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Res 71-88 RE.ROT,UTI ON ~O. 71 - 88 A RESOLUTION OF THE CI~f COMMISSION OF THE CI~"~f OF DELRAY BEACH, FLORIDA, ADOPTING THE DECLARATION OF TRUST OF IC~iA RETIREMENT TRUST AND AUTHORIZING THE ENTERING INTO OF A TRUST AGREEMENT WITH THE ICMA RETIREMENT CORPORATION; PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Delray Beach, Florida (hereinafter referred to as the "Employer") has previously established and maintains a deferred compensation plan for certain of its employees which is administered by the ICMA Retirement Corporation (hereinafter referred to as the "Administrator"): and, W/~EREAS, other public employers have joined together to establish the ICMA Retirement Trust for the purpose of representing the interests of the participating employers with respect to the collective investment of funds held under their deferred compensation plans; and, WHEREAS, the Employer does hereby wish to adopt the Declar- ation of Trust of ICMA Retirement Trust and authorize the entering into of the Trust Agreement with the ICMA Retirement Corporation. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That the Employer does hereby adopt the Declaration of Trust with the ICMA Retirement Corporation, as same appears in Appendix "B" which is attached hereto and made a part hereof, as an amendment and restatement of its existing agreement with the ICMA Retirement Corporation, and directs the ICMA Retirement Corporation, as Trustee, to invest all funds held under the deferred compensation plan through the ICMA Retirement Trust as soon as is practicable. Section 2. That the Employer does hereby authorize the execution of the ICMA Retirement Trust Agreement, which is attached hereto and made a part hereof and is labeled Appendix "C". Section 3. That the Employer does hereby authorize the Mayor of the City of Delray Beach, Florida to be the coordinator for this program, and to be the official of the City authorized to receive the necessary reports, notices, etc. from the ICMA Retirement Corporation as administrator, and to cast, on behalf of the Employer, any required votes under the program. All administrative duties to carry out the plan may be assigned by the City Manager to either the City Manager's Office or to appropriate departments of the City. PASSED AND ADOPTED in regular session on this the 8th day of November , 1988. MA fOR ATTEST: Ci t~, Clerk APPENDIX_B DECLARATION OF TRUST OF ICMA RETIREMENT TRUST ARTICLE I. NAME AND DEFINITIONS (o) Retirement Trust. The Trust created by th~s Declaration of Trust. Section 1.1 Name: The Name cd the Trust. as amencled and restated hereby. (p) Trust ProDerty The amountS held in the Retirement Trust on behalf ot the Put:)hc EmDIoyers ~n connection w~th Deferrecl Cempensation Plans and on behalf of the is the ICMA Rebrement Trust. Pubhc Employer Trustees for ~he exclusive benefit of Employees pursuant to Ouah- Section 1.2 Definitions: Wherever they are used herein, the following terms fled Plans. The Trust Property s~aJl ~nclude any income resulting from the revest- s~all have the follow~ng respectwe meanmgs: merit cd the amounts so helcl. (a) By. Laws. The By-Laws relerred to in Section 41 hereo(, as amended from (q} Trustees. The Public EmOloyee Trustees and tCMA/RC Trustees electecl by the time to t~m~- Public Employers to serve as mernpers cd the Board of Trustees of the Retirement (b) Deferred Compensation Plan. A deferred coml:)ensation plan e~abiished Trust. anc~ maintained by a Public Employer for the t:)urpose of prOWd~ng retire- mere income and other deferred benefits to its employees in accorclance ARTICLE Il. CREATION AND PURPOSE OF THE TRUST; OWNERSHIP w~th the Drovis~ons of section 457 of the Internal Revenue Code of 1954. OF TRUST PROPERTY as amenc~ed. Section 2.1 Creation: The Retirement Trust is created and established by (c) Employees. Those employees who pa~cipate in Qualified Plans. the execution of th~s Declaration cd Trust by the Trustees and the Publtc Employers. (d) Employer Trust. A trust created pursuant to an agreement between RC ancl a Public Employer for the purpose of investing and administering the Section 2.2 Purpose: The purDose cd the Retirement Trust is to Drovide for funds set asade by such Employer in connection with ~ Deferred Compen- the commingled investment cd funds held by the Public Employers ~n connec. salton agreements w~th ~ employees or in connection wffiq its Qual~ed Plan. lion with their Deferred Compensation and Qualified Plans. The Trust