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Res 84-104RESOLUTION NO. 84-104 A ~OLU~ION f~ THE CITY COUNCIL OF THE CITY OF POg{AY, C_AT.TFORNIA, WHEREAS, the City of Poway maintains a deferred compensation plan for its employees which is administered by the ICMA Retir~aent Corporation; and WHEREAS, other public employers have joined together to establish the Ia~A Retirement Trust for the purpose of representing the interests of the partici- Dating employers with respect to collective investment of funds held under their deferred compensation plan; and WHEREAS, quality of Corporation. said Trust is a salutary development which further advances the administration for plans administered by the IC~A Retirement NOW, THEREFORE, BE IT N~OLVED that the City of Poway hereby executes the ICMA Retire~%ent Trust, attached hereto; and BE IT F~ RESOLVED THAT THE DIRECTOR OF Af~iINISTRATIVE SERVIC~q shall be the coordinator for this program and shall receive necessary reports, notices, etc. frc~ the I(I~A l~tir~ent Corporation as Administrator, and shall cast on behalf of the City of Poway, any required votes under the program. A~ninis- trative duties to carry out the plan may be assigned to the appropriate depart- ment. PASSED, ADOPTED AND APPROVED, by the City Council of the City of Poway, California, at a regular meeting thereof this 16th day of October, 1984. Marjorie K. ~ahlsten, City Clerk DECLARATION OF TRUST of ICMA RETIREMENT TRUST ARTICLE I. Name and Definitions SECTION 1.1. Name. The Name of the Trust created hereby is the ICMA Retirement Trust. SECTION 1.2. Definitions. Wherever they are used herein, the following terms shall have the following respective meanings: (a) By-Laws. The By-Laws referred to in Section 4.1 hereof, as amended from time to time. (b) Deferred Compensation Plan. A deferred compensation plan established and maintained by a Public Employer for the purpose of providing retirement income and other deferred benefits to its employees in accordance with the provisions of section 457 of the Internal Revenue Code of 1954. as amended. (c) Guaranteed Investment Contract. A contract entered into by the Retirement Trust with insurance companies that prowdes for a guaranteed rate of return on investments made pursuant to such Contract. (d} ICMA. The International City Management Association. (e) ICMA/RC Trustees. Those Trustees elected by the Public Employers who, in accordance with the prowslons of Section 3. l(a) hereof, are also members of the Board of Directors of ICMA or RC. (f) investment Adviser. The Investment Adviser that enters into a contract with the Retirement Trust to prowde advice with respect to investment of the Trust Property. (g) 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. th) Portfolios. The Portfolios of investments established by the Investment Adviser to the Retirement Trust, under the superws~on of the Trustees. for the purpose of providing investments for the Trust Property. (i) Pubhc Employee Trustees. Those Trustees elected by the Pubhc Employers who, m accordance w~fh the prows~ons of Section 3.t(a) hereof, are lull-nme employees of Pubhc Employers. (I) Pubhc Employer A umt of slate or local government, orany agency or instrumentality thereof, that has adopted a Deferred Compensation Plan and has executed th~s Declarahon of Trusl (k) RC. The Internahonal Cdy Management Assoc~ahon Rehrement Corporahon (I) Rehrement Trust The Trust created by Ih~s Declarahon el Trust tm) TrusIProperty The amounts holdmtheRehrementf~uston b*.~nall of lhe Pubhc Employers The Trust Property shall include any irlcome f esuItlng from I he investment el 1 he amoullts so held Jrt) TrUStr,~,S The Pubhc Employl:e Trustees 3nd ICMA RC ARTICLE II. Creation and Purpose of the Trust; Ownership of Trust Property SECTION 2.1. Creation. The Retirement Trust is created and established by the execution of this Declaration of Trust by the Trustees and the participating Public Employers. SECTION 2.2. Purpose. The purpose of the Retirement Trust is to provide for the commingled investment of funds held by the Public Employers in connection with their Dele'fred Co. mpensation Plans. The Trust Property shall be invested in the Portfolios. in Guaranteed Investment Contracts and in other investments recommended by the Investment Adviser under the supervision of the Board of Trustees. SECTION 2.3 Ownership of Trust Property. The Trustees shall have legal title to the Trust Property, The Pub]ic Employers shall be the beneficial owners of the Trust Property. ARTICLE III. Trustees SECTION 3.1. Number and Qualification of Trustees, (a) The Board of Trustees shall consist