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HomeMy WebLinkAbout93-051 . . -~. RESOLUTION NO. 93-51 WHEREAS, the Board of Supervisors met in Special Session this 16th day of February, 1993; and WHEREAS, the establishment of a deferred compensation plan for such employees serves the interests of Mohave County by enabling it to provide reasonable retirement security for its employees, by providing increased f lexibili ty in its personnel management system, and by assisting in the attraction and retention of competent personnel; and WHEREAS, Mohave County has determined that the establishment of a deferred compensation plan to be administered by the lCMA Retirement Corporations services the above objectives; and WHEREAS, Mohave County desires that its deferred compensation plan be administered by the lCMA Retirement Corporation, and that the funds held under such plan be invested in the lCMA Retirement Trust, a trust established by public employers for the collective investment of funds held under their retirement and deferred compensation plans; NOW, THEREFORE, BE IT RESOLVED that Mohave County hereby adopts or has previously adopted the deferred compensation plan (the "Plan") in the form of: the plan provided by Mohave County referred to as Appendix A. BE IT FURTHER RESOLVED that Mohave County hereby executes the Declaration of Trust of the lCMA Retirement Trust, referred to as Appendix B; and BE IT FURTHER RESOLVED that the Personnel Director shall be the coordinator for this program; shall receive necessary reports, notices, etc. from the lCMA Retirement Corporation of the lCMA Retirement Trust; shall cast, on behal f of Mohave County; and required votes under the lCMA Retirement Trust; may delegate any administrative duties relating to the Plan to appropriate departments; and is authorized to execute all necessary agreements with lCMA Retirement Corporation incidental t.o the administration of the Plan. "\ the Board APPENDIX A . MOHA VE COUNTY ICMA PLAN DOCUMENT Resolution for a Legislative Body ICMA Deferred Compensation Plan . PERSONNEL AND RISK MANAGEMENT EFFECTIVE: JANUARY 1, 1993 . . . . DEFERRED COMPENSATION PLAN ARTICLE I. INTRODUCTION The Employer hereby establishes Mohave County's Compensation Plan, hereafter referred to as the "plan". consists of the provisions set forth in this document. Deferred The Plan The primary purpose of this Plan is to provide retirement income and other deferred benefits to the Employees of Mohave County in accordance with the provisions of Section 457 of the Internal Revenue Code of 1986, as amended (the "Code"). This Plan shall be an agreement solely between Mohave County and participating Employees. ARTICLE II. DEFINITIONS 2.01 Account: The bookkeeping account maintained for each Participant reflecting the cumulative amount of the Participant's Deferred Compensation, including any income, gains, losses, or increases or decreases in market value attributable to Mohave County's investment of the Participant's Deferred Compensation, and further reflecting any distributions to the Participant or the Participant's Beneficiary and any fees or expenses charged against such Participant's Deferred Compensation. 2.02 Administrator: The person or persons named to carry out certain nondiscretionary administrative functions under the Plan, as hereinafter described. Mohave County may remove any person as Administrator upon 60 days' advance notice in writing to such person, in which case Mohave County shall name another person or persons to act as Administrator. The Administrator may resign upon 60 days' advance notice in writing to Mohave County, in which case Mohave County shall name another person or persons to act as Administrator. 2.03 Beneficiary: The person or persons designated by the Participant in this Joinder Agreement who shall receive any benefi ts payable hereunder in the event of the Participant's death. In the event that the Participant names two or more Beneficiaries, each Beneficiary shall be entitled to equal shares of the benefits payable at the Participant's death, unless otherwise provided in the Participant's Joinder Agreement. If no beneficiary is designated in the Joinder Agreement, if the Designated Beneficiary predeceases the Participant, or if the designated Beneficiary does. not survive the Participant for a period of fifteen (15) days, then the estate of the Participant shall be the Beneficiary. 2.04 Deferred Compensation: The amount of Normal Compensation otherwise payable to the Participant which the Participant and Mohave County mutually agree to defer hereunder, any amount credited to a Participant's Account by reason of a transfer under section 6.03, or any other amount which Mohave County agrees to credit to a Participant's Account. . . . 