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HomeMy WebLinkAbout00-74 - Deferred Compensation 401(a) Money Purchase PlanI RESOLUTION NO. 00-74 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COSTA MESA, CALIFORNIA, ESTABLISHING A DEFERRED COMPENSATION 401(a) MONEY PURCHASE PLAN FOR PARTICIPATING EXECUTIVE MANAGEMENT EMPLOYEES. WHEREAS, the City of Costa Mesa (the Employer) has employees rendering valuable services, and establishing 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 City desires that its money purchase retirement plan be administered by the ICMA Retirement Corporation, and that the funds held under such plan be invested in the ICMA Retirement Trust, a trust established by public employers for the collective investment of funds held under their retirement and deferred compensation plans; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Costa Mesa hereby establishes a money purchase retirement plan (the "Plan") in the form of the ICMA Retirement Corporation Governmental Money Purchase Plan & Trust, pursuant to the specific provisions of the Adoption Agreement attached hereto. The plan shall be maintained for the exclusive benefit of eligible employees and their beneficiaries. BE IT FURTHER RESOLVED that the Employer hereby executes the Declaration of Trust of the ICMA Retirement Trust, attached hereto, intending this execution to be operative with respect to any retirement or deferred compensation plan subsequently established by the Employer, if the assets of the plan are to be invested in the ICMA Retirement Trust. BE IT FURTHER RESOLVED that the Employer hereby agrees to serve as trustee under the Plan and to invest funds held under the Plan in the ICMA Retirement Trust. BE IT FINALLY RESOLVED that the Director of Finance shall be the coordinator for the Plan; shall receive reports, notices, etc. from the ICMA Retirement Corporation or the ICMA Retirement Trust; shall cast, on behalf of the Employer, any required votes under the ICMA Retirement Trust; may delegate any administrative duties relating to the Plan to appropriate departments; and is authorized to execute all necessary agreements with the ICMA Retirement Corporation incidental to the administration of the Plan. PASSED AND ADOPTED this 2"d day of October, 2000 1 M-a yor of th6 City of Costa Mesa ATTEST: Deputy City Cle I of the City of Costa Mesa STATE OF CALIFORNIA ] COUNTY OF ORANGE ) ss CITY OF COSTA MESA ] I, MARY T. ELLIOTT, Deputy City Clerk and ex -officio Clerk of the City Council of the City of Costa Mesa, hereby certify that the above and foregoing Resolution No. 00-74 was duly and regularly passed and adopted by the said City Council at a regular meeting thereof, held on the 2' day of October, 2000, by the following roll call vote: AYES: Monahan, Cowan, Erickson, Somers, Dixon NOES: None ABSENT: None IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Seal of the City of Costa Mesa this 3' day of October, 2000. 7� T. Deputy City qlrk and ex -officio Clerk of the City Council of the City of Costa Mesa ICMA RETIREMENT CORPORATION GOVERNMENTAL MONEY PURCHASE,PLAN & TRUST ADOPTION AGREEMENT Account Numter 10 - The Employer hereby establishes a Nlonev Purchase Plan and Trust to be kno\vn as (the *'["Ian**) in the Form of the [CMA Retirement Corporation Governmental Nloney Purchase flan and Trust. The Plan shall be known as: Costa Mesa Executive Management Employees _ This Plan is an amendment and restatement of an existing defined contribution money purchase plan. 0 Yes 11 No If yes, please specify the name of the defined contribution money purchase plan which this Plan hereby amends and restates: I. Employer Name: City of Costa Mesa II. 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: III. Plan Year swill meals: ❑ The twelve (1 1) consecutive month period which coincides with the I11111ta- tion vear. (See Section 5.04(i) of the Plan.) The twelve (tD consecutive month period conllllencink), On July 1 and each anniversary thereafter. [so - IV. Normal Retirement Age (not to exceed age 65) shall be age 50 V ELIGIBILITY REQUIP ENIENTS: 1. The follo«-ing group(s) of Employees are eligible to participate in the Plan: N Adoption Agreement = 30/20,10 All Employees All Full -Time Employees Salaried Employees Non-union Employees Management Employees Public Safety Employees General Employees XX Other (specify below): See Attached Listing of Employee Groups Exhibit Resolution No. 00-74 Page 1 of 13 R1 The group specified niust correspond to a group of the same designation that is defined in the statutes. ordinances, rules, regulations. personnel manuals or other material in effect in the state or locality of the Employer. ?. The Employer hereby waives or reduces the requirement of a twelve (1 2) month Period of Service for participation. The required Period of Service shall be N/A \yrrte N/A if an Employee is eligible to participate upon employment). [3 441 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 aye requirement is N/A (not to exceed age ? 