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90-19882 RESO RESOLUTION NO. 90-19882 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE MAYOR AND THE CITY CLERK TO EXECUTE THE AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND ICMA RETIREMENT CORPORATION AND TO EXECUTE SUCH OTHER AGREEMENTS AND DOCUMENTS AS NECESSARY TO IMPLEMENT THE PROGRAM. WHEREAS, in Ordinance No. 83-2398, the City of Miami Beach (the "City") has previously established a Deferred Compensation Plan to be made available to all eligible City employees, elected officials, and independent contractors pursuant to Federal legislation permitting such Plans; and, WHEREAS, the City issued RFP No. 165-88/93 on July 6, 1989 calling for a deferred compensation provider with professional administrator services; and, WHEREAS, the lCMA Retirement Corporation responded to the RFP with a proposal submitted to the City; and, WHEREAS, the attached Agreement provides that lCMA Retirement Corporation, as Plan Administrator, shall hold harmless and indemnify the City, its appointed and elected officers and participating employees from any loss resulting from lCMA Retirement Corporation or its Agent's failure to perform its duties and services pursuant to the Agreement and the Deferred Compensation Plan; and, WHEREAS, the attached Agreement has been recommended by the City Manager and form approved by the City Attorney. NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, as follows: 1. The Mayor and the City Clerk are hereby authorized to execute the attached Agreement between lCMA Retirement Corporation and the City of Miami Beach and to execute all other necessary documents and contracts to implement the program. 2. The Declaration of Trust of the lCMA Retirement is hereby executed by adoption of this Resolution. Trust PASSED and ADOPTED this 17th day of January , 1990. ~ ~ Vice-Mayor Attest: Form Approved Legal Department BY:~"":;;:; /:? ~ Date: / //o/9t:> / ,. EC:lcd Attachment ~ ~ '1Itiaffli ~ ead FLORIDA 33139 "V AC A TlONLAND U. S. A. .. OFFICE OF THE CITY MANAGER ROB W. PARKINS CITY MANAGER CITY RALL 1700 CONVENTION CENTER DRIVE TELEPHONE: 673-7010 COMMISSION MEMORANDUM NO. J 3-Qo January 17, 1990 DATE: FROM: TO: SUBJECT: APPROVAL OF HE DEFERRED COMPENSATION AGREEMENT FOR CITY OF MIAMI BEACH EMPLOYEES WITH ICMA RETIREMENT CORPORATION As a result of proposals submitted in response to RFP 165- 88/93, the City Commission at its December 6, 1989 meeting authorized the Administration to negotiate an Agreement with ICMA Retirement Corporation. The Agreement entered into provided that City of Miami Beach Ordinance No. 83-2398 establishing a Deferred Compensation Plan, adopted by the City of Miami Beach Commission on December 21, 1983, will be adhered to and provide all City employees the necessary protection provided therein. ADMINISTRATION RECOMMENDATION It is the recommendation of the Administration, that the City commission authorize the Mayor and the City Clerk to execute the attached Agreement between the City of Miami Beach and ICMA Retirement Corporation and to execute all other necessary agreements and documents to implement the Program. RWP:EC:lcd Attachment 10 AGENDA ITEM R-l- f3 DATE J-J7-Cfo AGREEMENT THIS AGREEMENT, made and entered into this 30th day of January , 1990, by and between ICMA RETIREMENT CORPORATION, a Del a\vare corporation, with its principal place of business located at 1120 "G" street, N.W., suite 700, Washington, D.C. 20005, and (hereinafter referred to as "Administrator") and the CITY OF KIAMI BEACH, a political subdivision of the state of Florida (hereinafter referred to as "Employer"). WHEREAS, in Ordinance No. B3-2398, the city has previously established a Deferred Compensation Plan (the "Deferred Compensation Plan"); and, WHEREAS, the Employer established a Deferred compensation Plan pursuant to City of Miami Beach Ordinance No. 83-2398 (the "Deferred compensation Plan"); and, WHEREAS, the Administrator represents i tsel f to be experienced and qualified to counsel, advise, and implement the Deferred compensation Plan; and, WHEREAS, the Administrator is capable of providing the Employer with the administrative, marketing and service features for the Deferred Compensation Plan; and, WHEREAS, the