2.05 Employee: Any indi vidual who provides services for the Employer, whether as an employee of Mohave County or as an independent contractor, and who has been designated by Mohave County as eligible to participate in the Plan. Includible Compensation: The amount of an Employee's compensation from Mohave County for a taxable year that is attributable to services performed for Mohave County and that is includible in the Employee's gross income for the taxable year for federal income tax purposes; such term does not include any amount excludable from gross income under this Plan or any other plan described in Section 457(b) of the Code or any other amount excludable from gross income for federal income tax purposes. Includible Compensation shall be determined without regard to any community property laws. 2.06 Employer: Mohave County 2.07 Joinder Agreement: An agreement entered into between an Employee and Mohave County, including any amendments or modifications thereof. Such agreement shall fix the amount of Deferred Compensation, specify a preference among the investment alternatives designated by Mohave County, designate the Employee's Beneficiary or Beneficiaries, and incorporate the terms, conditions, and provisions of the Plan by reference. 2.08 Normal Compensation: The amount of compensation which would be payable to a Participant by Mohave County for a taxable year if no Joinder Agreement were in effect to defer compensation under this Plan. 2.09 Normal Retirement Age: Age 70~, unless the Participant has elected an alternate Normal Retirement Age by written instrument delivered to the Administrator prior to Separation from Service. A Participant's Normal Retirement Age determines the period during which a Participant may utilize the catch up limitation of Section 5.02 hereunder. Once a Participant has to any extent utilized the catch up limitation of Section 5.02, his Normal Retirement age may not be changed. A Participant's alternate Normal Retirement Age may not be earlier than the earliest date that the Participant will become eligible to retire and receive usual retirement benefits under Mohave County's basic retirement plan covering the Participant and may not be later than the date the Participant will attain age 70~. If a Participant continues employment after attaining age 70~, not having previously elected alternate Normal Retirement Age, the Participant's alternate Normal Retirement Age shall not be later than the mandatory retirement age, if any, established by Mohave County, or the age at which the Participant actually separates from service if Mohave County has no mandatory retirement age. If the Participant will not become eligible to receive benefits under a basic retirement plan maintained by Mohave County, the Participant's alternate Normal Retirement Age may not be earlier than age 55 and may not be later than age 70~. . . . 2.10 Participant: Any Employee who has joined the Plan pursuant to the requirements of Article IV. 2.11 Plan Year: The calendar year. 2.12 Retirement: The first date upon which both of the following shall have occurred with respect to a participant: Separation from Service and attainment of age 65. 2.13 Separation from Service: Severance of the Participant's employment with Mohave County which constitutes a "separation from service" with the meaning of Section 402 ( e ) ( 4 ) ( A ) ( iii ) of the Code. In general a Participant shall be deemed to have severed his employment with Mohave County for purposes of this Plan when, in accordance with the established practices of Mohave County, the employment relationship is considered to have actually terminated. In the case of a Participant who is an independent contractor of Mohave County, Separation from Service shall be deemed to have occurred when the Participant's contract under which services are performed has completely expired and terminated, there is no foreseeable possibility that Mohave County will renew the contract or enter into a new contract for the Participant's services, and is not anticipated that the Participant will become an Employee of Mohave County. ARTICLE III. ADMINISTRATION 3.01 Duties of Mohave County: Mohave County shall have the authori ty to make all discretionary decisions affecting the rights or benefits of participants which may be required in the administration of this Plan. 3.02 Duties of Administrator: The AdministratoJ;', as agent for the Employer, shall perform nondiscretionary administrative functions in connection with the Plan, including the maintenance of participants' Accounts, the provision of periodic reports of the status of each Account, and the disbursement of benefits on behalf of Mohave County in accordance with the provisions of this Plan. ARTICLE IV. PARTICIPATION IN THE PLAN 4.01 Initial Participation: An Employee may become a Participant by entering into a Joinder Agreement prior to the beginning of the calender month in which the Joinder Agreement is to become effective to defer compensation not yet earned. 4.02 Amendment of Joinder Agreement: A Participant may amend an executed Joinder Agreement to change the amount of compensation not yet earned which is to be deferred (including the reduction of such future deferrals to zero) or to change his investment preference (subject to such restrictions as may result from the nature of terms of any investment made by Mohave County). Such amendment shall become effective as of the beginning of the calendar month commencing after the date the amendment is executed. A Participant may at any time amend his Joinder Agreement to change the designated Beneficiary, and such amendment shall become effective immediately. . . . ARTICLE V. LIMITATIONS ON DEFERRALS 5.01 Normal Limitations: Except as provided in section 5.02, the maximum amount of Deferred Compensation for any Participant for any taxable year shall not exceed the lesser of $7,500.00 or 33- 1/3 percent of the Participant's Includible Compensation for the taxable year. This limitation will ordinarily be equivalent to the lesser of $7,500.00 or 25 percent of the Participant's Normal Compensation. 