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HomeMy WebLinkAbout2001-267AN ORDINANCE ESTABLISHING A 401 MONEY PURCHASE PLAN WITH ICMA RETIREMENT CORPORATION GOVERNMENTAL MONEY PURCHASE PLAN, AUTHORIZING AN ADOPTION AGREEMENT WITH ICMA, EXECUTING A DECLARATION OF TRUST FOR THE ICMA RETIREMENT TRUST, NAMING HUMAN RESOURCES DIRECTOR AS COORDINATOR FOR THE PLAN, AND ESTABLISHING AN EFFECTIVE DATE (ACCOUNT NUMBER 107463) WHEREAS, the City of Denton (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 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, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION 1 That the City of Denton, Texas (Employer) hereby establishes or has established a money purchase retirement plant (the "Plan") in the form of the ICMA Retirement Corporation Governmental Money Purchase Plan & Trust, pursuant to the specific provisions of the Adoption Agreement and Administrative Services Agreement (executed copy attached hereto as Exhibit A and B) The Plan shall be maintained for the exclusive benefit of eligible employees and their beneficiaries The City Manager is herby authorized to execute the Adoption Agreement and Administrative Services Agreement SECTION 2 That the Employer hereby executes the Declaration of Trust of the ICMA Retirement Trust, attached hereto as Exhibit C, 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 SECTION 3 That the Human Resource Director 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 S�ur DooumaY rdinumauWNCMA 401 money µmhos plan doe SECTION 4 This ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the JY4-day of 2001 2a� )6eC4�- EULINE BROCK, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY BY 9909 APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY BY 5 Our 1.m It-E "EXHIBIT A" ADMINISTRATIVE SERVICES AGREEMENT Type 401 Account Number 7463 Plan # 7463 ADMINISTRATIVE SERVICES AGREEMENT This Agreement, made as of the day of , 2001 (herein referred to as the "Inception Date"), between The International City Management Association Retirement Corporation ("RC"), a nonprofit corporation organized and existing under the laws of the State of Delaware, and the City of Denton ("Employer") a City organized and existing under the laws of the State of Texas with an office at 601 East Hickory, Suite A, Denton, Texas 76205 RECITALS Employer acts as a public plan sponsor for a retirement plan ("Plan") with responsibility to obtain investment alternatives and services for employees participating in that Plan, The ICMA Retirement Trust (the "Trust") is a common law trust governed by an elected Board of Trustees for the commingled investment of retirement funds held by state and local governmental units for their employees, RC acts as investment adviser to the Trust, RC has designed, and the Trust offers, a series of separate funds (the "Funds") for the investment of plan assets as referenced in the Trust's principal disclosure document, "Making Sound Investment Decisions A Retirement Investment Guide" The Funds are available only to public employers and only through the Trust and RC In addition to serving as investment adviser to the Trust, RC provides a complete offering of services to public employers for the operation of employee retirement plans including, but not limited to, communications concerning investment alternatives, account maintenance, account record -keeping, investment and tax reporting, form processing, benefit disbursement and asset management AGREEMENTS 1 Appointment of RC Employer hereby designates RC as Administrator of the Plan to perform all non - discretionary functions necessary for the administration of the Plan with respect to assets in the Plan deposited with the Trust The functions to be performed by RC include (a) allocation in accordance with participant direction of individual accounts to investment Funds offered by the Trust, (b) maintenance of individual accounts for participants reflecting amounts deferred, income, gam, or loss credited, and amounts disbursed as benefits, (c) provision of periodic reports to the Employer and participants of the status of Plan investments and individual accounts, -2- Plan # 7463 (d) communication to participants of information regarding their rights and elections under the Plan, and (a) disbursement of benefits as agent for the Employer in accordance with terms of the Plan 2 Adoption of Trust Employer has adopted the Declaration of Trust of the ICMA Retirement Trust and agrees to the commingled investment of assets of the Plan within the Trust Employer agrees that operation of the Plan and investment, management and disbursement of amounts deposited in the Trust shall be subject to the Declaration of Trust, as it may be amended from time to time and shall also be subject to terms and conditions set forth in disclosure documents (such as the Retirement Investment Guide or Employer Bulletins) as those terms and conditions may be adjusted from time to time It is understood that the term "Employer