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HomeMy WebLinkAbout2008-163A RESOLUTION OF TI COMMISSIONERS E OPEB TRUST AS PURSUANT TO Tl- COMPLIANCE hCOMPLIANCE WITH BOARD STATEMENT; COUNTY BOARD 01 BOARD OF TRUSTEE OF THE TRUSTEE; P THE DUTIES AND PO BOARD; PROVIDING PROVIDING FOR COI PROVIDING AN EFFE WHEREAS, Indian certain employee benefit r pensions (as more fully clef insurance and medical and County, County Constitution and, in certain cases, their eligible for coverage thereun RESOLUTION NO. 2008-163 E INDIAN RIVER COUNTY BOARD OF COUNTY ;TABLISHING THE INDIAN RIVER COUNTY AN IRREVOCABLE SECTION 115 TRUST E INTERNAL REVENUE CODE AND IN 3OVERNMENTAL ACCOUNTING STANDARDS 43 AND 45; ESTABLISHING THE INDIAN RIVER COUNTY COMMISSIONERS AS THE OPEB i; PROVIDING FOR THE DUTIES AND POWERS ROVIDING FOR DELEGATION OF CERTAIN OF VERS OF THE TRUSTEE TO THE OPEB TRUST FOR VARIOUS TERMS OF THE TRUST; FLICTS; PROVIDING FOR SEVERABILITY; AND ,TIVE DATE. iver County ("County") has established and maintains ns that provide post -employment benefits other than !d hereinafter, "Benefits"), such as but not limited to, life irescription drug coverage, to retired employees. of the Officers, and certain City of Vero Beach, FI employees, a.spective spouses, dependents and survivors, who are !r (collectively, "Beneficiaries"); WHEREAS, the Governmental Accounting Standards Board ("GASB") has issued GASB Statement 43 (j'GASB 43") and Statement 45 ("GASB 45") that establish standards for accounting and financial reporting for state and local governmental employers, such as the County, that offer Benefits to their retired employees; WHEREAS, the Cou that will be separate from Benefits with the intent tha income tax under Internal R be taxable to Beneficiaries; and (iv) all assets of the Ti used for the exclusive purr expenses of administering County ; WHEREAS, the C essential governmental fi Revenue Code; y desires to create and establish the irrevocable Trust, ie County, for the purpose of providing funds to pay for (i) the income of the Trust will be exempt from federal tenue Code Section 115; (ii) transfers to the Trust will not ) the Trust will qualify as a trust for purposes of GASB 43, st are and will be irrevocably dedicated to, and shall be se of, providing for payments of Benefits and for paying e Trust, and will not be available to any creditors of the provision of Benefits to Beneficiaries constitutes an within the meaning of Section 115(1) of the Internal WHEREAS Sections 115 and 671 of the Internal Revenue Code permit the County to establish a separate Trust that would serve as a vehicle for accumulating amounts needed to pay for Benefits; WHEREAS, the Trust established hereunder, either in whole or in part, shall not be used for, nor shall any of the income or other assets held under the terms of the 1 RESOLUTION NO. 2008-163 Trust be used for purposes other than the payment of Benefits to or on behalf of Beneficiaries under the employee benefit plans or the expenses incident thereto or expenses of the Trust; and WHEREAS, assets of the Trust shall be held by the Trustee at all times and the Trust assets shall not be considered funds or assets of the County for any purpose, other than financial reporting purposes under GAAP. NOW, THEREFORE,, BE IT RESOLVED BY THE INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSIONERS AS FOLLOWS: ARTICLE I DEFINITIONS SECTION 1.01. Definitions. As used in this Resolution, the following terms shall have the meanings hereinafter set out: (a) "Actuarial Accrued Liability" shall mean that portion of the actuarial present value of Trust obligations, as determined under a particular Actuarial Cost Method and related administrative expenses. (b) "Actuarial Cost Method" shall mean a method of determining the actuarial present value of the obligations and administrative expenses of the Trust, and for developing an actuarially equivalent allocation of the value to time periods. Acceptable actuarial methods include the aggregate, attained age, entry age, frozen attained age, frozen entry age, and projected unit credit methods. (c) "Actuarial Valuation" shall mean the determination, as of valuation date, of the normal cost, Actuarial Accrued Liability, actuarial value of assets, and related actuarial present values for the Trust. (d) "Administrative Expenses" shall mean all reasonable expenses incurred in the operation of the Trust, including all investment expenses. (e) "Annual Required Contribution" and "ARC" shall mean the amount that must be contributed in a given year to fully fund the Trust, as determined by the Actuarial Valuation in accordance with requirements of Generally Accepted Accounting Principles and all other such requirements under GASB 43 and GASB 45. This amount shall represent a level of funding that if paid on an ongoing basis is projected to cover the normal cost each year and amortize any Unfunded Actuarial Accrued Liabilities over a period not to exceed thirty (30) years. (f) "Beneficiaries" shall mean all retired employees of the County; County Constitutional Officers; and, pursuant to contract, certain City of Vero Beach, A employees, and, where applicable, their respective spouses, dependents and survivors, who meet the criteria for eligibility for Benefits. 