Prop- (e) Guaranteed Investment Contract. A contract entered into by the Re{ire- erty shall be im~sted m the Porttoi~os, in Guaranteed Ir~stment Contracts, sent Trust w~tn insurance coml3an~es that provicles for a guaranteecl rate and in other investments recommended by the Investment Aclviser under the cd return on investments made pursuant to such comract, super'v~sion cd the Boar~ ol Trustees. No paxl cd ~ Trust Property w~i be ir~,~s~ed in securities issued by Public Employers. (q ICMA. The International City Management Association. Section 2.30wnemhlp of 11'ust Property: The Trustees small have lega~ (g) ICMA/RC Trustees. Those Trustees elected by the Public Employers who~ title to the Trust Prope~y. The Public Employers shat! be the beneficial owners in acco~'clance with the i:)rOWsions cd Section 3.1(a) hereof, are also mere- pets of the Board of Directors of ICMA or RC. of the portion of the Trust Property allocable to the Deferred Combensat~on Plans The portion cd the Trust Property allccable to the Qualified P~ans shall (h) Investment Aclwser. The Investment Aclviser that enters into a contract be held for the PuDl~c Employer Trustees for the exclusive benefit of the with the Retirement Trust to provicte advice with respect to ir~estment Of Employees. the Trust Property. ('i) Portfolios. The Pontolios of investments establishecl by the Investment ARTICLE !!I. TRUSTEES Aclv~ser to the Retirement Trust. under the supervision Of the Trustees, for Section 3.1 Number and Qualification of Trustees. the purpose cd providing investments for the Trust Property. (a) The Board of Trustees shall consist of nine Trustees. Five of the Trustees (~ Public Employee Trustees. Those Trustees elected by the Public Employers shall be full.brae employees of a Public Employer (the Public Employee who, in accordance with the provisions of Section 3.1(a) hereof, are full-time Trustees) who are authorized by such Public Employer to serve as Trustee. employees of Public Employ~ers. The remaining four Trustees shall consist of two persons who. at (k) Public Employer TrusteeS. Public Employers who serve as trustees of election to the Board of Trustees. are members cd ~e Boa,,d of Directors of the Qualified Plans. ICMA and ~vo persons who. at the time of elecao~ ere me, nDers o! the Board (3) Public Employer. A unit cd state or local government, or any agency or cd C~rectom of RC (the ICMAJI:~ T~sat~s~. One dele Trustees who is a ctirector instrumentality U'tereof, that has adopted a Deferred Compensation Fqan ot of ICMA. anti One ~ ttqe T~ ad3o ~ a dn'ector of RC, shall, at the time a Qualified Plan and has executed this Declaration of Trust. ~ eleclio~'t, be t,j,..l~"e emt31ola~s o~ a Public Empioye~. (m) Qualified Plan. A ptan sponsored by a Public Employer tot the DurDose (b) No De, son may serve as a Trustee fo~ more than one term in any ten-year Of prowding retirement income to ~ employees which satisfies the clue#fi- penocl. cat,on recluirements cd Sec-~on 401 cd the Internal Revenue Code, as Section 3.2 Election end Term. amended. (a) Except for the Trustees al3Po"nted to M vacanoes Dursuen~ ~ Section 3 5 (n) RC. The International City Management A,.e_~__iation Retirement Corpo- hereof, the Trustees s~all i:)e e~ected Dy a vo~e ota rr .~c,r~W cd tt',e P~,c ration. Employers in accordance w~th the procedures set forth tn (b~' A~ the fir~ election of Trustees, three Trustees shall be elected for a term (f} accept and retain tor such time as they may deem advisable any of three ~p~ars. three Trustees shall be etectecl for a term of two years and three ties or other probe~/received or acquired by them as Trustees hereunder, Trustees shall be elected for a term of one year. At each subsequent election, w~nether or rx:X such securities or other prol:3erty would non'naily be purchased three Trustees shall be elected for a term gl' three years and until his or her es investments hereunder; successor is elacled and qualified. (g) cause any secu~ies or cxher p~opetty held as part of the Trust Property S~ctlon 3.:3 Nominations: The Trustees who are full-time employees o~ Public to be registered in the name of the Retirement Trust or in the name of a nomi. Employers shall serve as the Nominating Committee Ex the Public Employee nee, and to hotd any investments in bearer form. but the books and records Trustee~ The No, hating Cc~'nmillee shaa chot3se ~es Ex Public Employee of the Trustees shall at all times show that all such investments are a part of Trustees in accordance with the procedures se{ forth in