Trust" as it is used in the Declaration of Trust shall mean this Administrative Services Agreement 3 Employer Duty to Furnish Information Employer agrees to furnish to RC on a timely basis such information as is necessary for RC to carry out its responsibilities as Administrator of the Plan, including information needed to allocate individual participant accounts to Funds in the Trust, and information as to the employment status of participants, and participant ages, addresses and other identifying information (including tax identification numbers) RC shall be entitled to rely upon the accuracy of any information that is furnished to it by a responsible official of the Employer or any information relating to an individual participant or beneficiary that is furnished by such participant or beneficiary, and RC shall not be responsible for any error arising from its reliance on such information RC will provide account information in reports, statements or accountings 4 Certain Representations Warranties, and Covenants RC represents and warrants to Employer that (a) RC is a non-profit corporation with full power and authority to enter into this Agreement and to perform its obligations under this Agreement The ability of RC to serve as investment adviser to the Trust is dependent upon the continued willingness of the Trust for RC to serve in that capacity (b) RC is an investment adviser registered as such with the Securities and Exchange Commission under the Investment Advisers Act of 1940, as amended ICMA-RC Services, Inc (a wholly owned subsidiary of RC) is registered as a broker -dealer with the Securities and Exchange Commission (SEC) and is a member in good standing of the National Association of Securities Dealers, Inc -3- Plan # 7463 RC covenants with employer that (c) RC shall maintain and administer the Plan in compliance with the requirements for plans which satisfy the qualification requirements of Section 401 of the Internal Revenue Code, provided, however, RC shall not be responsible for the qualified status of the Plan in the event that the Employer directs RC to administer the Plan or disburse assets in a manner inconsistent with the requirements of Section 401 or otherwise causes the Plan not to be carried out in accordance with its terms, provided, further, that if the plan document used by the Employer contains terms that differ from the terms of RC's standardized plan document, RC shall not be responsible for the qualified status of the Plan to the extent affected by the differing terms in the Employer's plan document Employer represents and warrants to RC that (d) Employer is organized in the form and manner recited in the opening paragraph of this Agreement with full power and authority to enter into and perform its obligations under this Agreement and to act for the Plan and participants in the manner contemplated in this Agreement Execution, delivery, and performance of this Agreement will not conflict with any law, rule, regulation or contract by which the Employer is bound or to which it is a party 5 Participation in Certain Proceedings The Employer hereby authorizes RC to act as agent, to appear on its behalf, and to join the Employer as a necessary party in all legal proceedings involving the garnishment of benefits or the transfer of benefits pursuant to the divorce or separation of participants in the Employer Plan Unless Employer notifies RC otherwise, Employer consents to the disbursement by RC of benefits that have been garnished or transferred to a former spouse, spouse or child pursuant to a domestic relations order Compensation and Payment (a) Plan Administration Fee The amount to be paid for plan administration services under this Agreement shall be 0 55% per annum of the amount of Plan assets invested in the Trust Such fee shall be computed based on average daily net Plan assets in the Trust (b) Account Maintenance Fee There shall be an annual account maintenance fee of $0 00 The account maintenance fee is payable in full on January 1st of each year on each account in existence on that date For accounts established AFTER January 1st, the fee is payable on the first day of the calendar quarter following establishment and is prorated by reference to the number of calendar quarters remaining on the day of payment Plan # 7463 (c) Compensation for Management Services to the Trust and Advisory and other Services to the Vantagepomt Funds Employer acknowledges that in addition to amounts payable under this Agreement, RC receives fees from the Trust for investment management services furnished to the Trust Employer further acknowledges that certain wholly -owned subsidiaries of RC receive compensation for advisory and other services furnished to the Vantagepoint Funds, which serve as the underlying portfolios of a number of Funds offered through the Trust The fees referred to in this subsection are disclosed in the Retirement Investment Guide These fees are not assessed against assets invested in the