1). Write N/A if no mini -3411 mum age is declared. VI. CONTRIBUTION PROVISIONS The Employer shall contribute as follows (choose one): ❑ Fixed Employer Contributions With Or Without Mandatory Participant Contributions. The Employer shall contribute qn behalf of each Participant • 5 % of earnings or S for the Plan Year (subject to the limitations of Article V of the Plan). Each Participant is required to contribute *See Attached '% of earnings or S for the Plan Year as a condition of participation in the Plan. (Write "U" if no contribution is required.) If Participant Contributions are required under this option. a Participant shall riot have the right to discontinue or vary the rate of such contribu- tions atter becoming a Plan Participant. The Employer hereby elects to "pick up" the Mandatory/Required Participant Contribution. a Yes ❑ No (62 1/ The pick-up provision specifies that the contribution is treated, for federal income tax purposes, as though it s made by the employer. The pick-up provision allows the employee to defer taxes on the employee mandatory contribution. The actual result is the same as if the contribu- tion were a reduction in that employee's salary by the amount of the contribution. Picked up contributions are NOT exempt from Social Security- rat [Note to Employer: A determination letter issued to an adopting Em- ployer is not a ruling by the Internal Revenue Service that Participant 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. Exhibit Resolution No. 00-74 Page 2 of 13 [Picked up contributions are excludable trona the Participants gross income under section 414(h)(2) of the Internal Revenue Code of 1980 only if they meet the requirements of IZey. Rul. X31-35, 1981-1 C.B. '15 - Those requirements are (1) that the Employer must specify that the contributions, although designated as employee contributions, are been` paid by the Employer in lieu of contributions by the employee: and (21 the employee must not have the option of receiving the contributed amounts directly instead of having them paid by the Employer to the plan.) 0 Fixed Employer Match of Participant Contributions. The Employer shall contribute on behalf of each Participant "' of Earnings for the Plan Year (subject to the limitations ofArticleV of the Plan) for each Plan Year that such Participant has contributed of Earnings or S Under this option. there is a single. fixed rate of Employer contributions, but a Participant may decline to make the required Participant contributions in any Plan Year. in which case no Employer contribution will be made on the Participant's behalf in that Plan Year. ❑ Variable Employer Match Of Participant 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 or S ); 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 contributions exceeding in the aggregate °i, of Earnings or s ). Employer Contributions on behalf of a Participant for a Plan Year shall not exceed S or % of Earnings, whichever is more or less. 2 Each Participant may make a voluntary (unmatched), after-tax contribution. subject to the limitations of Section 4.05 and Article V of the Plan. P Adoption Agreement 4: 3U/'-01111 U Yes G No Exhibit Resolution No. 00-74 Page 3 of 13 6 3. Employer contributions and Participant contributions shall be contributed to the Trust in accordance with the following payment schedule: (please circle one choice) Jo I !l O Bi -Weekly IWeekly ? Semi -Weekly 3 Bi-!V'lonthly 4 Monthly 3 Semi-:Vionthly 6 Bi -Quarterly 7 Quarterly 8 Semi-Quarterk- 9 Bi -Annually IO Annually II Semi -Annually. VII. EARNINGS * Earnings, as defined under Section 2.09 of the Plan. shall include: (a) Overtime ❑ Yes ❑ No (b) Bonuses ❑ Yes ❑ No * Earnings shall include base gross salary only. VIII. LIMITATION ON ALLOCATIONS If the Employer maintains or ever maintained another qualified plan in vyhich any Participant in this Plan is (or was) a participant or could possibly become a participant. the Employer hereby agrees to limit contributions to all such plans as provided herein, if necessarx- in order to avoid excess contributions (as described in Sections 3.02 and 3.03 of the Plan). 1. If the Participant is covered under another qualified defined contribution plan main- tained by the Employer, the provisions of Section 3.02(a) through (t) of the Plan will apply unless another method has been indicated bolo«-. 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 manner that precludes Em- ployer discretion.) 2. If the Participant is or has ever been a participant in a defined benefit plan maintained by the Employer, and if the limitation in Section 3.03 of the Plan would be exceeded. then the Participants Projected Annual Benefit under the defined benefit plan shall be reduced in accordance with the terms thereof to the extent necessary to satisfv such limitation. 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 5.02 and 3.02. The methods of avoiding the limita- tion described in this paragraph will not apply if the Employer indicates another method below. Exhibit Resolution No. 00-74 Page 4 of 13 X XI C! Other Method. (Note to Emplover: Provide below language which will satisfy the 1.0 limitation of section 413(e) of the Code. Such language must preclude Employer discretion. See section 1.-413-1 of the regulations for guidance.) 