of nine Trustees. Five of the Trustees shall be full-time employees of a Public Employer (the Public Employee Trustees) who are authorized by such Public Employer reserve as Trustee. The remaining four Trustees shall consist of two persons who, at the time of elechon to the Board of Trustees, are members of the Board of D~rectors of ICMA and two persons who, at the rime of election, are members of the Board of Directors of RC (the ICMA/RC Trustees)Oneof the Trustees who is a director of ICMA, and one of the Trustees who is a director of RC, shall, at the hmeof election, be tull-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 Trustees appointed to fill vacancies pursuant lo Sechon 3.5 hereof, the Trustees shall be elected by a vote of a majordy of the Pubhc Employers m accordance w~th the procedures set forth m Ihe By-Laws {b) Al the hrst etechon 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 elecbon, three Trustees shall be elected for a term of three years and unhl h~s or her Successor ~s elected and quahhed SECTION 33 Nominations The TrusTees who are full-brae pmployees el PuPhc Employers snail serve as the Nomlnahng Commlnee for the Pubhc Employee Trustees The Nominating Commdtee shall ChOOSe cand~da[es for Pubhc Employee Truslees in Iccordance wHn the procedures SOl forlh m the By-Laws SECTION 3 4 Res~gnahon ,~nd Removal (v) do all such acts, take all such pruCeedings, and exercise all such rights and privileges, although not specifically mentioned herein, as the Trustees may deem necessary or appropriate to administer the Trust Property and to carry out the purposes of the Retirement Trust. SECTION 4.2. Distribution of Trust Property. Distributions of the Trust Property shall be made to, or on behalf of, the Public Employer, m accordance with the terms of the Deferred Compensation 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 or the Trustees of the Employer Trusts without ascertaining whether such payments are in compliance with the prowsions of the Deferred Compensation Plans or the agreements creating the Employer Trusts. SECTION 4.3. Execution of Instruments. The Trustees may unanimously designate any one or more of the Trustees to execute any instrument or document on behalf of all, including but not limited to the sigmng 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, and shall perform such acts with the care. skill, prudence and diligence in the circumstances 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 Investment Adviser or any sub- investment adviser, accountants, appraisers or other experts or consultants selected with reasonable care by the Trustees. officers or employees of the Retirement Trust. The Trustees shall also not be liable for any loss sustained by the Trust Property by reason of any investment made in good faith and in accordance with the standard of care set forth in Section 5.1. SECTION 5.3. Bon(J. 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 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 VII. Duration or Amendment of Retirement Trust SECTION 7.1. Withdrawal. A Public Employer may, at any time. with- draw from this Retirement Trust by delivering to the Board of Trustees a statement to that effect. The withdrawing Public Employer's beneficial interest in the Retirement Trust shall be paid out to the Public Employer or to the Trustee of the Employer Trust, as appropriate. SECTION 7.2. Duration. The Retirement Trust shall continue until terminated by the vote of a majority of the Public Employers, each casting one vote. Upon termination, all of the Trust Property shall be paid out to the Public Em ployers 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: (a) a majority of the Trustees so direct, or (b) a petition requesting a vote, signed by not less than 25% of the Public Employers. ~s submitted to the Trustees. ARTICLE VIII. Miscellaneous SECTION 8.1. Governing Law. Except as otherwise required by state or local law. this Declaration of Trust and the Retirement Trust hereby created shall be construed and regulated by the laws of the District of Columbia. SECTION 8.2. Counterparts. This Declaration may be executed by the Public Employers and Trustees in twoor morecounterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. to the terms of the instrument. Any of the Trustees may be removed for cause, by a vote of a majority of the Public Employers. (b) Each Public Employee Trustee shall resign his or her position as Trustee within sixty days of the date on which he or she ceases to be a full-time employee of a Public Employer. SECTION 3.5. Vacancies. The term of office of a Trustee shall