Trust's Mutual Fund Series (d) Mutual Fund Services Fee There is an annual charge of 0 40% assessed against average daily net Plan assets invested in the Trust's Mutual Fund Series (a) Model Portfolio Fund Fee There is an annual charge of 0 10% assessed against daily average net Plan assets invested in the Trust's Model Portfolio Funds (f) Payment Procedures All payments to RC pursuant to this Section 6 shall be paid out of the Plan assets held by the Trust and shall be paid by the Trust The amount of Plan assets held in the Trust shall be adjusted by the Trust as required to reflect such payments 7 Custody Employer understands that amounts invested in the Trust are to be remitted directly to the Trust in accordance with instructions provided to Employer by RC and are not to be remitted to RC In the event that any check or wire transfer is incorrectly labeled or transferred to RC, RC will return it to Employer with proper instructions leis Plan # 7463 8 Responsibility RC shall not be responsible for any acts or omissions of any person other than RC in connection with the administration or operation of the Plan 9 Term This Agreement may be terminated without penalty by either party on sixty days advance notice in writing to the other 10 Amendments and Adiustments (a) This Agreement may not be amended except by written instrument signed by the parties (b) The parties agree that compensation for services under this Agreement and administrative and operational arrangements may be adjusted as follows RC may propose an adjustment by written notice to the Employer given at least 60 days before the effective date of the adjustment and the notice may appear in disclosure documents such as Employer Bulletins and the Retirement Investment Guide Such adjustment shall become effective unless, within the 60 day period before the effective date the Employer notifies RC in writing that it does not accept such adjustment, in which event the parties will negotiate with respect to the adjustment (c) No failure to exercise and no delay in exercising any right, remedy, power or privilege hereunder shall operate as a waiver of such right, remedy, power or privilege 11 Notices All notices required to be delivered under Section 10 of this Agreement shall be delivered personally or by registered or certified mad, postage prepaid, return receipt requested, to (i) Legal Department, ICMA Retirement Corporation, 777 North Capitol Street, N E , Suite 600, Washington, D C, 20002-4240, (u) Employer at the office set forth in the first paragraph hereof, or to any other address designated by the party to receive the same by written notice similarly given 12 Complete Agreement This Agreement shall constitute the sole agreement between RC and Employer relating to the object of this Agreement and correctly sets forth the complete rights, duties and obligations of each party to the other as of its date Any prior agreements, promises, negotiations or representations, verbal or otherwise, not expressly set forth in this Plan # 7463 Agreement are of no force and effect 13 Governm4 Law This agreement shall be governed by and construed in accordance with the laws of the State of Texas, applicable to contracts made in that jurisdiction without reference to its conflicts of laws provisions In Witness Whereof, the parties hereto have executed this Agreement as of the Inception Date first above written CITY OF DENTON by F-/3- b Signature/Date C411r„e !J {rOc it' /&9�r, G' e+ tleN °d U Name and Tit�Please Print) INTERNATIONAL CITY MANAGEMENT ASSOCIATION RETIREMENT CORPORATION b��� Y Paul Gallagher Corporate Secretary -7- ICMA RETIREMENT CORPORATION "EXHIBIT B" GOVERNMENTAL MONEY PURCHASE PLAN & TRUST ADOPTION AGREEMENT Account Number 10- 7463 The Employer hereby establishes a Money Purchase Plan and Trust to be known as (the "Plan") in the form of the ICMA Retirement Corporation Governmental Money Purchase Plan and Trust The Plan shall be known as [906] This Plan is an amendment and restatement of an existing defined contribution money purchase plan ❑ Yes 0 No If yes, please specify the name of the defined contribution money purchase plan which this Plan hereby amends and restates Employer Name City of Denton [9021 II The Effective Date of the Plan shall be the first day of the P1anYear during which the Employer adopts the Plan, unless an alternate Effective Date is hereby specified III P1anYear will mean Q1 The twelve (12) consecutive month period which coincides with the limita- tion year (See Section 5 04(1) of the Plan ) [8031 The twelve (12) consecutive month period commencing on and each anniversary thereafter [8031 IV Normal Retirement Age (not to exceed age 65) shall be age 60 [288] V ELIGIBILITY REQUIREMENTS The following group(s) 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 Other (specify below) City Manager MPP Adoption Agreement 4/30/2000 The group specified must 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 (12) month Period of Service for participation