2 RESOLUTION NO. 2008-163 (g) "Benefits" shall mean post -employment benefits paid pursuant to the Plan on behalf of Beneficiaries after an employee's separation from service, other than pension benefits. Depending on the specific provisions of the Plan, such benefits may include, but shall not necessarily be limited to, premiums for medical and prescription drugs expenses, Medicare Part B premiums, Medicare Advantage Plan ("MAP") premiums, and life insurance premiums. (h) "Board of County Commissioners" and "Board" shall mean the Indian River County Board of County Commissioners. (i) "Budget Director" shall mean the person holding the office of Indian River County Director of the Office of Management and Budget. The Budget Director is an employee of Indian River County. Q) "Clerk of Court" shall mean the person holding the office of Indian River County Clerk of Circuit Court and Comptroller, pursuant to Florida law. (k) "Code" means the Internal Revenue Code of 1986, as amended. (1) "County" shall mean the Indian River County, Florida, acting through its Board of County Commissioners. (m) "County Constitutional Officer" and "County Constitutional Officers" shall mean the persons holding the offices of Sheriff; Tax Collector; Property Appraiser; Supervisor of Elections; and Clerk of the Circuit Court pursuant to Article VIII, section 1(d) of the Constitution of the State of Florida. (n) "Finance Director" shall mean the person holding the office of Finance Director. Pursuant to applicable Florida law, the Finance Director is an employee of the Clerk of Court. (o) "Fiscal Year" shall mean October 1 of any year through September 30 of the following year. (p) "GASB" shall mean the Governmental Accounting Standards Board. (q) "Generally Accepted Accounting Principles" shall mean accounting principles generally accepted in the United States of America. (r ) "Human Resources Director" shall mean the person holding the office of Indian River County Human Resources Director. The Human Resources Director is an employee of Indian River County. (s) "Minimum Annual Payment" and "Pay-as-you-go' amount shall mean the annual amount paid by the County, if any, toward Benefits, that, when combined with the Trust assets, will provide sufficient funds to cover all Benefits and related Administrative Expenses for that Fiscal Year. 3 RESOLUTION NO. 2008-163 (t) "Obligations" shall mean those Administrative Expenses of the Trust and the cost of the ARC that are allocated to such valuation year by the Actuarial Cost Method used for the Trust. (u) "Other Post -Retirement Benefits," "OPEB" or 'Post -Retirement Health Care Benefits" means those benefits as addressed by GASB 43 and GASB 45, or any subsequent GASB statement that may be applicable to the Trust. (v) 'Plan" shall mean such defined benefit employee benefit plan or plans, that may be amended from time to time, for which Benefits are funded in whole or in part by the County under the Trust established hereunder. (w) "Trust' shall mean the Indian River County OPEB Trust created and set forth herein. (x) "Trust Administrator" shall mean the group known as the "OPEB Trust Board" that administers the day-to-day operation and management of the Trust. Pursuant to Section 2.06 hereof, the OPEB Trust Board has been created and appointed as the Trust Administrator. (y) "Trustee" shall mean the Indian River County Board of County Commissioners acting as the County OPEB Board of Trustees. (z) "Unfunded Actuarial Accrued Liability" shall mean for any Actuarial Valuation, the excess of the Actuarial Accrued Liability over the actuarial value of the assets of the Trust under an Actuarial Cost Method used by the Trust for funding purposes. ARTICLE II ESTABLISHMENT OF TRUST SECTION 2.01. Creation of Trust; Purpose. (a) The County OPEB Trust is hereby created for the sole purpose of providing funding for, and payment of, Benefits to Beneficiaries. The provision of Benefits to Beneficiaries constitutes an essential governmental function within the meaning of Section 115(1) of the Internal Revenue Code. The Trust is created as an irrevocable trust and in no event shall any part of the principal or income of the Trust be paid or revert to the County for any purpose whatsoever other than to pay or to provide reimbursement for eligible Benefit expenditures for the exclusive benefit of Beneficiaries, including Administrative Expenses. The Trust is created pursuant to the authority of Florida Statutes section 125.01 and other applicable law and shall constitute a governmental trust pursuant to Section 115 of the Code. The Trust may consist of the contributions from the County, all investments made or held under the Trust, and all income therefrom, both received and accrued, and any other property, that may be received or held by reason of the Trust. It is intended that the Trust shall be tax-exempt 4 RESOLUTION NO. 2008-163 and shall qualify as tax-free under