INVESTMENT ADVISORY AGREEMENT
THIS INVESTMENT ADVISORY AGREEMENT is made on the Effective Date identified below by and between Financial Telesis Inc. (“Advisor”), represented by W. Michael Montgomery, AIF, CLU, CFS, TGPC, an investment advisor representative, and the entity shown on Appendix A attached hereto (“Client”), with reference to the following: Client sponsors and maintains a Defined Contribution retirement plan (" 401(a) Plan"), pursuant to section 401(a) of the Internal Revenue Code of 1986, as amended, and a Deferred Compensation Plan (“457(b) Plan”), pursuant to IRC Section 457(b), which are not subject to the Employee Retirement Income Security Act of 1974 (“ERISA”). Client has the power and authority to designate and direct investment alternatives under the terms of the Plan and to enter into contractual arrangements with third parties to assist in the discharge of these and related duties. The type of Plan is specified on Appendix A.
Advisor is a registered investment advisor under the Investment Advisers Act of 1940, as amended (the “Act”), and will render advisory services under this Agreement through its employees and employees of Financial Telesis Inc. who are registered as advisory representatives of Advisor (“registered employees”), including investment advisory services to defined benefit plans, defined contribution plans, or both.
In connection with and in discharge of its duties with respect to the Plan, Client desires to engage the services of Advisor for the purposes specifically set forth below.
NOW, THEREFORE, in consideration of the following mutual promises and covenants, Client and Advisor agree as follows:
1. Advisory Services
Advisor shall provide the services selected by Client on Appendix A. Such services are described below.
a. Preparation of Investment Policy Statement. The Advisor will prepare or revise an investment policy statement (“IPS”) for the Plan based upon consultation with the Client to ascertain the Client’s investment objectives, policies, and constraints and will assist Client in developing a policy and IPS that is consistent with accepted fiduciary practices. The Advisor provides no assurances that the Client will achieve the investment objectives in the IPS.
b. Review of Fiduciary Practices. Advisor will conduct a review of current investment fiduciary practices based upon consultation with Client and review of materials provided by Client, and will prepare a written report for Client.
c. Plan Design Consultation. Advisor will assist Client with the design of plan provisions pursuant to Client objectives. Advisor does not provide legal advice and recommends that Client also engage the services of a qualified retirement plan attorney for the purpose of plan design and document creation. d. Assistance with Plan Investment Committee Charter. Advisor will advise and assist with the
creation or revision of a charter for the Plan Investment Committee and/ or Board.
e. Fiduciary Due Diligence Notebook. Advisor will create a notebook to assist with the organization of various fiduciary practices and materials.
f. Fiduciary File Cabinet. Advisor will create a secured online account for archiving and retrieval of various plan related documents.
g. Fee Benchmarking and Cost Reduction Initiatives. Advisor will prepare a Total Cost Analysis report at least annually to compare investment and service fees to industry benchmarks for services of similar quality, and from time to time, to alternative providers. Advisor will also recommend various contract, fund and/or process initiatives to manage fees levels.
h. Quarterly Performance Monitoring of Investment Manager(s). Advisor will perform quarterly monitoring of investment manager(s) or investments in accordance with the IPS guidelines to ensure compliance. The investment manager(s) or investments will be evaluated according to the established guidelines as outlined in the IPS and investment portfolio characteristics, performance of duties, and
i. Performance Reports and Investment Recommendations. The Advisor will prepare reports evaluating the performance of Plan investment manager(s) or investments, as the case may be, as well as comparing the performance thereof to benchmarks set forth in the IPS. The information used to generate the reports will be derived from statements provided by the Client. The Advisor will recommend, for selection by the Client, specific funds to be held by the plan or, in the case of a participant-directed defined contribution plan, offered as investment options under the Plan consistent with the policies outlined in the IPS. The advisor will recommend, for selection by the Client, investment replacements if an existing investment is no longer suitable as an investment option, and appropriate action to substitute alternative investments.
j. Attendance at Plan Committee and other meetings. Advisor personnel will attend up to four regularly scheduled quarterly Plan Committee meetings per year, as well as other meetings as reasonably requested by Client.