The required Period of Service shall be N/A write N/A if an Employee is eligible to participate upon employment) 1344] If this waiver or reduction is elected, it shall apply to all Employees within the Covered Employment Classification A minimum age requirement is hereby specified for eligibility to participate The minimum age requirement is N/A (not to exceed age 21) Write N/A if no mini- [347] 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 on behalf of each Participant 3 % of earnings or $ for the Plan Year (subject to the limitations ofArticle V of the Plan) Each Participant is required to contribute _Q_ % of earnings or $ 0 for the Plan Year as a condition of participation in the Plan (Write "0" if no contribution is required ) If Participant Contributions 'ire required under this option, a Participant shall not have the right to discontinue or vary the rate of such contribu- tions after becoming a Plin Participant The Employer hereby elects to "pick up" the Mandatory/Required Participant Contribution ,j. Yes V No [6211 The pick-up provision specifies that the contribution is treated, for federal income tax purposes, as though it is 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 tax [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 MPP Adoption Agreement 4/30/2000 [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 Rul 81-35, 1981-1 C B 255 Those requirements are (1) that the Employer must specify that the contributions, 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 Employer Match of Participant Contributions The Employer shall contribute on behalf of each Participant % of Earnings for the PlanYear (subject to the limitations ofArticle V of the Plan) for each PlanYear that such Participant has contributed % of Earnings or $ 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 PlanYear, in which case no Employer contribution will be made on the Participant's behalf in that PlanYear ❑ Variable Employer Match Of Participant Contributions The Employer shall contribute on behalf of each P irticipant an amount determined as follows (subject to the limitations ofArticleV of the Plan) of the contributions made by the Participant for the Plan Year (not including Participant contributions exceeding % of Earnings or $ ), PLUS % of the contributions made by the Participant for the PlanYear in excess of those included in the above paragraph (but not including Participant contributions exceeding in the aggregate % of Earnings or $ —) Employer Contributions on behalf of a Participant for a PlanYear shall not exceed $ or % of Earnings, whichever is more or less Each Participant may make a voluntary (unmatched), after-tax contribution, subject to the limitations of Section 4 05 and Article V of the Plan a Yes ❑ No MPP Adoption Agreement 4/30/2000 VII VIII Employer contributions and Participant contributions shall be contributed to the Trust in accordance with the following payment schedule (please circle one choice) 0 Bi-Weekly 1 Weekly 2 Semi -Weekly 3 Bt-Monthly 4 Monthly 5 Semi -Monthly 6 Bi-Quarterly 7 Quarterly 8 Serni-Quarterly 9 Bi-Annually 10 Annually 11 Semi -Annually EARNINGS Earnings, as defined under Section 2 09 of the Plan, shall include (a) Overtime ❑ Yes �@ No (b) Bonuses ❑ Yes ❑ No LIMITATION ON ALLOCATIONS If the Employer maintains or ever maintained another qualified plan in which 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 necessary in order to avoid excess contributions (as described in Sections 5 02 and 5 03 of the Plan) If the Participant is covered under another qualified defined contribution plan main- tained by the Employer, the provisions of Section 5 02(a) through (0 of the Plan wil apply unless another method has been indicated below ❑ 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 ) 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 5 03 of the Plan would be exceeded, 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 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 5 02 The methods of avoiding the limita- tion described in this paragraph will not apply if the Employer indicates another method below [6111 MPP Adoption Agreement 4� 30/2000 ❑ Other Method (Note to Employer Provide below language which will satisfy the 1 0 limitation 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 IX 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 Percent Completed Vesting Zero 0 % One % Two % Three % Four % Five % Six % Seven % Eight % Nine % Ten % X Loans are permitted under the Plan, as provided in Article XIII Q Yes ❑ No XI 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 ICMA Retirement Corporation as the Plan Administra- tor pursuant to the terms and conditions of the ICMA RETIREMENT CORPORA- TION GOVERNMENTAL MONEY PURCHASE PLAN &TRUST The Employer hereby agrees to the provisions of the Plan and Trust [751 ] MPP Adoption Agreement 4/30/2000 XIV The Employer hereby acknowledges it understands that failure to properly fill 