Employer desires to engage the Administrator as a non-exclusive administrative contractor for the Deferred Compensation Plan and the Administrator desires to provide said services. NOW, THEREFORE, the parties to this Agreement, intending to be legally bound, and in consideration of the mutual covenants, provisions and warranties contained in this Agreement, do now agree as follows: A. ADDointment. The Employer hereby appoints the Administrator as a non-exclusive administrative contractor for the Deferred Compensation Plan during the term of this Agreement. In discharging its duties under this Agreement, the Administrator shall act as trustee and assume all the fiduciary responsibilities of a trustee. 1 B. Administrator Responsibilities. The Administrator agrees at its expense to do the following, subject to the approval of the Employer: 1. Prepare a written Joinder Agreement; 2. Establish and maintain rules for the administration of the Deferred Compensation Plan; 3. Coordinate the marketing and servicing activities provided in this Agreement; 4. Prepare and distribute an informational booklet or brochure to be furnished to all employees explaining and promoting the Deferred Compensation Plan; 5. Provide an adequate number of licensed and trained representatives to explain and then enroll employees who desire to participate in the Deferred Compensation Plan; 6. Cause contributions of employees participating in the Deferred Compensation Plan to be invested in accordance with the Joinder Agreement between the Administrator and employee; 7. Maintain adequate service and representatives' capabilities to handle the day-to-day requests of participating employees; 8. Furnish each participating employee an itemized statement of account on a calendar quarter basis; 9. Furnish the Employer with a detailed accounting as to the Deferred Compensation Plan on a calendar quarter basis, that identifies clearly all costs to employee, total contributions as well as quarterly, total yield as well as quarterly. C. EmDloyer ResDonsibilities. The Employer agrees at its expense to: 1. Assist the Administrator in the development, implementation and maintenance of the Deferred Compensation Plan; 2. Arrange for representatives of Administrator to conduct orientation meetings with City employees; 3. Disseminate from time to time such promotional material as may be provided by Administrator for employee distribution. 2 4. Make payroll deductions from participating employees' compensation as agreed upon and deliver same to companies investing the deductions in investment contracts selected by the Employee; 5. Timely provide such information and approvals as required by the Administrator, upon its written request, for the maintenance and promotion of the Deferred Compensation Plan; 6. Name a City official to act as contact for the Administrator on behalf of the City. 7. Forward to the Administrator, in a manner agreed upon by the parties, the deductions applied to the Deferred Compensation Plan, lCMA Retirement Manager, Cash compensation Account, Operations corporation, Deferred , 1120 "G" street, N.W., suite 700, Washington, D.C. 20005 and/or to such other accounts and/or addresses as the Administrator may select by giving the City Manager written notice of such addresses. 8. Execute by Resolution the Declaration of Trust of the lCMA Retirement Corporation, attached hereto as Exhibit A. D. ComDensation. The Administrator shall not receive or be entitled to any remuneration from the Employer for performing the services required by this Agreement. E. Confidentiality. The Administrator shall not sell, bargain, convey, exhibit or otherwise abuse the employee list of the Employer which is, and shall hereafter remain, the proprietary and confidential property of the Employer, to the extent allowed by law. F. Term. The term of this Agreement shall be one (1) year from date hereof. Employer agrees to provide thirty (30) days' notice to Administrator of unsatisfactory and/or nonconforming performance hereunder. Administrator shall, thereafter, be afforded sixty (60) days within which to cure and/or remedy performance. This Agreement shall automatically terminate upon the failure of the Administrator to effect fully satisfactory performance