the By-Laws. the Trust Property; (h) make, execute` acknowledge, and de~iver any and al! documents of frans. Section 3,4 Re~lgnation end Removal. fer and conveyance and any and all other instruments that may be necessary (a) Any Trustee may reign as Trustee (without need for pdor or subsequent or appropriate to carry out the powers herein granted; accounting) by an instrument in writing S~gned by the Trustee and delivered to the ~ Trustees and such resignation shall be eflec~ve upon such delivery. (i) vcXe upon ara/stock, borx:Ls, or cXt~v secunta~; g~ genera/or spaoal prcmes or at a later date according to the terms of the instrument. Any of the Trustees or powers of attorney with or without Dover of substitution; exercise any con- may be remov*sd for cause, by a vote of a malonty of the Public Employers. ve~on privileges, subscnDtion nghts, or other options` and make any pay- ments inc=denta[ thereto; oppose, or consent to. or othe~vise Darttc[Date in. (b) Each Public Employee Trustee shall resign his or her position as Trustee corporate reorganizations o~ other changes eflect~ng corporate secunt~es, and w~th~n Saxty ctays of the clare on wtq~ch he or s~e ceases to De a full-brae employee delegate discretionary powers, and pay any assessments or charges tn con. of a Public Employe[ nect.on therewith: and generally exercise any of the powers of an Owner with Section 3.5 Vacancies: The term of office of a Trustee shall terminate and respect to stocks, bonds, secu~ies or other property helO as part of the Trus! a vacancy stqall occur in the event of the death, resignation, removal, adiudi- Property; cated ~ncompetence or other incapacity to perform the duties of the office of (j) enter into contracts or arrangements for goocls or services required in con- a Trustee. Jn the c3se of a vacancy, the remaining Trustees shalJ apPOint such nect~on with the operation of the Retirement Trust. ~ncJuding. bu! not person as they in their die-'-retion Shall see lit (subject to the limitations set forth to. contracts w~th custodians and contracts for the provision of adm~n~strattve in th~s Section). to serve for the unexpared portion of the term of the Trustee services; who has resigned or otherWse ceased to be a Trustee. The apPOintment shall (k) borrOw or raise money for the purposes of the Retirement Trust in such be made DY a wntten instrument signed by a majority of the Trustees. The per- amount, and upcm suc~ terms and conditions, as the Trustees shall deem adws- son appointed must be the same type of Trustee (i.e., Public Employee Trus- aide. provided rna! the aggregate an'taunt of such borrOwings shal; not excee(:l tee or ICMA/RC Trustee) as the person who has ceased to be a Trustee. An 30q, b of the value of the Trust Property. No parson lending money to the li'ustees appointment of a Trustee may be made in antfclpat~on of a vacancy to occur shall be bound to see the application of the money lent or to ~nClU~re into ~ts at a tater date by reason of retirement cx resignation, provided that such app~nt- validity, expediency or pro!briery of any such borrOWing; men! shall not become eftect~va prior to such retirement or resignation. When- (I) incur reasonable expanses as required for the operation of the Retirement ever a vacancy in the number of Trustees shall occur, until such vacancy is Trust and deduct such expenses from the Trust Property; filled as DrOwdeq in this Section 3.5, the Trustees in off~:e` regardless of their number, snail have ali the powers granted to the T~stees and shall discharge (m) pay expenses propedy allocable to the Trust Property incurred in connec* tJon with the deferred Compensation Plans. Oualified Plans, or the Employer all the duties imposed upon the Trustees by this Declaration. A written instru- Trusts and deduct such expenses from that portiOrt of the Trust Property to men! certifying the existence of such vacancy s~gned by a malority of the whom such expenses are properly Trustees shall be conclusive ewdence of the existence of such vacancy. (n) pay out of the Trust Property all real and personal property taxes, income Section 3.6 Trustees Serve In Representative Capacity: By executing taxes and other taxes of any and all k~nds who;h, in the oP~r, on of the Trustees. this DecJarat~on. eac~ Public Employer agrees that the Pubic Employee Trus~.