Section 115(1) of the Code and any amendments of the Code applicable to trusts of such type. (b) No part of the net earnings of the Trust may inure to the benefit of any employee of the County or Beneficiary other than by Benefit payments or for Administrative Services. The assets of the Trust shall not be used for or diverted to purposes other than to provide the Benefits contemplated hereunder for the exclusive benefit of Beneficiaries, except any administrative expenses for which the Trust is liable as set forth herein. A portion of net earnings may be used for payment of reasonable and necessary professional services, costs, and expenses related to assisting the Trustee in the operation of the Trust. (c) All income, profits, recoveries, contributions, forfeitures and any and all monies, securities and properties of any kind at any time received or held by the Trustee hereunder, shall become part of the Trust when received, and shall be held for the use and purposes thereof and hereof. (d) The County shall not be liable for payment to the Trust of any amount other than those contemplated by this Resolution. Neither the County nor any Beneficiary or Trustee shall be liable for any debts, liabilities, or obligations of the Trust except as provided in this Resolution. SECTION 2.02. Irrevocability. The Section 115 governmental trust established herein shall be irrevocable and shall conform to all applicable sections of the Code and all statutes, ordinances, rules, regulations, and judicial decisions interpreting the foregoing provisions. This Resolution shall be interpreted in a manner consistent with such intent and the intention of the County that the Trust hereunder satisfies the requirements of GASB 43 and GASB 45. SECTION 2.03. Exclusive Benefit. Except as provided under applicable law, no part of the corpus or income of the Trust may be used for, or diverted to, any purpose other than for the exclusive benefit of Beneficiaries under any Plan prior to the satisfaction of all liabilities of the Plan with respect to all Beneficiaries and payment of all Administrative Expenses. SECTION 2.04. No Right of Reversion; Return of Contributions. (a) Except as provided in subsection (b) below, neither the County nor the Trustee shall have any right,, title, interest, claim or demand whatsoever in or to the funds held by the Trust, other than the right to a proper application thereof and accounting therefor as provided herein, nor shall any funds ever revert back to the County or the Trustee prior to the satisfaction of all liabilities of the Plan with respect to all Beneficiaries and payment of all Administrative Expenses. (b) Notwithstanding any other provisions of this Resolution, if and to the extent permitted by the Code and other applicable laws and regulations thereunder and by GASB 43 and GASB 45, upon the County's request, a contribution that is deposited 5 RESOLUTION NO. 2008-163 into the Trust by a mistake in fact shall be returned by the Trustee to the County within a reasonable period of time. SECTION 2.05. Spendthrift Provision. All assets, income, and distributions of the Trust shall be protected against the claims of creditors of the County and Beneficiaries, and shall not be subject to execution, attachment, garnishment, the operation of bankruptcy, the insolvency laws or other process whatsoever, nor shall any assignment thereof be enforceable in any court. SECTION 2.06. Named Fiduciary. (a) The Trustee shall be the fiduciary for the Trust fund and shall have the power to delegate responsibilities under this Resolution. Such delegations may be to officers and employees of the County or Clerk of Court, or to other individuals or organizations, including an actuary or a third -party administrator or recordkeeper, all of whom shall hold those delegations at the pleasure of the Trustee. Any employee of the County, and any employee of the Clerk of Court, who already receives full-time pay, and to whom such fiduciary responsibilities are delegated, shall serve without additional compensation. The Trustee hereby creates the OPEB Trust Board, and designates the following as the sole members: Clerk of Court, Budget Director; Finance Director; the County Administrator or Assistant County Administrator; and the Human Resources Director. The OPEB Trust Board meetings shall be attended by the members thereof; such members must be present and may not be represented by any designee of any such member; provided, however, such members may designate one or more individuals of each such member's respective department as additional attendees of OPEB Trust Board meetings. The Trustee hereby appoints the OPEB Trust Board as the Trust Administrator, and delegates to the OPEB Trust Board all powers, rights, and responsibilities as set forth in, and limited by, this Resolution. (b) In the event that there is a vacancy in the position of any member of the OPEB Trust Board, the following shall apply: (i) the Clerk of Court may appoint a Clerk of Court employee as a substitute for either the Clerk of Court or the Finance Director; and (ii) the Trustee, acting