within sixty (60) days of receipt of such notice. This Agreement may be renewed for successive one-year (1) periods, at 3 the sole discretion of the City commission, thereafter if written notice is provided by the Employer to the Administrator at least ninety (90) days prior to the end of the initial term or at any time thereafter. The Administrator agrees to abide by the city commission's decision regarding any renewal of this Agreement. G. Indemnification. Administrator agrees to indemnify and hold harmless the Employer, and its individual officers, employees and appropriate officials from any loss, claim, suit, demand, cause of action, or controversy arising from the Administrator or its agents' (including but not limited to the lCMA Retirement Trust) failure to perform its duties and services pursuant to this Agreement, whether it be in contract or in tort, in law or in equity. The Administrator agrees to defend at its sole cost and expense on behalf of the Employer any and all claims, suits, actions, or controversies arising by virtue of this Agreement. The Administrator will pay all judgments including interest, costs and attorneys' fees adjudicated or issued against the Employer. All notices, consents, approvals or other H. Notices. communications hereunder shall be in writing and duly provided if delivered personally or sent certified mail, return receipt requested, to the following addresses stated herein: As to the Emplover: City Manager City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 As to the Administrator: lCMA Retirement Corporation 1120 "G" street, N.W., suite 700 Washington, D.C. 20005 I. Insurance. The Administrator must provide proof of insurance to the City prior to the commencement of this contract. The Administrator agrees to maintain the following required insurance coverages in full effect throughout the duration of this contract. The Administrator, as satisfaction of the requirements, will submit original certificates of insurance to the City of Miami Beach Risk Manager for approval. Additionally, renewal certificates will be forwarded to the City for any successive year the Administrator's services are provided. 4 The required coverages are: 1) Professional Liability in the amount of $1,000,000 per occurrence, written on an occurrence basis. If the policy is a claims-made type, the policy must have an extended reporting period of no less than four (4) years. A certified copy of the policy must be provided to the city. 2) Crime/Fidelity/Employee Dishonesty Bond in the amount of $1,000,000 to cover loss of plan funds due to theft, disappearance or dishonesty by the Administrator's employees. All insurance policies and bonds are to be issued by companies licensed and authorized to do business in the state of Florida and having a rating of at least B+VI per Best's Rating Guide, latest edition. All policies are to contain first dollar coverage. Any alternate insurance coverage will be subject to the prior approval of the city of Miami Beach Risk Manager. J. Amendment. This Agreement may be amended in writing from time to time by the mutual consent of the parties, which amendment shall be attached hereto and made a part of this Agreement. Any amendment to this Agreement shall require the same formalities as were used for its adoption. K. Governina Law. This Agreement shall be governed by and construed according to the laws of the state of Florida. The Administrator shall comply with all applicable Federal, state of Florida, Dade County and City of Miami Beach laws, rules and regulations pertaining to deferred compensation, including, without limitation, City of Miami Beach Ordinance No. 83-2398, as may be amended from time to time. L. Venue. Any legal proceedings arising by virtue of this Agreement shall be in Dade County, Florida. M. Assianments Prohibited. The Administrator shall not assign, sell, pledge, conveyor otherwise transfer its interest pursuant to this Agreement, or delegate or assign any of its duties 5 and/or responsibilities under this Agreement, unless previously authorized by the City commission. The City hereby agrees to the designation of lCMA Retirement corporation to act as Administrator's agent in fulfilling certain of the administrative and marketing