k. Fiduciary Plan Review. Advisor will conduct a review of Plan design, operational and administrative issues, as well as a compliance review and assessment of regulatory and fiduciary issues, no less than annually.
l. Fiduciary Education Services to Plan Committee. Advisor will provide educational materials to the members of the Plan Committee covering guidance with respect to fiduciary duties.
m. Fiduciary Consulting Services. Advisor will serve as a fiduciary consulting/advisory resource for Client and Plan Committee. (Advisor does not offer legal or tax advice).
n. Strategic Guidance. Advisor will offer advice, research and assistance on various plan issues to Client and Plan Committee. (Advisor does not offer legal or tax advice)
o. Participant Education Guidance. Advisor will assist Client with the design and implementation of an employee education campaign.
p. Vendor Coordination Assistance. Advisor will assist with plan vendor coordination/vendor relations assistance.
q. Accessibility of Consultants. Advisor will provide live accessibility to consulting personnel.
r. Initial Vendor Search. Advisor will manage the preparation, distribution and evaluation of RFP’s, finalist interviews, and conversion support for a vendor search initiated during the first eighteen months of this Agreement. Future RFP and conversion services may incur an additional consulting fee. This report will review and compare each vendor’s capabilities with the following, among other factors:
i. Corporate background and expertise with non-profit employers ii. Conversion services
iii. Recordkeeping iv. Administration
v. Participant communications vi. Technology services
vii. Website services and functionality viii. Timing standards
ix. Plan compliance x. Benefit processing
xi. Investment management services
xii. Hard and soft dollar administrative, investment management, asset and other fees charged by each vendor
The information used to generate the reports may be derived in whole or in part from statements provided by the Client and/or the Plan service provider. The Advisor may recommend, for selection by the Client, specific funds to be offered as investment options under the Plan. It is understood and agreed that the Advisor does not assume responsibility for the accuracy of the information furnished by the Client, Plan service provider, or any other person, firm, or corporation. Information which forms the basis of the recommendations about the investments will be derived from sources which the Advisor believes to be reliable but whose accuracy is not and cannot be guaranteed by the Advisor.
s. Fund Selection Assistance. Advisor will assist with the evaluation and selection of the initial fund menu subsequent to any change in retirement plan provider(s).
t. Advice and Participation in Finalist Presentations. Advisor will assist with the preparation for any finalist presentations pursuant to Section 1.m. of this Agreement (Initial Vendor Search) by suggesting potential format and evaluation criteria. Advisor will actively participate in the meetings as an advisor to Client, and will help organize and interpret vendor responses.
u. Implementation Assistance. Upon selection of the Plan provider(s) pursuant to Section 1.r. of this Agreement (Initial Vendor Search), Advisor will review contract materials and advise Client regarding beneficial contract features. Advisor will attend an initial implementation meeting and assist with creation of an implementation plan. Establishment of investment fiduciary processes and ongoing investment advisory services are not included in this agreement but are available and can be addressed in a separate Investment Advisory Agreement at the discretion of Client.
v. Additional Services. Services as agreed upon by Advisor and Client and outlined in Appendix A. 2. Term
The term of this Agreement shall commence on the Effective Date and shall continue unless and until terminated by either party on not less than 60 days written notice to the other party. If the effective date of termination of this Agreement occurs during the quarter in which the notice of termination is given and is other than the last day of a calendar quarter for which the Advisor has received payment, Advisor shall be entitled to retain its entire fee for such quarter; provided that if the termination date extends beyond the last day of the quarter in which the notice is given and into a new calendar quarter for which Advisor has not been previously paid, the Client shall pay to Advisor a pro rata portion of its quarterly fee for such additional period. Any such additional fee shall be paid concurrently with the notice of termination if given by Client and within 5 business days following the notice of termination by Advisor. 3. Compensation
Advisor shall be paid for services by the party and in the manner selected in Appendix A, in equal quarterly installments, payable in advance on the first business day of each quarter during the term of the Agreement. If the fee structure is based upon a percentage of the account assets, subsequent quarterly fees will be calculated based upon the ending market value of the Plan assets. By signing this Agreement and checking the “Investment Provider” box on Appendix A, Client authorizes the investment provider to pay such compensation directly to Advisor.