terminate and a vacancy shall occur in the event of the death, resignation, removal, 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 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 rehrement 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 conclusive evidence of the existence of such vacancy. SECTION 3.6. Trustees Serve in Representative Capacity. By executing this Declaration, each Public Employer agrees that the Public Employee Trustees elected by the Public Employers are authorized to act as agents and 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 Employersor from a Trustee of any Employer Trust; (b) enter into a contract with an Investment Adviser providing, among other things, for the establishment and operation of the Portfolios, selection of the Guaranteed Investment Contracts in which the Trust Property may be invested, selection of other investments for the Trust Property and the payment of 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; (d) revest and reinvest the Trust Property in the Portfolios, the Guaranteed Investment Contracts and in any other investment recommended by the Investment Adwser, provided that if a Pubhc Employer has directed that ~ts monies be invested in specdied Portfohos or *n a Guaranteed Investment Contract, the Trustees of the Retirement Trust shall invest such monies in accordance wdh such d~rechons; Id) keep such porhon of the Trust Property in cash or cash balances as the Trustees. fromt~metohme, maydeemlo he,nme best interest of the Retirement Trust created hereby, w~thout haDd~ty for ~nterest thereon; (f) accept and retain for such t~me as they may deem adwsable any securmes or other property received or acclulred by them as Trustees hereunder, whether or not such securities or other property would normally be purchased as mvestmenls here- under: (gl cause any securdles or other property held as part of the Trust Property to be registered m me name Gl the R,;hremenl Trust or m IP, o name of a nominee, and to hold any ,nvestmenls m b~'arer Iorm Dui the books and records of the Trustees srlall al ,Ill times show that' all such investments are a part of the Trust Property; th) 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; ti) 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 other changes affecting corporate securities, and delegate discretionary powers, and pay any assessments or charges m 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,contractswith custodians and contracts for the provision of administrative services; (k) borrow or raise money for the purpose 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 shah not exceed 30% of the value of the Trust Property. No person lending money to the Trustees shall be bound to see the application of the money lent or to inquire into its validity, expediency or propriety of any such borrowing; (I) incur reasonable expenses as required for the operation of the Retirement Trust and deduct such expenses from the Trust Property; {m) pay expenses properly allocable to the Trust Property incurred in connection with the Deferred Compensation Plans or the Employer Trusts and deduct such expenses from that portion of the Trust Property beneficially owned by the Public Employer to whom such expenses are properly allocable; tn) 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 opmion of the Trustees, are properly levied, or assessed under existing or future laws upon, or in respect of, the Trust Property and al locate any such taxes to the appropriate accounts; (o) adopt, amend and repeal the By-Laws, provided that such By- Laws are at all times conmstent 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 of the Internal Revenue Code. as amended: (q) ~ssue the Annual Report of the Retirement Trust. and the disclosure documents and other literature used by the Rehrement Trust; (r) make loans, including the purchase of debt obligations, prov,ded that aH such loans shall bear interest at the Current market rate; ts) contract for. and delegate any powers granted hereunder to. such ofhcers, agents, employees, auddors and attorneys as the Trustees may select, prov,ded that the Truslees may not delegate the powers set forth m paragraphs (b). (c)and (o) of tins Section 41 and may not delegate any powers d such delegahon would violate their fiduciary duties; (t) prowde for the ~ndemmhcahon of the ofhcers and Truslees of the Retirement Trust and purchase hduc~ary insurance. (u) maintain books and records. ~ncludmg separate accounts for each Pubhc Employer or Employer Trust and such addd=onal separale accounts as are required under, and consistent wHh. the 2