5.02 Catch up Limitation: For each of the last three (3) taxable years of a Participant ending before his attainment of Normal Retirement Age, the maximum amount of Deferred Compensation shall be the lesser of: (1) $15,000 or (2) the sum of (i) the Normal Limitation for the taxable year, and (ii) the Normal Limitation for each prior taxable year of the Participant commencing after 1978 less the amount of the participant's Deferred Compensation for such prior taxable years. A prior taxable year shall be taken into account under the preceding sentence only if (i) the Participant was eligible to participate in the Plan for such year (or in any other eligible deferred compensation plan established under Section 457 of the Code which is properly taken into account pursuant to regulations under section 457), and (ii) compensation ( if any) deferred under the Plan ( or such other plan) was subject to the deferral limitations set forth in Section 5.01. 5.03 Other plans: The amount excludable from a Participant's gross income under this Plan or any other eligible deferred compensation plan under section 457 of the Code shall not exceed $7,500.00 (or such greater amount allowed under Section 5.02 of the Plan) , less any amount excluded from gross income under section 403 (b), 402 (a)( 8), or 402 (h)( 1)( B) of tl1-e Code, or any amount with respect to which a deduction is allowable by reason of a contribution to an organization described in section 501(c)(18) of the Code. ARTICLE VI. INVESTMENTS AND ACCOUNT VALUES 6.01 Investment of Deferred Compensation: All investments of Participant's Deferred Compensation made by Mohave County, including all property and rights purchased with such amounts and all income attributable thereto, shall be the sole property of Mohave County and shall not be held in trust for Participants or as collateral security for the fulfillment of Mohave County's obligations under the Plan. Such property shall be subject to the claims of general creditors of Mohave County, and no Participant or Beneficiary shall have any vested interest or secured or preferred position with respect to such property or have any claim against Mohave County except as a general creditor. 6.02 eredi ting of Accounts: The Participant's Account shall reflect the amount and value of the investments or other property obtained by Mohave County through the investment of the Participant's Deferred Compensation. It is anticipated that Mohave County's investments with respect to a Participant will . . . conform to the investment preference specified in the participant's Joinder Agreement, but nothing herein shall be construed to require Mohave County to make any particular investment of a Participant's Deferred Compensation. Each Participant shall receive periodic reports, not less frequently than annually, showing the then current value of his Account. 6.03 Transfers: ( a ) Incoming Transfers: A transfer may be accepted from an eligible deferred compensation plan maintained by another employer and credited to a Participant's Account under the Plan if (i) the Participant has separated from service with that employer and become an Employee of Mohave County, and (ii) the other employer's plan provides that such transfer will be made. Mohave County may require such documentation from the predecessor plan as it deems necessary to effectuate the transfer, to confirm that such plan is an eligible deferred compensation plan within the meaning of Section 457 of the Code, and to assure that transfers are provided for under such plan. Mohave County may refuse to accept a transfer in the form of assets other than cash, unless Mohave County and the Administrator agree to hold such other assets under the Plan. Any such transferred amount shall be treated as a deferral subject to the limitations of Article V, except that, for purposes of applying the limitations of Sections 5.01 and 5.02, an amount deferred during any taxable year under the plan from which the transfer is accepted shall be treated as if it has been deferred under this Plan during such taxable year and compensation paid by the transferor employer shall be treated as if it had been paid by Mohave County. (b) Outgoing Transfers: An amount may be transferred to an eligible deferred compensation plan maintained by another employer, and changed to a Participant's Account under this Plan, if (i) the Participant has separated from service with Mohave County and become an employee of the other employer, ( ii ) the other employer's plan provides that such transfer will be accepted, and (iii) the Participant and Mohave County have signed such agreements as are necessary to assure that Mohave County's liability to pay benefits to the Participants has been discharged and assumed by the other employer. Mohave County may require such documentation from the other plan as it deems necessary to effectuate the transfer, to confirm that such plan is an eligible deferred compensation plan within the meaning of section 457 of the Code, and to assure that transfers are provided for under such plan. Such transfers shall be made only under such circumstances as are permitted under section 457 of the Code and the regulations thereunder. 