by and through the County Administrator, shall designate a County employee as a substitute for either the Budget Director or the Human Resources Director. Any substitute member of the OPEB Trust Board appointed as aforementioned shall be a full member of the OPEB Trust Board for the duration of such appointment; provided, however, that contemporaneously with any appointment of a substitute, the Clerk of Court or the Trustee acting by and through the County Administrator, as applicable, shall file a written notice of such appointment with the Trustee and the secretary to the OPEB Trust Board. SECTION 2.07. Segregation of Assets. Assets under the Trust may be segregated for investment purposes. No individual account for any Beneficiary will be maintained at any time under the Trust and no Beneficiary will have any right or title with respect to any specific assets of the Trust. Accordingly, no Beneficiary will have a preferred claim, lien on, security interest in, or any beneficial interest in, any particular assets of the Trust. Beneficiaries will be entitled to receive payments of assets of the 6 RESOLUTION No. 2008-163 Trust (or have such assets paid on behalf of such Beneficiaries) only when, as and if determined by the Trustee in accordance with this Resolution. SECTION 2.08. County Contributions. In its sole discretion, the County from time to time and at any time may make (or cause to be made) contributions of cash or other assets acceptable to the .Trustee to the Trust, from employer or employee contributions or any other legally available source of funds. Neither the Trustee nor any Beneficiary nor any other person or entity shall have the right to compel such contributions. All such contributions and all income thereon are irrevocably dedicated to, and shall only be used for, those purposes authorized in this Resolution. The County shall develop the Minimum Annual Payment as part of its budget each year. The County's performance and obligation to make contributions to the Trust is contingent upon an annual appropriation for such purpose by the Indian River County Board of County Commissioners. SECTION 2.09. Termination of Contributions. The County has established the Trust with the bona fide intention and expectation that from year to year the County will be able to and will deem it advisable to make its contributions as herein provided. However, the County reserves the right to fund the Benefits on a "Pay-as-you-go" basis and recognizes that circumstances not now foreseen or circumstances beyond the County's control may make it either impossible or inadvisable to continue to make the County's contributions as.herein provided. In the event the County determines that it is impossible or inadvisable for the County to continue to make its contributions as herein provided, the County shall have the right to suspend or terminate its contributions. In the event of complete termination of contributions by the County, the County, with or without formal action by the Board, shall make no further contributions to the Trust, the Trust shall remain in existence, and other than the provisions for contributions by the County, all the provisions of the Trust which are necessary in the opinion of the Trustee shall remain in force. SECTION 2.10. Expenses of Administration. All Administrative Expenses shall be paid out of the assets of the Trust. ARTICLE III DUTIES AND POWERS OF THE TRUSTEE SECTION 3.01. Creation of Board of Trustees. A board of trustees for the Trust is hereby created and such board shall be known as the County OPEB Board of Trustees (the "Trustee"). Such board of trustees shall be comprised of the then current members of the Indian River County Board of County Commissioners and shall meet as the County OPEB Board of Trustees at least once each year. The Chairman of the Board of County Commissioners shall serve as chairman of the Trustee and the Clerk of Court, by and through a Deputy Clerk, in accordance with applicable Florida law, shall serve as recording clerk to the Trustee (herein "Deputy Clerk") . The Deputy Clerk shall keep a complete minute book of the actions, proceedings, or hearings of the 7 RESOLUTION NO. 2008-163 Trustee. To the extent allowed or required by the Code, and other applicable federal, Florida, or local law, the Trustee shall be a separate legal entity with all powers and responsibilities conferred upon it by law including the power to bring and defend lawsuits of every kind, nature and description. The Trustee is hereby authorized to make and adopt such reasonable rules and regulations as may be necessary or convenient to carry out the duties of the Trustee hereunder and the activities of the Trust. The Trustee hereby authorizes the OPEB Trust Board to perform, and delegates to the OPEB Trust Board certain of the responsibilities of day to day administration of the County OPEB Trust on behalf of the Trustee, as more specifically set forth in this Resolution. SECTION 3.02. Administration of Trust. (a) The Trust shall be administered for the benefit of all Beneficiaries as herein provided, without discrimination