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
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