6.04 Employer Liability: In no event shall Mohave County's liabilityto pay benefits to a Participant under Article VI exceed the value of the amounts credited to the participant's Account; Mohave County shall not be liable for losses arising from depreciation or shrinkage in the value of any investments acquired under this Plan. . . . ARTICLE VII. BENEFITS 7.01 Retirement Benefits and Election on Separation from Service: Except as otherwise provided in this Article VII, the distribution of a Participant's Account shall commence as of April 1 of the calendar year after the Plan Year of the Participant's Retirement, and the distribution of such retirement benefi ts shall be made in accordance with one of the payment options described in Section 7 . 02 . Notwi thstanding the foregoing, the Participant may irrevocably elect within 60 days following Separation from Service to have the distribution of benefi ts commence on a fixed determinable date other than that described in the preceding sentence which is at least 60 days after the date such election is delivered in writing to Mohave County and forwarded to the Administrator, but not later than April 1 of the year following the year of the Participant I s Retirement or attainment of age 70~, whichever is later. 7.02 Payment Options: As provided in Sections 7.01, 7.04 and 7.05, a Participant or Beneficiary may elect to have value of the Participant's Account distributed in accordance with one of the following payment options, provided that such option is consistent with the limitations set forth in Section 7.03. (a) Equal monthly, quarterly, semiannual or annual payments in an amount chosen by the Participant, continuing until his Account is exhausted. (b) One lump-sum payment: (c) Approximately equal monthly, quarterly, semiannual or annual payments, calculated to continue for a specific period chosen by the Participant; (d) Annual Payments equal to the minimum distributions required under Section 401(a)(9) of the Code over the life expectancy of the Participant or over the life expectancies of the Participant and his Beneficiary; (e) Payments equal to payments made by the issuer of a retirement annuity policy acquired by Mohave County. (f) Any other payment option elected by the Participant and agreed to by Mohave County and Administrator, provided that such option must provide for substantially non-increasing payments for any period after the latest benefit commencement date under Section 7.01. Participant's or Beneficiary's election of a payment option must be made at least 30 days before the payment of benefits is to commence. If a Participant or Beneficiary fails to make a timely election of a payment option, benefits shall be paid monthly under option (c) above for a period of five years. . . . 7.03 Limitation on Options: No payment option may be selected by a Participant or Beneficiary under Sections 7.02, 7.04, or 7.05 unless it satisfies the requirements of Sections 401(a)(9) and 457(d)(2) of the Code, including that payments commencing before the death of the Participant shall satisfy the incidental death benefits requirement under section 457(d)(2)(B)(i)(1). Unless otherwise elected by the Participant, all determinations under Section 401 (a) (9) shall be made without recalculation of life expectancies. 7.04 Post-Retirement Death Benefits: (a) Should the Participant die after he has begun to receive benefits under a payment option, the remaining payments, if any, under the payment option shall be payable to the Participant's Beneficiary within the 30 day period commencing with the 61st day after the Participant's death, unless the Beneficiary elects payment under a different payment option that is available under Section 7.02 wi thin 60 days of the Participant's death. Any different payment option elected by a Beneficiary under this section must provide for payments at a rate that is at least as rapid under the payment option that was applicable to the Participant. In no event shall Mohave County or Administrator be liable to the Beneficiary for the amount of any payment made in the name of the Participant before the Administrator receives proof of death of the Participant. (b) If the designated Beneficiary does not continue to live for the remaining period of payments under the payment option, then the commuted value of any remaining payments under the payment option shall be paid in a lump sum to the estate of the Beneficiary. In the event that the Participant's estate is the Beneficiary, the commuted value of any remaining payments under the payment option shall be paid to the estate in.a lump sum. 7.05 Pre-retirement Death Benefits: (a) Should the Participant die before he has begun to receive the benefits provided by Section 7.01, the value of the