~es am properly le~ecL or assessed under ex,sang or future laws upon. cx in respect elected by the Public Employers are authorized tO act as agents and represen- c~, the Trust Property and allocate any such taxes to the appropnate accounts; tatives of the Public Employers coltect~vely. (o) adopt, amend and repeal the By-Laws, providecl mat s~ch By-Laws are at all times consistent with the terms of this Declaration of Trust; ARTICLE iV. I:~OWERS OF TRUSTEES (p) employ persons to make available interests in the Retirement Trust Section 4.1 General Powers: The Trustees shall have the power to conduCt employers eligible to maintain a Deferred Com!oensation Plan under Section the 13us~ness of the Tn..~ and to carry on ~ opera, OhS. Such power shall inctude` 457 Or a Qualified Plan uncler Section 401 of the Internal Revenue Code, as but shall not De limited to. the power to: amended; (a) receive the Trust ProperTy from the Public Employers, Public Employer (Cl) issue the Annual Report of the Re~remen! Trust. and the disclosure docu- Tru~ees or other Trustee of any Employer Trust; ments and other literature usec¢ Dy [ne Rebremen; Irus;. (b) enter into a contraCt with an Investment Actvisar 13roviding. among other (r) make loans, including the purchase of del3! obligations, provided that all things, for the establishment and operation of the Portfolios. selection of the such loans si3all bear ~nterest at the current market rate; Guaranteed Investment Contracts in which the Trust Property may be invested, (s) contract for, and c~elega!e any powers ;ranted hereun(~v t~ such officers, select~n O~ CXt',er inves~nents for the Trust Property and the payment of reasork3- ager-~, employees, auclito~ and attorneys as ~ Trustees may select, provtclecl ble fees to the thvestment Adviser and to any sub-investment aclvisar retained that the Trustees may not delegate the powers set forth in paragraphs (13). (c) by the Investment Adviser; and (o) of this Section 4.1 and may no! cleiegate any powers ~t such oetega. (c) review annually the performance of the Investment Ac!riser and approve tion would viblate their fiduciary cluties: annuaJiy the contract w~th such Inve~ment Aclviser; ({) prOVide for the indemnification of the officers and Trustees of the Re!~rement (d) in,,~a and reinvest ~ Tn~ Prc~oerty in the Po~k31io~ the Guaranteed Intere~ Trust and purchase fiduc;ary insurance; Con{facts and in any cX~er inv~sa'nent reccmmenOed by the thvestment Adviser. (u) maintain books and records, including separate accounts for each Put:~: but ncX inc~t.~ng sacurmes ~sued by Public Employem, provided that il a Public Employe~, Put~ic Employer Trustee or Emt:~yer Tn~ and such ac~fr~,-~ Employer has clirected that its monies be invested in specified Po~olios or arate accounts as are required under, and consistent w~!h, the Deterred Com. in a Guaranteed/tw~stment Con, rat'1, the Trustees of the Retirement Trust shall pens. ation or Ouaiified ~an of each Pub!~c Emptoyer; an(~ invest such monies in accordance with such directions; (v) do ail such ecL% take ail ~ ~roceedings` and exercise all such (e) keep such portion of the Trust Property in cash or cash baJances as the and pnwi'e~es, ~in n~ slay rr~a"a~or, ect here~n, as tr~ T~u,~,',~'~~ rr~j~ Trustees. from time to time, may deem Io be in the be~ intemsl of Ihe Rebre- deem ~ o~ a~,7,,~ime a~ aol, nwasa~ ~'~ 3busl PmCe.,~ a¢~ to carry men! Trust created hereby, w~,hout liab~ity for intere~ thereon; gui the purposes ~t ~ Re~ement Trust. Section 4.2 Dl~trfbution of "l~'u~t Property: Distritx.~ons of the Trust Prop- ARTICLE VI. ANNUAL REPORT TO SHAREHOLDERS , e~? ~Jl be made to. or on behalf of, the Public Employer or Public Emptoyer The Trustees ~ annually s~Jbmit to the Public Employes and Public Employer Trustee, in __~cc_,-j~flance with the terms of the Deferred Compensation Plans. "rmstees a written rep<xt of ~ transacb<:,~ of ~ Re~rement Trust. including lfnan- Oualified Plans or Employer Trusts. The Truslees of the Retirement Trust sh~l cial statements which s/~all be certified by independent public accountants cho- be fully protected in making payments in accordance with the directions of Trusts witt~x;t a.