aspects of this Agreement. The City is relying on the reputation and integrity of the Administrator in entering into this Agreement and will be insecure in the event of any assignment without the City's consent. N. ci tv Manaqer. The ci ty Manager shall be the administrator and manager of the Employer's responsibilities and procedures which will arise by virtue of this Agreement. The City Manager, in his professional discretion, may designate assistant administrators and/or managers of the Deferred Compensation Plan adopted by the Employer herein. Any matter pertaining to this Agreement which is not expressly set forth herein shall be with the reasonable discretion of the city Manager. o. Termination. In addition to the termination for cause provided for in paragraph F herein, the City shall have the right to terminate this Agreement at the sole convenience of the city, upon thirty (30) days written notice to Administrator. P. Entire Aqreement. This Agreement shall constitute the entire Agreement of the parties. Q. ReDresentations of Administrator. The Administrator hereby represents and warrants that all of the information provided to the City in response to RFP No. 165-88/93 is true and correct. Administrator hereby further warrants and represents that all materials provided to City for dissemination to employees, and all verbal presentations to employees shall be true and correct in all material aspects and not misleading in any material way. Administrator understands and agrees that the City is relying on the truth of the foregoing representations in entering into the Agreement. 6 IN WITNESS WHEREOF, the parties hereby execute this Agreement as of the date and the year first written above. ADMINISTRATOR: ICMA Retirement Corporation ~.. f /Jc-.. President Attest: ~~~\\~&J- EMPLOYER: CITY OF MIAMI BEACH Attest: ltw~~ ,111 &'--~~ City Clerk FORM APPROVED LEGAL DEPARTMENT BY:~~??~ Date: ///~/1() I I EC:lcd 7 APPENDIX B DECLARATION OF TRUST OF leMA RETIREMENT TRUST ARTICLE I. NAME AND DEFINITIONS Section 1.1 Nlme: The Name 01 the Trust. as amended and restated hereby IS the ICMA Retirement Trust Section 1.2 Definitions: Wherever they are used herein, the following terms shall have the following respective meanings (a) By-Laws. The By-LaINS referred to In Section 4.1 hereof. as amended from lime to time. (b) Deferred Compensalion Plan. A deferred compensation plan established and maintained by a Public Employer for the purpose of providing retire- ment Income and other deferred benefits to its employees in accordance with the provisions 01 section 457 01 the Internal Revenue Code oIt9540 as amended. (c) Employees. Those employees who participate in Qualilied Plans (d) Employer Trust. A trust created pursuant to an agreement between RC and a Public Employer lor the purpose 01 investing and admlnlstenng the Iunds set aside by such Employer in connection with its Deferred Compen- sation agreements with its employees 01' .n connection with its Qualified Plan. (e) Guaranteed Investment Contract. A contract entered into by the Retire- ment Trust with insurance companies that provides lor a guaranteed rate 01 return on investments made pursuant to such contract (I) ICMA. The International City Management Association. (g) ICMAlAC Trustees. Those Trustees elected by the Public Employers who. in accordance with the proviSIons 01 Section 3.1(a) hereol. are also mem- bers 01 the Board of Directors of ICMA or RC. (h) Investment Adviser. The Investment Adviser that enters IOtO a contract with the Retirement Trust to provide adv1ce with respect to investment of the Trust Property. (i) Portfolios. The Portfolios of investments established by the Investment Adviser to the Retirement Trust. under the supervision 01 the Trustees. lor the purpose 01 providing investments for the Trust Property. (j) Public Employee Trustees. Those Trustees elected by the Public Employers who, in accordance with the provisions 01 Section 3.1(a) hereolo are Iull.time employees 01 Public Employers. (k) Public Employer Trustees. Public Employers who serve as trustees 01 the Qualified Plans. (I) Public Employer. A unit 01 state or local government. or any agency or Instrumentality thereol. that has adopted a Delerred Compensation Plan or a