Participant's Account shall be payable to the Beneficiary commencing wi thin the 30-day period commencing on the 91st day after the Participant's death, unless the Beneficiary elects a different fixed or determinable benefit commencement date wi thin 90 days of the Participant's death. Such benefit commencement date shall be not later than the later of (i) December 31 of the year following the year of'the Participant's death, or (ii) of the Beneficiary is the Participant's spouse, December 31 of the year in which the Participant would have attained age 70~. (b) Unless a Beneficiary elects a different payment option prior to the benefit commencement date, death benefits under this Section shall be paid in approximately equal annual installments over five years, or over such shorter period as may be necessary to assure that the amount of any annual installment is not less than $3,500. A Beneficiary shall be treated as if he were a Participant for purposes of determining the payment options available under Section 7.02, provided, however, that the payment option chosen by the Beneficiary must provide for payments to the Beneficiary over a period no longer than the life expectancy of . . . the Beneficiary, and provided that such period may not exceed (15) years if the Beneficiary is not the Participant's spouse. (c) In the event that the Beneficiary dies before the payment of death benefits has commenced or been completed, the remaining value of the Participant's Account shall be paid to the estate of the Beneficiary in a lump sum. In the event that the Participant's estate is the Beneficiary, payment shall be made to the estate in a lump sum. 7 . 06 Unforeseeable Emergencies: ( a) In the event an unforeseeable emergency occurs, a Participant may apply to Mohave County to receive that part of the value of his Account that is reasonably needed to satisfy the emergency need. If such an application is approved by Mohave County, the Participant shall be paid only such amount as Mohave County deems necessary to meet the emergency need, but payment shall not be made to the extent that the financial hardship may be relieved through cessation of deferral under the Plan, insurance or other reimbursement, or liquidation of other assets to the extent such liquidation would not itself cause severe financial hardship. ( b ) An unforeseeable emergency shall be deemed to involve only circumstances of severe financial hardship to the participant resulting from a sudden unexpected illness, accident, or disability of the Participant or of a dependent (as defined in section 152(a) of the Code) of the Participant, loss of the Participant's property due to casualty, or other similar and extraordinary unforeseeable circumstances arising as a result of events beyond the control of the Participant. The need to send a Participant's child to college or to purchase a new home shall not be considered unforeseeable emergencies. The determination as to whether such an unforeseeable emergency e?,ists shall be based on the merits of each individual case. 7.07 Transitional Rule for Pre-1989 Benefit Elections: In the event, prior to January 1, 1989, a Participant or Beneficiary has commenced receiving benefits under a payment option or has irrevocably elected a payment option or benefit commencement date, then that payment option or election shall remain in effect notwithstanding any other provision of the Plan. ARTICLE VIII. NON-ASSIGNABILITY 8.01 In General: Except as provided in Section 8.02, no Participant or Beneficiary shall have any right to commute, sell, assign, pledge, transfer or otherwise conveyor encumber the right to receive any payments hereunder, which payments and rights are expressly declared to be non-assignable and nontransferable. 8.02 Domestic Relations Orders: (a) Allowance of Transfers: To the extent required under final judgement, decree, or order ( including approval of a property settlement agreement) made pursuant to a state domestic relations law, any portion of a Participant's Account may be paid or set aside for payment to a spouse, former spouse, or child of the Participant. Where . necessary to carry out the terms of such an order, a separate Account shall be established with respect to the spouse, former spouse, or child who shall be entitled to make investment selections with respect thereto in the same manner as the Participant; any amount so set aside for a spouse, former spouse, or child shall be paid out in a lump sum at the earliest date that benefits may be paid to the Participant, unless the order directs a different time or form of payment. Nothing in this Section shall be construed to authorize any amount to be distributed under the Plan at a time or in a form that is not permitted under Section 457 of the Code. Any Payment made to a person other than the Participant pursuant to this Section shall be reduced by required income tax withholding; the fact that payment is made to a person other than the Participant may not prevent such payment from being includible in the gross income of the Participant for withholding and income tax reporting purposes. . ( b ) Release from Liability to Participant: Mohave County's liability to pay benefits to a Participant