
Such removal shall not take effect prior to (60) days
from such delivery unless the Trustee agrees to an
earlier effective date.
1991 -09
Page 11 of 12
Section 6.3 Appointment of Successor Trustee: The
appointment of a successorto the Trustee shall take
effect upon the delivery to the Trustee of (a) an
instrument in writing executed by the Employer
appointing such successor, and exonerating such
successor from liability for the acts and omissions 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 force 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 Transfer of Funds to Successor: Upon the
resignation or removal of the Trustee and appoint-
ment of a successor, and after the final account of
the Trustee has been properly settled, the Trustee
shall transfer and deliver any of the Trust Funds
involved to such successor.
ARTICLE VII. DURATION AND REVOCATION OF TRUST
AGREEMENT
Section 7.1 Duration and Revocation: This Trust shall
continue 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
termination or revocation shall be given to the Trustee
by the Employer. Upon termination 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
compensation to Employees in accordance with the
terms of the Plan.
Section 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) deliv-
ery to the Trustee of a written instrument of amend-
ment, and (b) the endorsement by the Trustee on
such instrument of its consent thereto.
ARTICLE VIII. MISCELLANEOUS
Section 8.1 Laws of the District of Columbia to Gov-
ern: This Agreement and the Trust hereby created
shall be construed and regulated by the laws of the
District of Columbia.
Section 8.2 Successor Employers: The "Employer" shall
include any person who succeeds the Employer and
who thereby becomes subject to the obligations of
the Employer under the Plan.
Section 8.3 Withdrawals: The Employer may, at any
time, and from time to time, withdraw a portion or all
of Trust Funds created by this Agreement.
Section 8.4 Gender and Number: The masculine in-
cludes the feminine and the singular includes the
plural unless the context requires another meaning.
ICMA RETIREMENT CORPORATION, CORPORATE HEADQUARTERS, 777 NORTH CAPITOL STREET, NE, WASHINGTON, DC 20002 -4240
Resolution 1991 -09
Page 12 of 12