Qualified Plan and has executed thiS Declaration 01 Trust. (m) Qualified Plan. A plan sponsored by a Public Employer lor the purpose 01 providing retirement income to its employees which satisfies the qualifi- cation requirements 01 Section 401 01 the Internal Revenue Code. as amended . (n) RG. The International City Management Association Retirement Corpo. ration. (0) Retirement Trust The Trust created by thiS Declaration 01 Trust (p) Trust Property. The amounts held In the Retirement Trust on behalf 01 the Public Employers In connection With Delerred CQmpensalion Plans and on behall oIlhe Public Employer Trustees for the exclusive benelil 01 Employees pursuant to Q'Jali. fied Plans The Trust Property shall Include any Income resulling from Ihe '''18st. ment oIlhe amounts so held. (q) Trustees. The Public Employee Trustees and ICMAlRC Trustees elected by the Public Employers to serve as members 01 the Board 01 Trustees 01 the Retlle-nent Trust. ARTICLE II. CREATION AND PURPOSE OF THE TRUST; OWNERSHIP OF TRUST PROPERTY Section 2.1 Creetlon: The Retirement Trust is created and established by the execution 01 this Declaration 01 Trust by the Trustees and the Public Employers. Section 2.2 Purpose: The purpose 01 the Retirement Trust IS to prOVide for the commingled investment ollunds held by the Public Employers in connec. tion with their Delerred Compensation and Qualilied Plans The Trust Prop- erty shall be invested in the Portfolios, in Guaranteed Investment COn\,actso and in other investments recommended by the Investment Adviser under the SUpervision 01 the Board 01 Trustees. No part 01 the Trust Property will be il'?'eSled in securities issued by Public Employers. Section 2.3 Ownership of nu.t Property: The Trustees shall have legal title to the Trust Property. The Public Employers shall be the beneficial owners 01 the portion of the Trust Property allocable to the Delerred Compensation Plans The portion 01 the Trust Property allocable to the Qualilied Plans shall be held lor the Public Employer Trustees lor the exclusive benefit 01 the Employees. ARTICLE III. TRUSTEES Section 3.1 Number end Qualification of Tru.t.... (a) The Board of Trustees shall consist 01 nine Trustees. Five 01 the Trustees shall be lull-time employees of a Public Employer (the Public Employee Trustees) who are authorized by such Public Employer to serve as Trustee The remaining lour Trustees shall consist 01 two persons whoo at the time 01 election to the Board 01 Trustees. are members 01 the Board 01 Directors 01 ICMA and two persons who, at the time 01 election. are members 01 the Board 01 Directors 01 RC (the ICMAlAC Trustees) One 01 the Trustees who is a dlrector oIICMA. and one of the Trustees who IS a director of RC. shallo at the ~me 01 electiono be lull-time employees of a Public Employer. (b) No person may serve as a Trustee lor more than one term in any ten-year period. Section 3.2 Election end Term. (a) Except lor the Trustees apPOinted to fill vacancies pursuant to Section 3.5 hereolo the Trustees shall be elected by a lIOIe 01 a maJority 01 the Public Employers in accordance with the procedures set forth in the By-LaINS. 'hi AI 'tlf) '''';1 'lh'("'Qn 01 TrU5l005. It>rf'(' ',,~f~ ;/',,11 ~ 01''''1'11'01 I 'I'rm ')t Ihrpc year',. It>rfll' Tru!;I{)f~s 50all tlf' .~"..:~-1 'I')r l'm'" ,,' two I"."'; .1I111 "'If?" Trusloos 5h;J1I bf! oll'ClOd lor 'llmm 01 or~ {I)'l' AI p.ac~ 5IJI>"1"1",,"1 ..11'(:!,on 'h,er. Trustees 5hall be elected 'or oJ Ie'''' "f '1",,,, ,wJars .tnl1 ,,nl,1 IllS ()( ht'l successor '5 elected and Quahlled Section 3.3 Nomination.: The Trustees wtr, are lull Ilmfl employ<ms 01 Public Employe's shall serve ilS the Nominating Cf)mmlnee for :he Pubhc Emplovcl' Trust~ The Nomln.l1lnq Comm,nee snail ctvJ()';ll 'Andldalfl"olQr Publlr Em(1lovf!<' Trustees ,n accordance WIth the procedu,e-; 3ef forth ,n Ihfl Bv Law.; Section 3." Re.lgnatlon and RemOYllI. (a) Any Trustee may resIgn as Trustee (w~rcout need lor Ollor or subsequent accountlng) by an Instrument .n Wilting SIgned by the T'ustee and dehvered to the oIher Trustees and such r8Slgnal1on snaIl be effsctlve upon such dellveryo or at a laler date accordlOg to the lerms 01 the Instrument Any of the Trustees may be removed lor cause, by a vole 01 a maJOllty of the Pubhc Employers (b) Each PublIC Employee Trustee shall 'E!