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 401 0£ the Inter- nal Revenue Code In order to obtain reliance with respect to plan qualification, the Employer must apply to the appropriate key district office for a determination letter I Witness Whereof, the Employer hereby causes this Agreement to be executed on this / day of _, 200 EMPLOYER By Z Title Attest ACCEPTED ICMA RETIREMENT CORPORATION Title Corporate Secretary P c.'21,� Attest MPP Adoption Agreement 4/30/2000 ICMA RETIREMENT CORPORATION "EXHIBIT C° DECLARATION OF TRUST OF THE ICMA RETIREMENT TRUST DECLARATION OF TRUST OF ICMA RETIREMENT TRUST ARTICLE I NAME AND DEFINITIONS Investment Adviser The InvestmentAdvtser thu tutees Into I contuct with the RetnementTtust Section 1 1 Name The name of the rust cie ited to provide id1 icr, with respect to investment of lieteby is the ICMA RetitenientTiust the Tiust Property Section 1 2 Definitions Wherever they ate used herein the following terms shill have the following tespective me imngs (I) By-laws The by-laws refeued to in Section 4 1 hereof as imended ftonr 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 (c) Employees Those employees who participate in Qualified Plans and/or Deferred Compensa- tion Plans (d) Employer Trust A trust created pursuant to an agreement between RC and a Public Employer, or an agreement between RC and a Public Employer for administrative services that is not a trust, in either case 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) Investment Contract A non-negotiable contract entered into by the Retirement Trust with a financial Institution that provides for a f fixed rate of return on investment (f) ICMA The International City/County Management Association (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 of 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 of former members of the Board of Directors of RC (I) Internal Revenue Code The Internal Rev- enue Code of 1986, as amended (6) Portfolios The sepliate commingled pools of in vestment established by the InvestmentAdvtser to the Rentenient Trust, under the supervision of the Trustees for the purpose of providing Invest- ments lot the Trust Property (1) Public Employee Trustees Those Trustees elected by the Public Employers who, in u.cot dince with the provision of Section 3 1 (a) hereof ire full-time employees of Public Employees (na) Public Employer Trustees Public Employers who serve as nustees of the Qualified Plans or Deferred Compensation Plans (n) Public Employer A unit of state or local government or any agency or mstiumentaliry thereof that has adopted a Deferred Compensa- tion Plan or a Qualified Plan and has executed this Declaration of Trust (o) Qualified Plan A plan that is sponsored by a Public Employer tot the purpose of providing retirement income to its employees and that satisfies the qualification requirements of Section 401 of the Internal Revenue Code (p) Public Employer Trust A trust that is established by a Public Employee in connection with its Qualified Plan and that satisfies the requirements of Section 501 of the Internal Revenue Code of a trust established by -a Public Employer in connection with its De- ferred Compensation Plan and that satisfies the requirements of Section 457(b) of the Internal Revenue Code (y) RC The Intel national City Management Association Retirement Corporation (e) Retirement Trust The Trust created by this Declaration ofTiust (s) Trust Property The amounts held to the Retirement Ttust as provided in Section 2 3 The Trust Ptoperty shall include any income iesulting hom the investment to the amounts so held (t) Trustees The Public Employee Trustees ICMA Trustees ind RC Tnistees elected by the Public Employers to seeve as members of the Board of Trustees of the RetnementTtust MPP 04/30/2000 ARTICLE II CREATION AND PURPOSE OF THE TRUST, OWNERSHIP OF TRUST PROPERTY Section 2 1 Creation (i) The Retirement Tiust wis created by the execu- tion of this Dechrition ofTrust by the mind Trustees ind Public Employers Ind is established with respect to each participating Public Employet by adoption of this Dechration of Trust (b) The Retirement Trust is hereby expressly made i part of the appiopriite Qualified Plan or Deferred Compensation Plan of each Public Employer that e%ecutes or has executed this Declarition 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 RetirementTrust 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 (it) 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- erty The Trust Property shall be held as follows (i) for the Public EmployerTrustees for the ex- clusive benefit of the Employees, or (n) in the case of a Deferred Compensation Plan maintained by a Public Employer that has not established a Public Employer Trust for the plan for the Public Employei as beneficial owner of the plans assets (b) The portion of the corpus and income of the Re- titementTrustthat equitably belongs to any Pub- lic Employet 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- ties) who