3. The limitation wear is the following 1? -consecutive month period: July 1 through (and including) June 30 VESTING PROVISIONS The Employer hereby specifies the following vesting schedule, subject to (1) the minimum vesting requirements as noted and (2) the concurrence of the Plan Administrator. Years of Service Completed Zero One Two Three Four Five six Seven Eight Nine Ten Percent Vesting Employer contributions vest immediately Loans are permitted under the Plan, as provided in Article XIII: $1 Yes ❑ No The Employer hereby attests that it is a unit of state or local government or an agency or instrumentality of one or more units of state or local government. XII. The Plan Administrator hereby agrees to inform the Employer of any amendments to the Plan made pursuant to Section 14.05 of the Plan or of the discontinuance or abandonment of the Plan. XIII. The Employer hereby appoints the ICIVIA retirement Corporation as the Plan Administra- tor pursuant to the terms and conditions of the ICN/IA RETIREMENT COrPOrA- TION GOVERNMENTAL MONEY PURCHASE PLAN &TRUST. The Employer hereby agrees to the provisions of the Plan and Trust. tv Ndoprion Agreement 4,30/3000 Exhibit Resolution No. 00-74 Page 5 of 13 XIV The Employer hereby acknowledges it understands that tdilure to properly till out this Adoption Agreement may result in disqualification of the Plan. XV An adopting Employer may not rely on a determination letter issued by the National or District Office of the Internal Revenue Service as evidence that the Plan is qualified under Section 40l of the Inter- nal Revenue Code. In order to obtain reliance with respect to plan qualification. the Employer must apple to the appropriate key district office for a determination letter. In Witness Whereof, the Employer hereby causes this Agreement to be executed on this 3rd day of October ?OC 0 EMPLOYER By: Marc R. Puckett Title: Director of Finance Attest ACCEPTED: ICMA RETIREILENT CORPORATION � v /� Title: Corporate Secretary Attest: Exhibit Resolution No. 00-74 Page 6 of 13 ICMA 401(a) Money Purchase Plan Plan Membership/ Contribution Rates Full-time Employee Group Contribution Rate City Manager 3% _ City Attorney 12% At -Will Department Directors 5% Classified Department Directors 2% Police Command Officers 2% Fire Command Officers 1% Non -Public Safety Division Managers 2% Exhibit Resolution No. 00-74 Page 7 of 13 to DECLARATION OF TRUST OF THE ICMA RETIREMENT TRUST Exhibit Resolution No. 00-74 Page 8 of 13 DECLARATION OF TRUST OF ICMA RETIREMENT TRUST ARTICLE I. NAME AND DEFINITIONS (j) Investment Adviser.The I nvestment Adviser that enters into a contract with the Retirement Trust Section 1.1 Name:Tlie name of the trust created to provide advice with respect to investment of hereby is the ICMA Retirement Trust. the Trust Propern•. Section 1.2 Definitions: Wherever they are used herein. (k) Portfolios.The separate commingled pools of in the following terms shall have the following respective vestment established by the Investment Adviser to meanings: the Retirement Trust. under the supervision of the Trustees, for the purpose of providing invest - (a) By-laws.The by-la\ys referred to in Section 4.1 ments for the Trust Property. hereof, as amended from time to time: (l) Public Employee Trustees. Those Trustees (b) Deferred Compensation Plan.A deferred elected by the Public Employers who, in actor compensation plan established and maintained dance with the provision of Section 3.1 (a) hereof• by a Public Employer for the purpose of are fiull-time employees of Public Employers. providing retirement income and other deferred benefits to its employees in accordance with the (ni) Public Employer Trustees. Public Employers provision of section 437 of the Internal who serve as trustees of the Qualified Plain or Revenue Code. Deferred Compensation Plans. (c) Employees.Those employees who participate (n) Public Employer.A unit of state or local in Qualified Plans and/or Deferred Compensa- government, or anv agency or instrumentality tion Plans. thereof, that has adopted a Deferred Cornpeusa- tion Plan or a Qualified Plan and has executed (d) Employer Trust. A trust created pursuant to an this Declaration of Trust. agreement between RC and a Public Employer, or an agreement between RC and a Public (o) Qualified Plan. A plan that is sponsored by a Employer for administrative services that is not a Public Employer for the purpose of providing trust, in either case for the purpose of investing retirement income to its employees and that and administering the funds set aside by such satisfies the qualification requirements of Section Employer in connection with its Deferred 401 of the Internal Revenue Code. Compensation agreements with its employees or in connection with its Qualified Plan. (p) Public Employer Trust. A trust that is established by a Public Employer in connection (e) Investment Contract.A non-negotiable with its Qualified Plan and that satisfies the contract entered into by the Retirement Trust requirements of Section 501 of the Internal with a financial institution that provides for a f Revenue Code• or a trust established by -a fixed rate of return on investment. Public Employer in connection with its De- ferred Compensation Plan and that satisfies the (I) ICMA. The International City/County requirements of Section 437(b) of the Internal Management Association. Revenue Code. (g) ICMA Trustees. Those Trustees elected by the Public Employers in accordance with the provisions of Section 3.1 (a) hereof, who are also members or former members of the Executive Board of ICMA. (h) 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 RC. (i) Internal Revenue Code.The Internal Rev- enue Code of 1986, as amended. MIT n4/3O/'nn() (q) RC.The International City Management Association Retirement Corporation. (r) Retirement Trust. The Trust created by this Declaration ofTrust. (s) Trust Property. The 3111otunts held in the Retirement Trust as provided in Section 2.3. The Trust Property shall include any income resulting from the investment to the arnounts so held. (t) Trustees. The Public Employee Trustees, ICMA Trustees and RC Trustees elected by the Public Employers to serve as members of the Board of Trustees of the Retirement Trust. Exhibit Resolution No. 00-74 Page 9 of 13 It 12 ARTICLE II. CREATION AND PURPOSE OF THE TRUST, OWNERSHIP OF TRUST PROPERTY Section 2.1 Creation. (a) The Retirement Trust was created by the execu- tion of this Declaration ofTrust by the initial Trustees and Public Employers and is established with respect to each participating Public Employer by adoption of this Declaration of Trust. (b) The Retirement Trust is hereby expressly made a part of the appropriate Qualified Plan or Deferred Compensation Plan of each Public Employer that executes or has executed this Declaration ofTrust. Section 2.2 Purpose and Participation: (a) The purpose of the Retirement Trust is to pro- vide 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 investment Contracts, and in other investments recommended by the investment Adviser under the supervision of the Board ofTrustees. No part of the Trust Property will be invested in securities issued by Public Employers. (b) Participation in the Retirement Trust is limited to M pension and profit-sharing trusts which are maintained by Public Employers and that are ex- empt under section 501(a) of the Internal Rev- enue Code because the Qualified Plans related thereto qualify under section 401(a) of the inter- nal Revenue Code and (ii) deferred compensa- tion plans maintained by Public Employers under Section 457 of the Internal Revenue Code (and trusts maintained by such Public Employers in con- nection with such 457 plans). Section 2.3 Ownership of Trust Property: (a) The Trustees shall have legal title to the Trust Prop- ertyThe Trust Property shall be held as follows: (i) for the Public Employer Trustees for the ex- clusive benefit of the Employees; or (ii) in the case of Deferred Compensation Plan maintained by a Public Employer that has not established a Public Employer Trust for the plan, for the Public Employer as beneficial owner of the plan's assets. (b) The portion of the corpus and income of the Re- tirenientTrust that equitably belongs to any Pub- lic Employer Trust may not be used for or di- verted to any purpose other than for the exclu- sive benefit of the Employees (or their beneficia- MPP 03/31/2000 ries) who are entitled to benefits under such Pub- lic Eniployer Trust. (c) No emplover's- Public EniployerTrust may assign any part of its equity or interest in the Retirement Trust, and any purported assigrtrrrent Of such equity, or interest shall be void. ARTICLE III. TRUSTEES Section 3.1 Number and Qualification ofTrustees: (a) The Board ofTrustees 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 re- maining four Trustees shall consist of two per- sons who, at the time of election to the Board of Trustees, are members or former members of the Executive Board of ICMA, and two persons who, at the time of election, are members or former members of the Board of Directors of RC. One of the ICMA Trustees and one of the RC Trustees shall, at the time of election, be full-time employees of Public Employers. (b) No person may serve aS a Trustee for more than two terms in any ten-year period. Section 3.2 Election and Term: (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 voting 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 each to serve for a terns of three years and until his or her successor is elected and qualified. Section 3.3 Nominations:TheTrustees 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 Trustee 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 Exhibit Resolution No. 00-74 Page 10 of 13 resignation shall be etlectis•e upon such deliver•. or at a later date according to theternrs 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 siuy days of the date on which he or she ceases to be.a full -tine 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 his or her death, resignation, removal, adjudicated 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 person appointed must be the salve type of Trustee (i.e., Public Employee Trustee, 1CMA Trustee or 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 shall occur, until such vacancy is tilled as provided in this Section 3.3. 