$lgn hiS or her pOSllton 8S Trustee wrthin SIxty days 01 the date on which he or she ceases to be a full'l1me employee of a Public Employer. Section 3.5 Vlicancle.: The term at office 01 a Trustee shall lermlnale and a vacancy shall occur in the event at the deatho r8Slgnalton. removal. adjudi. cated incompetence or other incapacIty to perform the duties of the office of a Trustee. In the case of a vacancy, the rE!l"1alning Trustees shall appoint such person as they In their discretion shall s.M lit (SUbject to the Iim.tatlons set forlh in this Section), to serve for the unexptred portion of the lerm 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 per. son appointed must be the same type at Trustee (i.e. 0 Public Employee Trus. tee or ICMAlRC Trustee) as the person who has ceased to be a Trustee. An appointment at a Trustee may be made in anticipation at a vacancy to occur at a later dale by reason at retirement or rssgnalion, prcMded that such appoint- ment shall not become effective prior to such retirement or resignation. When- ever a vacancy In the number of Trustees shall occuro until such vacancy is filled as provided in this Section 3.5, the Trustees in officeo regardless of their number, shall have alllhe powers granted to the Trustees and shall discharge all the duties imposed upon the Trustees by this Declaration. A written instru. ment certifying the existence of such vacancy signed by a majority of the Trustees shall be conclusive evidence 01 the existence of such vacancy. Section 3.8 lhIst... Serve In Representative Capacity: By executing this Declaration, each Public Empl~ agrees lhaIlhe Public EmplO'y'ee Trustees elected by the Public Employers are authorlzed to act as agents and represen- tatives at the Public Employers collectively ARTICLE IV. POWERS OF TRUSTEES Section 4.1 General Powera: The Trustees shall have the power to conduct the business 01 the Trust and to carry on its operaIions. Such pa.Nel' shall include. but shall not be limited to, the poNer to: (a) receive the Trust Property lrom the Public Employerso Public Employer Trustees or other Trustee of any Employer Trust; (b) enter into a contract with an Investment Adviser prCMding, among other things, for the establishment and operation of the Por1folioso selection of the Guaranteed Investment Contrscts in which the Trust Property may be invested, selection at other irM3Stments for the 'iust Property and the payment cA reasona- ble lees to the Investment Adviser and 10 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) ir1llest and reif1llllSlthe Trust Property in the Portfolios. the Guaranteed Interest Contracts and in arry other investment recommended by the Investment Adviser. but not irduding securities issued by Public Employers. provided that il a Public Employer has directed that its monies be .nvested in specified Portfolios or in a Guaranteed Investment Contracto 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 Retire- ment Trust created hereby, without liability lor interest thereon; If) ,Ir.r:f":tr,f ."(1 'I'!;,,' "J .IJf~' "fl'I' .1~ ftley mil\, l1cp.m ar1""Yhh'! .Jny '~"_ .' 11'~fi 1)( ,)ft't!' O'qr."..... t '~.(l""Hj'lt tcqUtfod by thorn ,J!; Trusl~,; ""1'?"~'.""'~/~f Wtll'lt'l'l '), '~JI ~,.r.' ',1,r..Jrll,,'~ '), ')I".'r properly would normallv be purc' 'l'~rl ,I'; lnv(y~'m~nt~, .'~":- ....(jer (,/) r:;au';.) 'lrlY ',P(, ,0'&:', or ott1flr p'ooerly held as part oIltle Trust P"M:~( to bfl req.-;I')r'Kl n "I: ".;jme 01 Ihe ~ettlement Trus! or ,n the name of a 'orJM' nne. ,lnrllO hf)ld olr', "'\IP.sfm'lOI5 In bearer lorm. bullhe books and 'P.t:."y, of Iho 1rU5'e,,', ',t:a' 1: all I,m 00, snow thaI all such .nvestments are a ~,. of Ihfl Tr",;I Properly (h) make. '!xocute. 'J~mowledge. ana deliver any and all documents 01 !.ans ler and conveyance a'<J any and all other .nstruments that may be neces.sary or appropnate to r;a.'1 oul Ihe powers hereIn granted: (i) ..ute upon any Slot>' bonds, or other secuntles: gIve general 01 specIal P'Cli'les or powers or allornet 'Mth or wlthoul power at subshlutlon: exerCise any con. verSion prlVllegeso SI,OSC(lptlon (lghlS. or other options. and make any pay. ments Incldentalthe-!