4. Representations, Warranties and Disclosures of Client
a) The Client acknowledges that (i) it has selected the investments to be held by or offered under the Plan, (ii) Advisor is acting in an advisory capacity only and has no discretion over the investments held by or offered under the Plan, (iii) Client has been advised by Advisor that investments fluctuate in value and the value of the investments when sold may be greater or lesser than the original cost, and Client acknowledges and agrees that Advisor does not warrant or guarantee any level of performance by any of the investments or that any investment will be profitable over time and that the Plan and its participants are assuming the market risk involved in the investment of Plan assets, and (iv) past investment performance does not necessarily guarantee any level of future investment performance. The Client further acknowledges that delivery of the reports described above depends upon timely delivery of the necessary statements to Advisor, and Advisor is not responsible for verifying the accuracy of the statements provided by the Client.
b) Notwithstanding any other provision of this Agreement, if capital stock of the employer sponsoring the Plan (“Stock”) is held by or offered as an investment option under the Plan, Advisor shall have no responsibility with respect thereto.
d) This Agreement has been duly authorized and executed and constitutes the legal, valid and binding Agreement of Client, enforceable in accordance with its terms.
e) All information provided or to be provided to Advisor hereunder to enable Advisor to perform the services selected in Appendix A is and shall be true, correct and complete in all material respects. Client acknowledges that Advisor is entitled to rely upon all information provided by Client to Advisor whether financial or otherwise. Client agrees to promptly notify Advisor in writing of any material change in the financial and other information provided to Advisor and to promptly provide any such additional information as may be requested by Advisor. f) Client acknowledges that Advisor shall not, and cannot, provide legal or tax advice to the Client or the Plan.
Client agrees to seek the advice of its legal advisor, as to matters that might arise relating to the operations and administration of the Plan.
g) Receipt of Disclosure Statement: Client acknowledges receipt of Part II of Form ADV of Advisor prior to or contemporaneously with execution of this agreement and understands that this agreement may be terminated without penalty within five (5) business days after entering this agreement. Advisor will, upon written request of Client, deliver to Client on an annual basis, the current Part II of Advisor’s Form ADV.
5. Representations, Warranties and Disclosures of Advisor
a) Advisor is registered under the Act and shall maintain such registration through the term of this Agreement. All personnel assigned by Advisor to render services hereunder, shall be appropriately licensed as required by law. Advisor shall not delegate any functions described above that are covered by the Act, to non-licensed employees.
b) Advisor has the power and authority to enter into and perform this Agreement, and there are no authorizations, permits, certifications, licenses, filings, registrations, approvals or consents which must be obtained by it from any third party, including any governmental authority, in connection with this Agreement.
c) This Agreement has been duly authorized and executed and constitutes the legal, valid and binding Agreement of Advisor, enforceable in accordance with its terms.
6. Limits on Liability
a) Client agrees that the only responsibilities of Advisor hereunder are to render the services selected on Appendix A. Neither Advisor nor any “person associated with” Advisor, as such term is defined in Section 202(a)(17) of the Act, shall have the authority to take custody or possession of any assets of the Plan.
b) Subject to the provisions below, Advisor will not be subject to any claim arising under the Plan associated with any act or failure to act of Client, any other fiduciary of the Plan or any Plan Participant, or any failure of Client to comply with any of its obligations relating to the Plan. In the absence of gross negligence or intentional misconduct on its part, Advisor shall not be liable for any action taken, suffered or omitted by it or for any error in judgment made by it in the performance of its non-fiduciary duties hereunder.
c) Each party hereto agrees to indemnify and hold the other harmless, to the extent allowed under Section 768.28, F.S., from all claims, loss, damage and expense, including attorney fees and costs and attorney fees and costs on appeal, arising from the negligent acts or omissions of the indemnifying party’s officers, employees, contractors and agents related to its performance under this Agreement. Such indemnification shall include reasonable attorney’s fees and costs for all proceedings at the trial and appellate level. This provision does not constitute a waiver of any party’s sovereign immunity under Section 768.28, F.S. or extend any party’s liability beyond the limits established in Section 768.28, F.S.