in favor of one or some Beneficiaries as against one or some other Beneficiaries. Nothing contained in this Resolution or the Plan shall constitute a guarantee that Trust assets will be sufficient to pay any Benefits to any particular Beneficiary. (b) Whenever action is required by the Trustee hereunder, the same may be taken by the OPEB Trust Board as Trust Administrator, solely to the extent of those powers specifically delegated to the OPEB Trust Board as Trust Administrator in this Resolution, as delegated agent for that purpose by Trustee. The OPEB Trust Board shall provide quarterly reports to the Trustee. The Trustee shall be entitled to rely upon information or instructions received from the OPEB Trust Board as Trust Administrator as agent of the County . Any information or instruction from the County to the OPEB Trust Board as Trust Administrator or to the Trustee shall be in writing and shall be effective upon delivery to the OPEB Trust Board as Trust Administrator or Trustee, as applicable. (c) The Trustee shall be under no duty or responsibility to inquire into the acts or omissions of the County, nor shall the Trustee have any liability therefor. Should it become necessary to perform some act hereunder and there is neither direction in this Resolution nor information nor instructions from the County on file with the Trustee, or OPEB Trust Board as Trust Administrator, as applicable, relating thereto, and such information or instructions cannot be obtained after reasonable inquiry, the OPEB Trust Board as Trust Administrator shall have full power and authority to act in their discretion, consistently with the purpose of the Trust and this Resolution and as specifically delegated in this Resolution; and in so acting or in following any instructions from the County, the OPEB Trust Board as Trust Administrator shall be fully protected and shall be absolved from all liability provided the OPEB Trust Board as Trust Administrator discharges its duties with the care, skill, and caution under the circumstances then prevailing which a prudent person, acting in a like capacity and familiar with those matters, would use in the conduct of an activity of like character and purpose. M RESOLUTION NO. 2008-163 (d) The duties, powers and responsibilities of the Trustee shall be limited as specifically provided herein. No person serving as a Trustee or as a member of the OPEB Trust Board as Trust Administrator hereunder shall be liable or responsible to anyone for any matter or thing whatsoever, provided only that the Trustee and the members of the OPEB Trust Board as Trust Administrator has met the prudent person standard as described above. (e) The Trustee and the OPEB Trust Board as Trust Administrator, as applicable in performing any act hereunder, shall be entitled to rely upon any affidavit, certificate, letter, notice, telegram or other paper or document believed by the Trustee and the OPEB Trust Board as Trust Administrator, as applicable to be genuine and upon any information or evidence believed by the Trustee and the OPEB Trust Board as Trust Administrator, as applicable to be sufficient; and the Trustee shall be protected in all payments hereunder if made in good faith and without actual knowledge of the happening of an event or a change in conditions which would affect such payments. (f) Neither the Trustee nor the OPEB Trust Board as Trust Administrator shall take any action nor make any determination inconsistent with any qualification or ruling of the Internal Revenue Service, an arbitrator or the courts with respect to the Trust. In the case of amendments to the Code or changes of regulations by the Internal Revenue Service or other governmental agency, the Trustee is empowered to take all necessary actions authorized by this Resolution, federal and state law and regulations, to continue the qualification of the Trust as a Code Section 115 Trust. (g) The Trustee shall discharge its duties with respect to the Trust solely in the interest of the Beneficiaries for the exclusive purpose of providing Benefits to Beneficiaries and paying Administrative Expenses of the Trust. SECTION 3.03. Powers of the Trustee Delegation of Certain Powers to OPEB Trust Board as Trust Administrator. Subject only to such instructions, rules, and restrictions as may from time to time be adopted by the County, the Trustee shall have the powers and rights set forth below, and the powers and rights contained in subsections 3.03 (a); (b); (c); (g); and (i), all of which are hereby delegated to the OPEB Trust Board as Trust Administrator; provided however, that the Trustee hereby reserves unto itself, and specifically does not delegate to the OPEB Trust Board as Trust Administrator, those powers of the Trustee that are contained in subsections 3.03 (d); (e); (f); (h); and 0); and further provided, that the Trustee hereby reserves unto itself, and specifically does not delegate to the OPEB Trust Board as Trust Administrator, those powers of the Trustee that are invested in the Trustee by law. (a) Administrative Powers. The Trustee shall receive, hold, invest