\O, opposeo or consent 10, or otherwIse parllcipale In. corporate reorgantza:.ons or other changes effecting corporale securities. and delegate d.scretlona'1 powers, and pay any assessments or charges In -:on. nection therewith; ar<j generally exercise any of the powers or an owner Mlh respect to stocks. bct'ds, securities or olher properly held as parl of the rrust Properly: 0) enter into contraClS or arrangements for goods or servIces requrred .n con. nection w'lh the ope-ar.on 01 the Retllement Trusto Includino, but not limited to. contracts With cusrodlans and contracts for the prOV'Slon of admtnlS!'a!.ve services: (k) borrow or raise ""<>ney for the purposes of the Relrrement Trust .n such amounto and upon Sl.Cllerms and conditions. as the Trustees shall deem advis- able. prOVided thatll~ aggregate amount 01 such borrOWings shall not exceed 30% of the value cA !he Trust Property No person lending money to the Trustees shall be bound to see the application 01 the money lent or to Inqurre Into its validity, expediency or propriety of any such borrowing; (I) incur reasonable expenses as required for the operation of the Retrrament Trust and deduct SUCh expenses Irom the Trust Property; (m) pay expenses properly allocable to Ihe Trust Property Incurred in connec. tion with the Delerrea Compensation Plans, Qualified Plans, or the Empl'>,'er Trusts and deduct such expenses Irom that portion of the Trust Propertt to whom such expenses are property allocable; (n) payout of the TruS! Property all real and personal property taxes, income taxes and other taxes ~ any and all kinds which, in the opinon 01 the TruSlees, are propeny laried, 01 assessed under existing or Mure laws upono or in respect 010 the Trust Property and allocate any such taxes to the appropnate accounts; (0) adopto amend and repeal the By-Laws, provided that such By-Laws are at all times consiste~ with the lerms of this Declaration of Trust; (p) employ persons to make available interests in the Rebremenl Trust to employers eligible to maintain a Defen'ed Compensation Plan under Sec::on 457 or a Qualified Plan under Section 401 of the Internal Revenue Code. as amended: (q) issue the Annual Reporl of the Retirement Trusto and the disclosure dcx:u- ments and other literature used by the Retirement Trust: (r) make lcanso including the purchase or debt obligationso provided thaI all such loans shall bear interest at the current market rate; (s) contractloro and Delegate any powers granted hereunder to, such officerso agentso empla,oees. auditors and attorneys as the Trustees may select, prO'o/IOed that the Trustees may not delegate the powers set forth in paragraphs (b), (c) and (0) 01 this Section 4.1 and may not delegate any powers II such delega- tion would violate their fiduciary duties; (t) provide lor the inoemnification cA the oIficers and Trustees eX the Retirement Trust and purchase liduciary insurance; (u) maintain books and records. including separate accounts for each Public Employer. Public Err>ooyer Trustee or Employer Trust and such additional sep- arate accounts as all! required under. and consistent witho the Deferred G.Jm. pensation or Qualified Pian of each Public Employer; and (v) do all SuCh acts. lake all such proceedings, and exercise all such nghts and privileges. although not specificalty mentioned herein, as the Trustees may deem necessary or appropriate to administer the Trust Propel1y and to carry out the purposes cA the Retirement Trust. S<<tlon ..2 Dlltrlbutlon of lhIlt Property: O.r,lr,t",'",n~,~.r '! ''',SI P'C)[J "", I;III I.!<! mad" '0. I)' ~n hPhdlf Of Ih" P'JhIlC Empl,,,...r 'ir P'A),r, fmployr" "r'j...t'~,. n ,lcr;nrdanc,! wIth Hl('l 'f1rmr, of t"'f~ D~,!r'''!'f1 r::orn~r,r.rtrlon pl.H,r" ~'J-l"'''!'J PiaII'; ar Employe' T'w;t~. The TILJ~tfle~ rJf "'p' R"'",!m'!n! r,usl shall C'f' '1,/1 ( p'otoctcll '1" maklnQ payments In ;)Cr;O'dilncl1 ""Ih 'he ryllochon5 of 't'f! P,tohr; EmplO'y'f!r<;, PublIC EmplOy'U' Truslecs or fJlher Tr'J<;!1)<) rJ!tIe EmplOy'Ur ."J~I~ Nlthoul olSCCrlaorunQ whethor such paymenl~; "'1) ,n compll'lnce ""Ih Ihl) ;)rr)V""ons rJf Ih,! Delerred CompensatIon or Qua"floo Plans. 0' ""! 