mie entitled to benefits under such Pub- lic Employet Trust (c) No employe[ s- Public Employet Trust miy assign my pact of its equity or interest in the RetnementTiust ind tiny putported issignincnc Of such equav or interest shall be void ARTICLE III TRUSTEES Section 3 1 Number and Qualification ofTrustees (m) The Bomtd ofTrustees shall consist of nine Trustees Five of the Mustees shall be full-nnre employees of i Public Employer (the Public Employee Trustees) who are authouzed by such Public Employer to serve asTrustee The ie- maming foul 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 petsons 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 aTrustee 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 ofTrustees, 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 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 Tiustee 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 of subsequent accounting) by an instrument in writing signed by the Truscee and delivered to the other Trustees and such MIT t13/31 /2000 resignation shill be effective upon such delivery of it a later dite according to theternis of the instrument Any of the Trustees miy be removed fat cause, by i vote of a majority of the Public Employers (b) Each Public Employee Tiustee shall resign his of hit positron as Tiustee within snty days of the date on which he or she ceases to be a full-time employee of a Public Employet Section 3 5 Vacancies The teen of office of 1Tiustee shill terminate and a vacancy shall occur in the event of his of her death, resignation removal, idludicated incompetence or othei incapicity to perform the duties of the office of iTiustee In the case of a vacancy, the iemumngTrustees shall appoint such person as they in then discretion shall see fit (subject to the limitations set forth in this Section), to serve foi the unexpired portion of the tetm of the Tiustee who his resigned or otherwise ceased to be a Tiustee The appointment shall be made by a wutten instrument signed by a majority of the Tiustees The person appointed must be the same type ofTrustee (le Public Employee Trustee, ICMA 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 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 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 Tiustees shall have the power to conduct the business of the Trust and to cart y on its operations Such power shall include, but shall not be limited to the power to (a) receive the Must Property fiom the Public Employers Public Employer Tiustees or the trustee of adimnistiator under any Employer Trust (b) enter into a contract with an Investment Adviser providing among other things, for the establish - meat and open ition of the Portfolios selection of the Investment Conti icts in which the Trust Piopetry tiny be invested selection of the other investments for the Trust Ptopeity and the payment of reasonable fees to the Investment Adviser and to my sub -investment idviset retuned by the Investment Advtset, (c) review innu illy the perfouimuice of the Invcsnirent Adviser Ind apptove innuilly the contrict with such Investment Adviser (d) invest and reinvest the TtList Piopetry in the Pottfohos the Investment Contracts and in any other investment reconunended by the Invest- ment Adviser but not including secuimes issued by Public Employers piovided that if Public Eniployei has directed that its monies be invested in one of mote specified Portfolios or in an 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 Tiustees from time to umc may deem to be in the best interest of the RetrrementTrust created hereby without liability foi interest thereon (f) accept and retain for such time as they may 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 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 transfer and conveyance and any and all other instruments that may be necessary or appropriate to carry out the powers herein granted (i) vote upon any stock bonds or other securities give general or special proxies or powers of attorney wither 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 pav any assessments or charges in connection therewith, and generally exercise any of the powers of an owner with respect to stocks, MPP 04/30/2000 bonds, secu sties of othei ptopetty held As put of theTiust Piopetty, O) enter into contracts of airangements for goods of services iequned in connection with the operation of the RetnementMust, including but not limited to contracts with custodrins Ind contracts for the provision of idnunistrative services, (k) borrow of rise money for the purposes of the RetirenientTrust in such amount, And upon such terms Ind conditions, as theTiustees shill deem advisable provided that the aggregate Amount of such bonowmgs shill not exceed 30% of the value of the Trust Property No Pelson lending money to the Trustees shall be bound to see the application of the money lent or to inquire into its validity expediency of propriety or any such borrowing, (1) incur