shall be reduced to the extent that amounts have been paid or set aside for payment to a spouse, former spouse, or child pursuant to paragraph (a) of the Section. No such transfer shall be effectuated unless Mohave County or Administrator has been provided with satisfactory evidence that Mohave County and the Administrator are released from any further claim by the participant with respect to such amounts. The Participant shall be deemed to have released Mohave County and the Administrator from any claim with respect to such amounts, in any case in which (i) Mohave County or Administrator has been served with legal process or otherwise joined in a proceeding relating to such transfer, (ii) the Participant has been notified of the pendency of such proceeding in the manner prescribed by the law of the jurisdiction in whic~ the proceeding is pending for service of process in such action or by mail from Mohave County or Administrator to the Participant's last known mailing address, and ( iii ) the Participant fails to obtain an order of the court in the proceeding relieving Mohave County or Administrator from the obligation to comply with the judgment, decree, or order. . (c) Participation in Legal proceedings: Mohave County and Administrator shall not be obligated to defend against or set aside any judgement, decree, or order described in paragraph (a) any legal order relating to the garnishment of a Participant's benefits, unless the full expense of such legal action is borne by the Participant. In the event that the Participant's action (or inaction) nonetheless causes Mohave County or Administrator to incur such expense, the amount of the expense may be charged against the Participant's Account and thereby reduce Mohave County's obligation to pay benefits to the Participant. In the course of any proceeding relating to divorce, separation, or child support, Mohave County and Administrator shall be authorized to disclose information relating to the Participant's Account to the Participant's spouse, former spouse, or child (including the legal representatives of the spouse, former spouse, or child), or to a court. . . . ARTICLE IX. RELATIONSHIP TO OTHER PLANS AND EMPLOYMENT AGREEMENTS The plan serves in addition to any other retirement, pension, or benefit plan or system presently in existence or hereinafter established for the benefit of Mohave County's employees, and participation hereunder shall not affect benefits receivable under any such plan or system. Nothing contained in this Plan shall be deemed to constitute an employment contract or agreement between any Participant and Mohave County or to give any participant the right to be retained in the employ of Mohave County. Nor shall anything herein be construed to modify the terms of any employment contract or agreement between a Participant and Mohave County. ARTICLE X. AMENDMENT OR TERMINATION OF PLAN Mohave County may at any time amend this plan provided that it transmits such amendment in writing to the Administrator at least 30 days prior to the effective date of the amendment. The consent of the Administrator shall not be required in order for such amendment to become effective, but the Administrator shall be under no obligation to continue acting as Administrator hereunder if it disapproves of such amendment. Mohave County may at any time terminate this Plan. The Administrator may at any time propose an amendment to the Plan by an instrument in writing transmitted to Mohave County at least 30 days before the effective date of the amendment. Such amendment shall become effective unless, within such 30 day period, Mohave County notifies the Administrator in writing that it disapproves such amendment, in which case such amendment shall not become effective. In the event of such disapproval, the Administrator shall be under no obligation to co~tinue acting as Administrator hereunder. If this Plan document constitutes an amendment and restatement of the Plan as previously adopted by Mohave County, the amendments contained herein shall become effective on January 1, 1993, and the terms of the preceding Plan document shall remain in effect through December 31, 1993. Except as may be required to maintain the status of the Plan as an eligible deferred compensation plan under section 457 of the Code or to comply with other applicable laws, no amendment or termination of the Plan shall divest any Participant of any rights with respect to compensation deferred before the date of the amendment or termination. ARTICLE XI. APPLICABLE LAW The Plan shall be construed under the laws of the state where Mohave County is located and is established with the intent that it meet the requirements of an "eligible deferred compensation plan" under Section 457 of the Code, as amended. The provisions of this Plan shall be interpreted wherever possible in conformity with the requirements of that section. . . . ARTICLE XII. GENDER AND NUMBER The masculine pronoun, whenever used herein, shall include the feminine pronoun, and the singular shall include the plural, except where the context requires otherwise. (~artha)ICMA/PLAN/DOCUMENT APPENDIX B . MOHAVE COUNTY ICMA PLAN DOCUMENT Declaration of leMA Retirement Trust . PERSONNEL AND RISK MANAGEMENT EFFECTIVE: JANUARY 1, 1993 . . . . ART!CLE I. NAME DEFINITIONS 1.1 Name: The Name of the Trust, as amended and restated Hereby, in the ICMA Retirement Trust. 