~ce~ta~ning whether such payments are in compliance ~ the ARTICLE VII. DURATION OR AMENDMENT OF RETIREMENT TRUST oreeting the Employe~ 'r~.us~. Section 7.1 Withdrawal: A Public Employer o~ Public Employer Trustee may, at any time, withdraw from this Retirement Trust by clelivenng to the Boarcl of Section 4.3 Execution'of Inetniment~: The Trustees may unanimoudy Trustees a written statement of withdrawal. In such statement, the Public designate any o~e or more of the Trustees to execute any instrument or cl~cuo Employer or Public Employer Trustee shall ackno,vtedge that the Trust Pro~ ment o~ beha/f of all, including b~ not limited to trte s~gning or enclo~ement erty allocable to ~ Public Employer is derived from compensation deferred of any check and the signing of any applications, insurance and other con- by employees of such Public Employer purs~Jant to its Deferred Combensao tracts, ancl the action ot such designated Trustee or Trustees shall have the tJon Plan or from contributions to the accounts ot Employees pursuant to a same force and effect as if taken by all the Trustees. Quali~ed Ptan. ancl shall designate the ~r~anoaJ ir'~lut~on to wt-.ch such property shall be transferred Dy the Trustees of the Re~.~rement Trust or by the Truste~ ARTICLE V. DUTY OF C..ARE AND LIABILITY OF TRUSTEES o~ the Employer Trust. S~:tlon 5.1 Duty of Care: In exercising the powers hereinbefore granted to S,ectlon 7.2 Dut-ation: The Retirement Trust shall continue until terminated the Trustees. the Trustees shall perform all acts w~thtn their authority for the by the vote o~ a majonty of the PubPC Employers. each Cast, rig one vo~e Upon exclusive purpose of prowchng benefits for the Public Employers in connec- termination, all of the Trust Property shall be paiO oul to the Public Employers. ~on wr/n Deferred Compensation Plans and Publ~ Employer Trustees pumuant Public Employer Trustees ~ I~e Trustees of the Employer Trusts. as al~Dropnate. to Qualified Plans, and shall perform such acts with the care. skill, pruclence Section 7.3 Amendment: The Retirement Trus~ may be amended by the vote and diligence in the circumstances then prevadmg that a prudent person act- of a majority of the Public Employers, each casting one vote. ing tn a like caDacity anQ familiar with such mal~ers would use in the concluct Section 7.4 Procedure: A resolution to terminate or amend the Retirement of an enterprise of a like character and with like a~ms. Trust or to remove a Trustee shall be sut~nmed to a v~e of the Public Employers Section 5.2 Liability: The Trustees shall not be liable for any mistake of )uclg- if: (i) a majority of the Trustees so direct, or; (ii) a petition recluestmg a vote, ment or other action teken in gooct faith, and for any action taken o~ om~tled signed by n~ less than 25% of the Public Employers. is submitted to the irt reliance in goo~l faith upon the books of account or other records of the Trustees. 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 Invest. ARTICLE VIII. MISCELLANEOUS ment Adviser or any sub-investment adviser, accountants, appraisers or other Section 8.1 Governing Law: Exce~ as otherwise required by slate or local experts or consultants salected w~th reasonable care by the Trustees. oft~cers law, this Declaration of Trust and the Retiremem Trust hereby created shall be or employees of the Retirement Trust. The Trustees shall also not t~e liable for construed and regulated by the laws of the District of Cofumbla. any loss sustained by the Trust Property by reason of any investment made Section 8.2 Counterpart~: This Declaration may be executed by the Public in go:x:l faith an~ in ___._?Jcc, rt:~a_ nce wi~h the standard of care set fo~h in Seclion 5.1. Employers and Trustees in two o~ more Counterparts. each o~ which shall be Section 5.3 Bond: No Trustee shall be obligated tO give any bend or other deemed an original but all of v~tich together shall com~titute o~e and the same securk'y for the performance of any of his or her duties hereunder, instrument. -APPENDIX C TRUST AGREEMENT WITH THE ICMA RETIREMENT CORPORATION AGREEMENT made by and between the Employer named in the provided, however, that the Employer may direct investment by the attached resolution and the International City Management Association Trustee among available investment alternatives in such proporhons as Retirement Corporation {hereinafter the "Trustee" or "Retirement the Employer authorizes in connechon wi~h ~ts deferred'compensation Corporation"), a nonprofit corporahon orgamzed and existing under the agreements with its employees. For these purposes, these Trust Funds laws of the State of Delaware, for the purpose of mvestmg and otherwise may be commingled with Trust Funds set aside by other Employers administering the funds set aside by Employers in connection with pursuant to the terms of the lCMA Retirement Trust. lnvestmentpowers deterred compensation plans established under section 457 of the vested in the Trustee by the Section may be delegated by the Trustee to Internal Revenue Code of 1954 (the"Code"). This Agreement shall take any bank. insurance