and reinvest contributions to the Trust and shall make disbursements from the Trust pursuant to applicable provisions of this Resolution and any Plan. Financial reporting for the Trust shall be in conformance with Generally Accepted Accounting Principles. (b) Investment Powers. The Trustee shall have the power to hold, manage, and control the assets of the Trust during the continuance of the Trust. The Trustee 9 RESOLUTION NO. 2008-163 shall have full power without any court order to sell, exchange, hold, control, invest and reinvest the same in such manner and upon such terms as the Trustee deems best, including (without limitation of these powers) the power to purchase shares in investment trusts and stock in investment corporations, irrespective of any statutes or rules or practices of courts now or hereafter in force limiting the investments of trust companies or trustees generally. The Trustee shall adopt an investment policy and shall invest the assets of the Trust in accordance with such investment policy, which policy may be amended from time to time. The OPEB Trust Board as Trust Administrator shall coordinate with the Clerk of Court Investment Committee for professional advice with respect to the investments of the Trust. The Trustee is authorized to hold cash uninvested at any time. No purchaser from the Trustee need see to the application of the purchase money to the purposes of the Trust, but the receipt of the Trustee shall be a complete discharge to any such person. No individual members of the Trustee, or their designees, shall be personally liable upon any contract of, indebtedness of, or claim against, the Trust, executed under the provisions of this Resolution. The Trustee hereby declares its intent that assets of the Trust shall be held by a third -party custodian, and such declaration is binding on the OPEB Trust Board as Trust Administrator. The Trustee hereby delegates to the Clerk of Court the authority to contract with such third -party custodian. (c) Voting and Related Powers. The Trustee shall vote any stocks, bonds, or other securities, to give general or special powers of attorney with or without power of substitution; to exercise any conversion privileges, subscription rights or other options and to make any payments incidental thereto; to consent to or otherwise participate in corporate reorganizations or other changes affecting corporate securities and to delegate discretionary powers and to pay any assessments or charges in connection therewith; and generally to exercise any of the powers of an owner with respect to stocks, bonds, securities or other property held in the Trust. (d) Claims by or Against the Trust. The Trustee shall determine whether to sue or defend in any suit or legal proceedings by or against the Trust. The Trustee shall have full power in the Trustee's discretion to compound, settle, compromise, and adjust all claims and demands in favor of or against the Trust upon such terms as the Trustee may deem best. The Trustee may commence or defend legal or administrative proceedings and represent the Trust in all legal and administrative proceedings. In the administration of the Trust, the Trustee shall not be obligated to take any action that may subject the Trustee to any expense or liability unless the Trustee is first indemnified to the Trustee's satisfaction for all expenses and liabilities that the Trustee may incur in connection with such action. The assets of the Trust shall not be subject to the claims of any creditors of the County. (e) Employment of Agents. The Trustee shall employ such agents, attorneys - in -fact, experts, actuaries, accountants, investment advisors, brokers and investment and legal counsel, as it deems necessary and may delegate discretionary powers to or to rely upon information or advice furnished by such agents, attorneys -in -fact, experts or counsel. 10 RESOLUTION NO. 2008-163 (f) Execution of Instruments. The Chairman of the Board of County Commissioners, on behalf of the Trustee, shall execute 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, and to perform any and all acts that may be necessary or convenient in the proper administration of the Trust. The Trustee shall complete and provide to Beneficiaries and to the appropriate governmental agencies any reports as may be required by the Code, applicable federal, state, or local law. (g) Necessary Acts. The Trustee shall do all acts whether or not expressly authorized that may be necessary or proper for the protection of the property held hereunder or for the carrying out of any duty under this Resolution. (h) Holding of Trust Assets. All the assets in the Trust shall be held collectively for the benefit of all the Beneficiaries with no physical division thereof until such time as distribution is actually made by the Trustee. (i) Disbursements. The Trustee shall have the power to make disbursements for the payment of Benefits under the Plan and for the payment of Administrative Expenses. 