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 provision of section 457 of the Internal Revenue Code of 1954, as amended. (c) Employees. Those employees who participate in Qualified Plans. (d) 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 or in connection with its Qualified Plan. (e) Guaranteed Investment Contract. A contract entered into by the Retirement Trust with insurance companies that provides for a guaranteed rate of return on investments made pursuant to such contract. (f) ICMA. The International City Management Association. (g) ICMA/RC Trustees. Those Trustees elected by the Public Employers who, in accordance with the provisions of Section 3.1(a) hereof, are also members, or former members, of the Board of Directors of ICMA or RC. (h) Investment Adviser. The Investment Adviser that enters into a contract with the Retirement Trust to provide advice with respect to investment of the Trust Property. (i) Portfolios. The Portfolios of investment established by the Investment Adviser to the Retirement Trust, under the supervision of the Trustees, for the purpose of providing investments for the Trust Property. (j) Public Employee Trustees. Those Trustees elected by the Public Employers who, in accordance with the provision of Section 3.1 (a) hereof, are full-time employees of Public Employers. (k) public Employer Trustees. Public Employers who serve as trustees of the Qualified Plans. . . . 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 IeMA/RC Trustee) as the person who has ceased to be a Trustee. An appointment of a Trustee may be made in anticipation of a vacancy to occur at a later date by reason of retirement or resignation, provided that such appointment shall not become effective prior to such retirement or resignation. Whenever a vacancy 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. 3.6 Trustees Serve 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 4.1 General Powers: The Trustees shall have the power to conduct the business of the Trust and to carryon its operations. Such power shall include, but shall not be limited to, the power to: (a) receive the Trust Property from the Public Employers, Public Employer Trustees or other 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 the 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 each Investment Adviser; (d) invest and reinvest the Trust Property in the Portfolios, the Guaranteed Interest Contracts and in any other investment recommended by the Investment Adviser, but not including securities issued by Public Employers, provided that if a Public Employer has directed that its monies be invested in specified Portfolios or in a Guaranteed Investment Contract, the Trustees of the Retirement Trust shall invest such monies in accordance with such directions; (e) keep such portion of the Trust Property in cash or cash balances as the Trustees, from time to time, may deem to be in the best interest of the Retirement Trust created hereby without liability for interest thereon; . . . (f) accept and retain for such time as they may deem advisable any securities or other property received or acquired by them as Trustees hereunder, whether or not such securities or other property would normally be purchased as investment hereunder; (g) cause any securities or other property held as part of the Trust Property to be registered in the name of the Retirement Trust or in the name of a nominee, and to hold any investment in bearer from, but the books and records of the Trustees shall at all times show that all such investments are a part of the Trust Property; (h) make, execute, acknowledge, and deliver any and all documents of transfer and conveyance and any and all other instruments that may be necessary or appropriate to carry out the powers herein granted; (i) vote upon any stock, bonds, or other securities; give general or special proxies or powers of attorney 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 to other changes effecting corporate securities, and delegate discretionary powers and pay any assessments or changes in 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, contracts with custodians and contracts for the provision of administrative services; (k) borrow or raise money for the purposes 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 shall 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 or any such borrowing; (1) incur reasonable expenses as required for the operation of the Retirement Trust and deduct such expenses from the Trust Property. (m) pay expenses properly allocatable to the Trust Property incurred in connection with the Deferred Compensation Plans. Qualified Plans, or Mohave County Trusts and deduct such expenses from the portion of the Trust Property to whom such expenses are properly allocatable; (n) payout the Trust Property all real and personal property taxes, income taxes and other taxes of any and all kinds which, in the opinion of the Trustees, are properly levied, or . . . assessed under existing or future laws upon, or