or trust company. Or any investment advisor, effect upon acceptance by the Trustee of its appointment by the manager or agent selected by it. Employer to serve as Trustee in accordance herewith as set forth in the attached resolution. Section 2.2. Administrative Powers of the Trustee. The Trustee shall WHEREAS. the Employer has established a deferred compensation plan have the power in its discretion: under section 457 of the Code (the "Plan"); (a) To purchase, or subscribe for, any secur~hes or other WHEREAS. in order that there will be sufficient funds available to property and to retain the same in trust, discharge the Employer's contractual obligations under the Plan, the Employer desires to set aside periodically amounts equal to the amount (b) To sell, exchange, convey, transfer or otherwise dispose of of compensation deferred; any securities or other property held by it, by private contract, or WHEREAS, the funds set aside, together with any and all assets derived at public auction. No person dealing with the Trustee Shall be from the investment thereof, are to be exclusively within the dominion, bound to see the application of the purchase money or to inquire control, and ownership of the Employer, and subject to the Employer's into the validity, expediency, or propriety of any such sale or absolute right of withdrawal, no employees having any interest other disposition. whatsoever therein; (c) To vote upon any stocks, bonds, or other securities; to give NOW. THEREFORE. this Agreement witnesseth that (a) the Employer general or special proxies or powers of attorney with or w~thOut will pay monies to the Trustee to be placed in deferred compensation power of substitution; to exercise any conversion pr~wleges. accounts for the Employer; (b) the Trustee covenants that it will hold subscription rights, or other options, and to make any payments incidental thereto; to oppose, or tO consent to, or otherw,se said sums, and any other funds which it may receive hereunder, in trust for the uses and purposes and upon the terms and conditions participate in, corporate reorganizations or other changes hereinafter stated; and (c) the parhes hereto agree as follows: affecting corporate securities, and to delegate discret~onary powers, and to pay any assessments or charges ~n connection ARTICLE I, General Duties bi the Parties. therewith; and generally to exercise any of the powers of an Section 1.1, General Duty of the Employer. The Employer shall make owner with respect to stocks, bonds, securities or other property regular periodic payments equal to the amounts of its employees' held as part of the Trust Funds. compensation which are deferred in accordance with the terms and (d) To cause any securities or other property be'Id as part of the conditions of the Plan to the extent that such amounts are to be invested Trust Funds to be registered in its own name, and to hold any under 1he Trust. investments in bearer form, but the books and records of the Section 1.2. General Duties of the Trustee. The Trustee shall hold all Trustee shall at all times show that all Such investments are a part funds received by it hereunder, which, together with the income of the Trust Funds. therefrom, shall constitute the Trust Funds. It shall administer the Trust (e) To borrow or raise money for the purpose of the Trust m such Funds. collect the income thereof, and make payments therefrom, all as amount, and upon such terms and conditions, as the Trustee shall hereinafter provided. The Trustee shall also hold all Trust Funds which deem advisable; and. for any sum so borrowed, to ~ssue its are transferred to it as successor Trustee by the Employer from existing promissory note as Trustee, and to secure the repayment thereof deferred compensation ,arrangements with its Employees under plans by pledging all or any part, of the Trust Funds. No person lending described ~n section 457 of me Code. Such Trust Funds shall be subject money to the Trustee shall be bound to see the applicahon of the tO all of the terms and provisions of this Agreement. money lent or to inquire into its validity, expediency or propriety of any such borrowing. ARTICLE II. Powers and Dulies of the Trustee in Inveslmenl, (fi To keep such portion of the Trust Funds in cash or cash Administration, and Disbursement of the Trust Funds. balances as the Trustee. from time to time, may deem to ~e in the best interest bi the Trust create~ hereby, without tiaDff~ty for Section 2.1. Investment Powers and duties of the Trustee. The interest