3Q'ecments -re,]I,n'} 'hI) Employer Trusts s.etlon ..3 ExecutIon of In.trumen..: The Truste<!S may 'Jnan.mously Jesoqnale anyone or more of tho Trustees 10 execute any Instrument or docu. ~e"t on behalf 01 all, ,ncluding but not limIted to Ihe SlQnlng 0r 'lndorsement J/ any check and the SIgning 01 any applications, Insurance and other con. :racts, and the action of such deSignated Trustee or Trustees shall have the same force and effecl as II taken by all the Trustees ARTlClE V. DUTY OF CARE AND LIABILITY OF TRUSTEES SectIon 5. t Duty of C~II": In exerciSing the powers herelnbefOle granted to me Trustees, the Trustees shall perform all acts within thelf authoroty lor the excluSIve purpose 01 prOViding benelits lor the Public Employers In connec. ~on with Deferred Compensation Plans and Public Employer Trustees pursuant :0 Qualilied Plans, and shall perform such acts with the careo skJiI, prudence af'd diligence in the circumstances then prevailing that a prudent person act. no ,n a like capaCity and familiar with such matters would use In the conduct Ot an enterprise of a like character and With like alms SectIon 5.2 Uablllty: The Trustees shall not be liable 101 any mistake of Judg. ment or other action taken in good faith. and lor any action taken or omItted In reliance in good faith upon the books of account 01 other recOlds of the RetIrement Trust, upon the opinion of counselo or upon reports made to the Aearement Trust by any of its officers. employees 01 agents or by the fnvest- ment Adviser or any sub-investment advisero accountants, appraisers or other exoerts or consultants selected with reasonable care by the Trustees. officers 01 employees of the Retirement Trust, The Trustees shall also nOl be liable lor any loss sustained by the Trust Property by reason of any investment made iI'I good Iarth and in accordance with the standard d care gellorth in Section 5.1. Sec:tIon 5.3 Bond: No Trustee shall be obligated to give any bond or other secunty for the performance 01 any of his or her duties hereunder. ARTICLE VI. ANNUAL REPORT TO SHAREHOLDERS Thl! T,u<;!l'f!<; ,h;11I 01""'-<1,1.'( ".u\)m,l 10 'he Public EmplOll"r5 .Jnd PUhllc fmDlo'(e' TrlJstOO!>.1 Wrltt"" rOI1O" -:J rho Irlln<;actloos of fhe RoIlfemt"nt Tru!';!, Includlnq ~nan. r:lal stalemen!!; ..,t"ch ;r.:.lll nn cerllfloo by Independent ouh"c accountant:; ="0 ;en by Ihe Trustf'Cs ARTICLE VII. DURATION OR AMENDMENT OF RETIREMENT TRUST Section 7.1 Wllhd.....l: A PubliC Employer or PublIC Employer TrUSle<! ""8y at any lime, WIthdraw ',om Ihls Retorement Trust by del.verlng to the Boa'd of T'ustees a written statement of Withdrawal In such statement. the PubliC Employe' or PubliC Emplover Trustee 'IIlall acknowledge that the Trust p'oo. ertv allocable to the PublIC Employer's derived from compensallon deferred by employees of such PUblic Employer pursuant to lIs Deferred Compensa. tlon Plan or Irom contrIbutiOns 10 Ihe accounts d Employees pursuant 10 a Qualified Plan, and !ih;jl designate the finanoallnstrtul1On to whICh such pre>petty shall be transferred by the Trustees 01 the Aelllemenl Trust or by the Trustee 01 the Employer Trust Section 7.2 Du..tlon: The Aetirement Trust shall continue untrltermlnated by the ...ote d a majonty d the PUblic Employers. each casting one VOle Uoon termination. all 01 the Trust Property shall be paid out to the Public Employers, PublIC Employer Trustees or the Trustees of the Employer Trusts. as appropnale SectIon 7.3 Amendment: The Retirement Trust may be amended by the 'ode of a majority of the PubliC Employers. each casting one vote. Section 7." ProcedU,.: A resolution to terminate or amend the Retirement Trust 01 to remove a Trustee shall be submilled to a \/Ole of the PUblic Employers il: (i) a majority 01 the Trustees so direct. or; (ii) a petition requesting a \/Ole, Signed by not less than 25% of the Public Employerso IS SUbmItted to the Trustees ARTICLE VIII. MISCELLANEOUS Section 1.1 Governing lAw: Except as otherwise reQurred by state or local law, this Declaration d Trust and the Retirement Trust hereby created shall be construed and regulated by the laws of the District d Columbla, Section 1.2 Counterpllrt8: This Declaration may be executed by the PublIC Employers and Trustees in two or more counterparts, each of which shall be deemed an original but all 01 which together shall constitute one and the same instrument.