in respect of, the Trust Property and allocate any such taxes to the appropriate accounts; (0) adopt, amend and repeal the By-Laws, provided that such By-Laws are at all times consistent with the terms of the Declaration of Trust; (p) employ persons to make available interest in the Retirement Trust to employers eligible to maintain a Deferred Compensation Plan under Section 457 or a Qualified Plan under Section 401 of the Internal Revenue code, as amended; (q) issue the Annual Report of the Retirement Trust, and the disclosure documents and other literature used by the Retirement Trust; (r) make loans, including the purchase of.debt obligations, provided that all such loans shall bear interest at the current market rate. (s) contract for, and delegate any powers granted hereunder to, such officers, agents, employees, auditors and attorneys as the Trustees may select, provided that the Trustees may not delegate the powers set forth in paragraphs (b), (c), and (0) of this Section 4.1 and may not delegate any powers if such delegations would violate their fiduciary duties; (t) provide Trustees of the insurance; for the indemnification Retirement Trust and of the Officers and purchase fiduciary (u) maintain books and records, including separate accounts for each Public Employer, Public Employer Trustee or Employer Trust and such additional separate accounts as are required under, and consistent with, the Deferred Compensation or Qualified plan of each Public Employer; and (v) do all such acts, take all such proceedings, 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. 4.2 Distribution of Trust Property: Distributions of the Trust property shall be made to, or on behalf of, the public Employer or Public Employer Trustee, in accordance with the terms of the Deferred Compensation Plans, Qualified Plans or Employer Trusts. The Trustees of the Retirement Trust shall be fully protected in making payments in accordance with the directions of the Public Employers, Public Employer Trustees or other Trustee of Mohave County Trusts without ascertaining whether such payments are in compliance with the provision of the Deferred Compensation or Qualified Plans, or the agreements creating Mohave County Trusts. 4.3 Execution designate any of Instruments: one or more of The the Trustees Trustees may unanimously to execute any . . . instrument or document on behalf of all, including but not limi ted to the signing 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. Otherwise, such actions and responsibilities are delegated to the officers of the Trust, or their designees. ARTICLE V. DUTY OF CARE AND LIABILITY OF TRUSTEES 5.1 Duty of Care: In exercising the powers herein before granted to the Trustees, the Trustees shall perform all acts within their authority for the exclusive purpose of providing benefi ts for the Public Employers in connection with Deferred Compensation Plans and Public Employer Trustees pursuant to Qualified Plans, 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. 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. 5.3 Bond: No Trustee shall be obligated to give any bond or other security for the performance of any of his or her duties hereunder. ARTICLE VI. ANNUAL REPORT TO SHAREHOLDERS The Trustees shall annually submit to the Public Employers and Public Employer Trustees a written report of the transactions of the Retirement Trust, including financial statements which shall be certified by independent public accountants chosen by the Trustees. ARTICLE VII. DURATION OR AMENDMENT OF RETIREMENT TRUST 7 .1 Wi thdrawal : A Public Employer or Public Employer Trustee may, at any time, withdraw from this Retirement Trust by delivering to the Board of Trustees a written statement of wi thdrawal. In such statement, the Public Employer or Public Employer Trustee shall acknowledge that the Trust Property allocatable to the Public Employer is derived from compensation deferred by employees of such Public Employer pursuant to its Deferred Compensation Plan or from contributions to the accounts of Employees pursuant to a Qualified Plan, and shall designate . . . the financial institution to which such property shall be transferred by the Trustees of the Retirement Trust or by the Trustee of Mohave County Trust. 7.2 Duration: The Retirement Trust shall continue until termination by the vote of a majority of the Public Employers, each casting one vote. Upon termination, all the Trust Property shall be paid out to the Public Employers. Public Employer Trustees or the Trustees of Mohave County Trusts, as appropriate. 7.3 Amendment: The Retirement Trust may be amended by the vote of a majority of the public Employers, each casting one vote. 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: (i) a majority of the Trustees so direct, or; (ii) a petition requesting a vote signed by not less than 25% of the Public Employers, is submitted to the Trustees. ARTICLE VIII. MISCELLANEOUS 8.1 Governing Law: Except as otherwise required by state of 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. 8.2 Counterparts: 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 of which together shall constitute one and the same instrument. <martha>lCMA!PLAN!DOC