0) Retention of Disputed Funds, The Trustee shall have the power to retain any funds or property subject to dispute without liability for the payment of interest; and to decline to make payment or delivery of the funds or property until final adjudication is made by a court of competent jurisdiction. SECTION 3.04. No Bond Required. Neither the Trustee nor any of its members, nor any member of the OPEB Trust Board as Trust Administrator shall be required to furnish any bond or other security for the faithful performance of its respective duties hereunder. SECTION 3.05. Accounts. The Trustee shall keep accurate and detailed accounts of all investments, receipts and disbursements and other transactions hereunder, and all accounts, books and records relating thereto shall be open to inspection by any person designated by the County at all reasonable times. Not later than one hundred twenty (120) days after the end of each fiscal year of the Trust, excluding Fiscal year 2007-2008, the OPEB Trust Board as Trust Administrator shall file with the Trustees a written report setting forth all investments, receipts, disbursements, and other transactions effected by the Trustee from the date of the prior such report to the close of such fiscal year. Such report shall contain an exact description and market value of all securities and investments held at the close of such fiscal year and the cost of each item thereof, as carried on the books of the Trustee. The financial records of the Trust shall be subject to the annual audit of the County as required by Florida law. RESOLUTION N0. 2008-163 ARTICLE IV AMENDMENT OR TERMINATION OF TRUST SECTION 4.01. Amendments. The Trustee reserves the right, by action of the Indian River County Board of County Commissioners, acting as the County OPEB Board of Trustees, to amend the Trust at any time, but no such amendment shall cause or permit any portion of the corpus or income of the Trust to revert to or become the property of or be used for the benefit of the County or shall conflict with the terms of the Plan or shall make the Trust revocable prior to the satisfaction of all liabilities of the Plan with respect to all Beneficiaries and payment of all Administrative Expenses. Any amendment that is necessary to bring the Trust into conformity with government laws or regulations in order to qualify the Trust under GASB 43 and GASB 45 shall be made and applied retroactively, nunc pro tunc. Copies of all amendments and/or separate documents relating to the Trust or the Benefits provided under the Trust shall be provided to the OPEB Trust Board as Trust Administrator. SECTION 4.02 Termination of Trust. In the event that (i) the County's contributions to the Trust have been terminated completely in accordance with the provisions of Section 2.09 hereof and (ii) all assets of the Trust have been distributed in accordance with the purposes of this Resolution, the Indian River County Board of County Commissioners shall also. have the power to terminate the Trust completely by appropriate resolutions specifying the date of such termination. All of the assets in the Trust on the date specified in such resolutions shall be held, administered, and distributed by the Trustee in the manner provided herein until all obligations under the Plan have been discharged and satisfied or all funds have been paid out. Until all assets of the Trust are distributed, the Trust shall continue and this Resolution shall remain in effect. In the event that assets of the Trust remain after (a) the termination of the Trust; (b) the satisfaction of all liabilities and obligations of the Plan with respect to each and every Beneficiary; and (c) payment of all Administrative Expenses, any such remaining assets may be returned to the County . ARTICLE V MISCELLANEOUS SECTION 5.01. Rights of Beneficiaries. Neither this Resolution nor the Trust shall give any Beneficiary any right to be retained for employment by the County or any right or claim to any Benefits hereunder. The adoption and maintenance of the Trust shall not be deemed to constitute a contract between the County and any retired County employee; the County and any retired County Constitutional Officer; or the County and any Beneficiary, or to be a consideration for, inducement to, or condition of, employment of any such person. If a retired employee is rehired by the County, nothing herein contained shall be construed to give any such employee the right to be retained in the employ of the County or to interfere with the right to terminate the re-employment of any 12 RESOLUTION N0. 