thereon, Trustee shall have the power to invest and reinvest the principal and income of the Trust Funds and keep the Trust Funds invested, without Ig) To accel3t and ~etain for such time as i,t may deem advisable distinction between principal and ~ncome, in securities or in other any securfties or other property received or acqu~re."J by ~t as property, real or personal, wherever situated, including, but not limited Trustee hereunder, whether or not such securities oF o~her lo, stocks, common or preferred. DORQS, retirement annuity and property would normatly De purcnasecl as mveslmen[ nereuncer insurance policies, mortgages, and other evidences of indebtedness or th) To make, execute, acknowledge, and deliver any and all ownership, investment compames, common or group trust funds, or documents of transfer and conveyance and any and all other separate and different types of funds (including equity, fixed income) instruments that may be necessary or appropriate to carry out the which fulfill rec~uirements of state and local governmental laws. powers herein granted. (i) To settle, compromise, or submit to arbitration any claims, When an account becomes an account stated, such account shall be debts, or damages due or owing to or from the Trust Funds; to finally settled, and the Trustee shall be completely discharged and commence or defend suits or legal or administrative proceedings; released, as if such account had been settled and allowed by a judgment and to represent the Trust Funds in all suits and legal and or decree of a court of competent jurisdiction in an action or proceeding administrative proceedings, in which the Trustee and the Employer were parties. (j) To do all such acts. take all Such proceedings, and exercise all The Trustee shall have the right fo apply at any time to a court of such rights and ~rivileges. although not specifically mentioned competent jurisdiction for the judicial settlement of its account. herein, as the Trustee may deem necessary to administer the Trust Funds and to carry out the purposes of this Trust. ARTICLE VI. Resignation and Removal o! Truslee. Section 2.3. Distributions from the Trust Funds. The Employer Section 6.1. Resignation of Trustee. The Trustee may resign at any hereby appoints the Trustee as its agent for the purpose of making time by filing with the Employer its written resignation. Such resignation distributions from the Trust Funds. In this regard the terms and shall take effect sixty (60) days from the date of such filing and upon conditions set forth in the Plan are to guide and control the Trustee's appointment of a successor pursuant to Section 6.3.. whichever shall power, first Occur. Section 2.4. Valuation of Trust Funds. At least once a year as of Sechon 6.2. Removal of Trustee. The Employer may remove the Valuation Dates designated by the Trustee, the Trustee shall determine Trustee at any hme by delivering to the Trustee a written notice of its the value of the Trust Funds. AssetsoftheTrust Funds shall be valued at removal and an appointment of a successor pursuant to Section 6.3. their market values at the close of business on the Valuation Date. or. ~n Such removal shall not take effect prior to sixty (60) days from such the absence of readily ascertainable market values as the Trustee shall delivery unless the Trustee agrees to an earlier effective date. determine, in accordance with methods consistently followed and Section6.3. Appointmen~ of Successor Trustee The appo,ntmen~of undormly applied, a successor to the Trustee shall take effect upon the ~ehvery to the ARTICLE III. For Protection of Truslee. Trustee of (a) an instrument in writing executed by the Employer Section 3.1. Evidence of Action by Employer. The Trustee may rely appointing such successor, and exonerating such successor from upon any certificate, notice or direction purporting to have been signed liability for the acts and omissions of its predecessor, and (b) an on behalf of the Employer which the Trustee believes to have been acceptance in writing, executed by such successor. signed by a duly designated official of the Employer. No commumcation All of the provisions set forth herein with respect to the Trustee shall Shall be binding upon any of the Trust Funds or Trustee until they are relate to each successor with the same force and effect as if SuCh received by the Trustee. successor had been originally named as Trustee hereunder. Section 3.2. Advice of Counsel. The Trustee may consult with any If a successor is not appointed with