reasonable expenses as requned for the operation of the RetirementTiust and deduct suchexpenses from of the Trust Property, (In) 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) 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 appropriateaccounts, (o) adopt, amend and repeal the By-laws, provided that such By-laws are at all tunes consistent with the terms of this Declaration ofTrust, (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 RetniementTiust (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 late, (s) conuAct tot Ind delegite Any powers glinted heieundet to such officers Agents employees Auditois And ittoineys is the Trustees Lilly select provided thit the Tiustees nnav not delegAte the powers set toith in pit ignaphs (b) (c) vnd (o) of this Section 4 1 Ind niry not delegAte Any poslets it such delegation would violate then hduc.Ivy duties, (t) piovide tot the Indemnification of the Oftrcets ind Trustees of the Rctu enient Tnist Ind puiehise fidauary insurance (u) in untim books ind tecoids, Including Sep a ILL Accounts foi eu.h Public Eniployet Public. Employer Tiustee of Employei Ti ust And such Addinonif sepwte iccounts as Ate tequued undei And consistent with the Deterred Compensation of Qualified Plan of each Public Employel and (v) do all such acts take all such proceedings and exercise all such lights And privileges although not specifically mentioned herein, as the Trustees may deem necessary or appiopnate to administer the Must Property and to tarty out the purposes of the Ret cement Trust Section 4 2 Distribution of Trust 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 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 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 The Trustees may unanimously designate any one of 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 othet contracts, and the action of such designated Trustee or Trustees shill have the same force and effect is 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 herembefoie granted to the Trustees the Trustees shall perform All Acts within their authoiny for the exclusive purpose of providing benefits for the Public Employers in connection with non -rusted MIT 03/31/2000 Detected Compensation Prins vid for the Public Employer Trustees Ind shall perfoun such acts with the L ice skill, prudence and diligence in the citcum- stinces then pievnlutg that a prudent person acting in a like c ipacity and famvinl with such matters would use in the conduct of in enterpuse of a like chiricter and with like urns Section 5 2 Liability The Trustees shall not be liable tol my mistake ofjudgntent of othet action taken in good fvth, lnd for any action tiken of omitted in reliance in good futh upon the books of account of other tecoids of the RettrementTiust, upon the opinion of counsel or upon repoi is made to the Retuenrent Trust by my of its officers employ- ees of igents or by the Investment Adviser of my sub -Investment idviser accountant ap- prvset or other expert of consultant selected with reisonable care by the Trustees, officers of employees of the ReniententTiust TheTiustees shall also not be liable for any loss sustained by the Trust Property by reason of any investment made in good Earth and in accordance with the standard of cire 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 RetirementTiust 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 Tiust Property allocable to the Public Employer is derived from compensation deferred by employees of such Public Employet pursuant to its Deferted Compensation Plan or flonm conttibuteons 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 RetirenientTiust of by the trustee or administrator nndet an Employer Trust Section 7 2 Duration The Retirement Trust shall continue until terminated by the vote of majority of the Public Employers, each casting one vote Upon termmition ill of the Trust Ptopelty shill be p lid out to the Public Employees, Public Employet Trustees or the trustees or adnnnestiatots of the EntployeeTiusts is ippiopuite Section 7 3 Amendment The RetuementTiust in be intended by the vote of a mijouty of the Public Entployels etch casting one vote Section 7 4 Procedure A eesolution to teunmate or intend the Retirement Trust or to temove aTiustee shall be submitted to i vote of the Public Employees if (i) i mijonty of the Trustees so direct, or, (it) a petition tequesting i vote signed by not less thin 25 peecent of the Public Employers is submitted to the Ti ustees ARTICLE VIII MISCELLANEOUS Section 8 1 Governing Law Except as otherwise requited by state of local law, this Declaration of Trust and the Retirement Trust hereby cleated shall be construed and regulated by the laws of the Disti tat of Columbn Section 8 2 Counterparts This Declaration may be executed by the Public Employers and Trustees in two or mole counterparts each of which shall be deemed an original but all of which together shall constitute one and the same instrument MIT 04/30/3000