2008-163 employee at any time with or without cause. Any Benefit payments to Beneficiaries hereunder shall be -limited to the extent provided herein. SECTION 5.02 Limited, Indemnification by Beneficiaries. If any Beneficiary receives one or more payments or reimbursements under the Trust that are not specifically. for Benefits, such Beneficiary shall indemnify and reimburse the County for any liability the County may incur.for failure to withhold federal or state income tax or Social Security tax from such payments or reimbursements; provided, however, such indemnification and reimbursement shall not exceed the amount of additional federal and state income tax that the Beneficiary would have owed if the payments or reimbursements had been made to the Beneficiary as regular cash compensation, plus the Beneficiary's share of any Social Security tax that would have been paid on such compensation, less any such additional income and Social Security tax actually paid by the Beneficiary. Whenever payments have been made by the Trust with respect to Benefits in a total amount, that is in excess of the maximum amount of payment necessary at that time to satisfy the intent of any coordination of benefits provision in the Trust, or the Beneficiary does not make voluntary payment under the provisions hereunder within 30 days after notification thereof, the Trustee shall have the right to recover such payments, to the extent of such excess, from any persons to, or for, or with respect to whom such payments were made; from any future payments due to the Beneficiary from the Trust; or from any other organization as the Trustee shall determine. SECTION 5.03. Defense of Trust. The County or the Trustee shall have the right to defend the position of the Trust created hereunder as tax-free under Section 115(1) of the Code. SECTION 5.04. Accrued and Undistributed Income. Upon the death of any Beneficiary for whom a benefit is held or a share of the Trust allocated, any accrued or undistributed net income with respect thereto shall be held and accounted for or distributed in the same manner as if it had been accrued or received after the death of such Beneficiary. SECTION 5.05. Inspection of Records. The financial records of the Trustee with respect to the Trust shall be open at all reasonable times for inspection by the County and all Beneficiaries and in the event of the incapacity or minority of a then -current Beneficiary, by that Beneficiary's guardian, conservator, or custodian of the estate. SECTION 5.06. Prohibition on Assignment. No Benefit shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge, and any attempt to do so shall be void. No Benefit shall in any manner be liable for, or subject to, the debts, contracts, liabilities, engagements or torts of any person. SECTION 5.07. Subrogation. In the event that Benefits are paid hereunder to or for a Beneficiary, the Trust shall be subrogated to any and all rights of recovery of such Beneficiary against a third party. The Trust's right of subrogation shall only become 13 RESOLUTION N0. 2008-163 operative if the Beneficiary receives payment from the third party and shall be limited to the dollar amount previously paid by the Trust for said Benefits. SECTION 5.08. No Vested Rights. Neither this Resolution nor this Trust creates any vested rights of any kind. No Beneficiary, nor any person claiming through him, shall have any right, title or interest in or through the Trust, or any part thereof. SECTION 5.09. Severability. If any one or more of the covenants, agreements or provisions of this Resolution shall be held contrary to any express provision of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements or provisions shall be. null and void and shall be deemed separable from the remaining covenants, agreements and provisions of this Resolution and shall in no way affect the validity of any of the other covenants, agreements or provisions hereof or of the Trust established hereunder. SECTION 5.10. Section Headings. The headings of the various. articles, sections and subsections of this Resolution are used solely as a matter of convenience and in no way define, modify or limit the scope or intent of any provision of this Resolution. SECTION 5.11. Interpretation. Where used in this Resolution, the masculine gender includes the feminine and the plural form includes the singular. SECTION 5.12. Tax Effects. Neither the County, its officers or representatives, nor the Trustee, its officers or representatives, nor the members of OPEB Trust Board as Trust Administrator, make any warranty or other representation as to whether any payments made to any Beneficiaries will be treated as includible in gross income for federal or state income tax purposes of such Beneficiaries. SECTION 5.13. Repeal of Inconsistent Resolutions. All resolutions or parts thereof in conflict herewith are hereby superseded and repealed to the extent of such conflict. SECTION 5.14. Effective Date. This Resolution shall take effect immediately upon its adoption. [remainder of page intentionally blank] 14 RESOLUTION 2008-163 This Resolution was moved for adoption by Commissioner Joseph E. Flescher and the motion was seconded by Commissioner Peter D. O' Bryan and, upon being put to a vote, the vote was as follows: Chairman Sandra L. Bowden Absent Vice Chairman Wesley S. Davis Aye Commissioner Joseph E. Flescher Aye Commissioner Peter D. O'Bryan Aye Commissioner Gary C. Wheeler Absent ,Ulrtiiiff The Chairman thereupon declared the Resolution duly 23rd day of September, 2008. 11 INDIAN 3WER CO Y.,6 u^ Wesley S. Davis, Vice;C p.irrnar�:.••` ATTEST: J. K. Barton, Clerk >' " (SEAL) App rov as to form and legal sufficiency: By Mpffian E. Fell, Senior Assista County Attorney 15