sixty (60) days after the Trustee legal counsel with respect to the construction of this Agreement. its gives not~ce of its resignation pursuant tO Section 6.1.. the Trustee may duties hereunder, or any act, which it proposes tO take or omit, and shall apply to any court of competent jurisdiction for appointment of a not be liable for any action taken or omitted in good faith pursuant to successor. SuCh advice. Section 6.4. Transfer of Funds to Successor. Upon the resignation or Section 3.3. Miscellaneous. The Trustee shall use ordinary care and removal of the Trustee anti appointment of a successor, and after the reasonable diligence, but shall not be liable for any mistake of judgment final account of the Trustee has Dean properly settled, the Trustee shall or other action taken in good faith. The Trustee shall not be liable for any transfer and deliver any of the Trust Funds involved to such successor. loss sustained by the Trust Funds by reasons of any investment made in ARTICLE VII. Duration and Revocation of Trust Agreement. good faith and in accordance with the provisions of this Agreement. Section 7.1. Duration and Revocation. This Trust shall continue for The Trustee's duties and obligations shall be limited to those such time as may be necessary to accomplish the purpose for which it expressly imposed upon it by this Agreement. was created but may be terminated or revoked at any time by the ARTICLE IV. Taxes, Expenses and Compensation of Trustee. Employer as it relates fo any and/or all related participating Employees. Written notice of such termination or revocation shall be given to the Section 4.1. Taxes. The Trustee shall deduct from and charge against Trustee by the Employer. Upon termination or revocation of the Trust, the Trust Funds any taxes on the Trust Funds or the income thereof or all of the assets thereof shall return to and revert to the Employer. which the Truste~ is required to pay with respect to the interest of any Termination of this Trust shall not, however, relieve the Employer of the person therein. Employer's continuing obligation to pay deferred compensation to Section 4.2. Expenses. The Trustee shall deduct from and charge Employees in accordance with the terms of the Plan. against the Trust Funds all reasonable expenses incurred by the Trustee Section 7.2. Amendment. The Employer shall have the right to amend in the administration of the Trust Funds, including counsel, agency, this Agreement in whole and in part but only with the Trustee's written investment advisory, and other necessary fees. consent. Any such amendment shall become effective upon (a) delivery ARTICLEV. Settlement ofAccounts. The Trusteeshallkeepaccurate to the Trustee of a written instrument of amendment, and (b) the and detailed accounts of all investments, receipts, disbursements, and endorsement by the Trustee on such instrument of its consent thereto. other transactions hereunder. ARTICLE VIII. Miscellaneous. Within ninety (90) days after the close of each fiscal year, the Trustee Section 8.1. Laws of the District of Columbia to Govern. This shall render in duplicate to the Employer an account of its acts and Agreement and the Trust hereby created shall be construed and transactions as Trustee hereunder. If any part of the Trust Fund shall be invested through the medium of anycommon, collective or commingled regulated by the laws of the District of Columbia. Trust Funds, the last annual report of such Trust Funds shall be Section8.2. Successor Empioyers. The"Employer"shallincludeany submitted with and incorporated in the account, person who succeeds the Employer and who thereby becomes subject to the obligations of the Employer under the Plan. If within ninety (90) days after the mailing of the account or any amended account the Employer has not filed with the Trustee notice of Section 8.3. W~thdrawa:ls. The Emp~¥~ cn~¥. a~ a,~'~- ~,,me., am'~ f~om any objection to any act or transaction of the Trustee, the account or time to time. withdraw a po~l~on o,' aB of T~'ust Fun</s ~ea~e~ ~ ~t~r~ amended account shall become an account stated. If any obiection has Agreement. been filed, and if the Employer is satisfied that itshould bewithdrawn or Section 8.4. Gender and Number. The ~nasc~l. ine includes the if the account is adiusted to the Employer's satisfaction, the Employer feminine and the singular includes the pl, vra~ ~nless, t~eco~ext requires shall in writing filecl w~th the Trustee s~gnify approval of the account and another meaning. it shall become an account stated.