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 a 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 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 the trustee or administrator under any Employer Trust; (b) enter into a contract with an Investment Adviser providing, among other things, for the establish - ,1111104/30/2000 stent and operation of the Porttblios. selection of the Investment Contracts in syhich the Trust Property may be invested, selection of the other investments tilt the Trust Property and they paynient of reasonable tees 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 Investment Contracts and in an other investment recommended by the Invest- ment Adviser, but not including securities issued by Public Employers, provided that if a Public Employer has directed that its nionies be invested in one or more specified Portfolios or in all 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: (t) accept and retain for such time as they nlav deem advisable any securities or other property received 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 held 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 am• 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 transfer and conveyance and anv and all other instruments that may be necessary or appropriate to carry out the powers herein granted; (i) vote upon any stock, bonds, or other securities; give general or special proxies or powers of attorney withor 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 reorganiza- tions 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, Exhibit Resolution No. 00-74 Page 11 of 13 13 1.4 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 suchexpenses 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 that portion of the Trust Prop- erty to which such expenses are properly allocable; (n) pav 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 appropriateaccounts; (o) adopt, amend and repeal the By-laws, provided that such By-laws are at all times consistent with the terms of this Declaration of Trust; (p) employ persons to make available interests in the Retirement Trust to employers eligible to maintain a Deferred Compensation Plan under Section 457 or a Qualified Plan under Section 401 of the Internal Revenue Code; (q) issue the Annual Report of the Retirement Trust, and the disclosure documents and other literature used by the Retirement Trust; (r) in addition to conducting the investment program authorized in Section 4.1 (d), make loans, including the purchase of debt obliga- tions, provided that all such loans shall bear interest at the current market rate; (s) contract tor. and delegate :uiy 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 tiduciary 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 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 ofTrust Property: Distri- butions of the Trust property shall be made to, or on behalf of, the Public Employer or Public Employer Trustee, in accordance with the terns 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 trustees or administrators of any Employer Trust without ascertaining whether such payments are in compli- ance with the provisions of the applicable Deferred Compensation or Qualified Plan or Employer Trust. Section 4.3 Execution of Instruments:TheTrustees may unanimously designate any one or more of the Trustees to execute any instrument or document 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 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 non -trusted Exhibit Resolution No. 00-74 Page 12 of 13 Deterred Compensation flans and for the Public Employer Trusters. and .hall pertin•nt 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 t;urniliar with such matters would use in the conduct of an enterprise ofa like character and with like aims. Section 5.2 Liability: The Trustees :hall 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 otficers, ennploy- ees or agents or by the Investment Adviser or any sub -investment adviser. accountant, ap- praiser or other expert or consultant 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 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 Employ- ers and Public Employer Trustees a written report of the transactions of the Retirement Trust, including financial statements which shall be certified by independent public accountants chosen by the Trustees. ARTICLE VIII. DURATION OR AMENDMENT OF RETIREMENT TRUST Section 7.1 Withdrawal: A Public Employer or Public Employer Trustee may, at any time, withdraw from this lketirementTrust 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 Property allocable to the Public Employer is derived from compensation deferred by employees of such Public Employer pursuant 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 or administrator ender an 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. NIPP 04 :u/?nnn Upon termination, all of the Trust Property shall be paid out to the Public Employers, Public Employer Trustees or the trustees or administrators of the EniploverTrusts. as appropriate. Section 7.3 Arnendment:The Retirement Trust May be amended by the vote of a majorin' of the Public Employers, each casting one vote. Section 7.4 Procedure: A resolution to terminate or aniend the Retirement Trust or to remove aTrustee shall be submitted to a vote of the Public Employers it. (i) a majority of the Trustees so direct, or; (ii) a petition requesting a vote signed by not less than 25 percent 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 fTrust 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 r%vo or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. 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