7. Fiduciary Status
Advisor acknowledges that certain services that it may perform under this Agreement constitute the provision of investment advice to the Plan for compensation and, as a consequence, is a “fiduciary” as such term is defined under Section 3(21)(A) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). The parties acknowledge and agree that Advisor:
a) Has no responsibility to and will not (i) exercise any discretionary authority or discretionary control respecting management of the Plan, (ii) exercise any authority or control respecting management or disposition of assets of the Plan, or (iii) have any discretionary authority or discretionary responsibility in the administration of the Plan or interpretation of the Plan documents , and
b) Is not an “investment manager” as defined in Section 3(38) of ERISA and does not have the power to manage, acquire or dispose of any plan assets.
In performing its duties hereunder, Advisor will act in a manner consistent with the requirements of a fiduciary under ERISA charged with performing with the duties specified in Section 2 of Appendix A. Accordingly, Client acknowledges that the sole standard of care imposed on Advisor and its agents hereunder is to act with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent investor acting in a like capacity would use.
8. Non-Exclusive Services; Relationship of Parties
Client understands that Advisor and its affiliates perform, among other things, brokerage and investment advisory services for other clients. Client recognizes that Advisor or any of its affiliates may give advice and take action in the performance of its duties for such other clients (including those who may have similar retirement plan arrangements as Client) which may differ from advice given, or in the timing and nature of action taken, with respect to Client. Nothing in this Agreement shall be deemed to impose on Advisor, or any of its affiliates, any obligation to advise Client with respect to the Plan, including the Services provided by Advisor under this Agreement, or any of its affiliates, in the same manner as it may advise any of its other clients. Client also acknowledges that Advisor and its affiliates may, by reason of its other activities as described above, from time to time acquire confidential information. Client acknowledges and agrees that Advisor is unable to divulge to the Client or any other party, or to act upon, any such confidential information with respect to its performance of this Agreement.
Advisor shall be entitled to reimbursement of any reasonable and necessary expenses incurred by it pursuant to additional services not specified in section 1 of this Agreement which are performed at the request of Client. In the event of any litigation involving the Plan, Client shall reimburse Advisor for all costs of providing records and preparing custom reports beyond those included in section 1 of this Agreement. Advisor shall also be entitled to reimbursement for preparing and providing testimony in such litigation, including the reasonable compensation of its employees in performing such functions, whether or not Advisor is a party to such action. Any such expenses must be approved in advance by Client.
10. General Provisions
Entire Agreement. This Agreement constitutes the entire agreement between Client and Advisor with respect to the matters set forth herein, and each party acknowledges and agrees that no representations, warranties, inducements, promises or agreements other than those set forth herein have been made by any party to the other.
Amendments. No modifications, amendments or attempted waiver of any provisions of this Agreement shall be valid unless in writing and signed by both parties hereto.
Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, except to the extent federal law preempts state law. Any legal action or proceeding relating to this Agreement shall be instituted in a state court in Pinellas County, Florida, or a federal court in Hillsborough County, Florida, and each party hereby submits to the personal jurisdiction of such courts and waives any defense related to venue or forum non conveniens.
Nonassignability; Binding Effect. Neither party to this Agreement may assign or delegate any rights or obligations hereunder without first obtaining the written consent of the other, but this Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
Notice. All notices required by this Agreement shall be in writing and delivered by U.S. Mail, overnight express delivery, facsimile or email and shall be effective on the date of delivery if personally delivered or delivered by email or on the date of posting if mailed. Notices shall be delivered to the following addresses:
If to Client: Address as indicated in Appendix A If to Advisor: Financial Telesis Inc.
Attn.: W. Michael Montgomery
Montgomery Retirement Plan Advisors, Inc. 14502 N. Dale Mabry Highway, Suite 328 Tampa, FL 33618
Advice of Counsel. Each party represents and warrants that in executing this Agreement it has had the opportunity to obtain independent accounting, financial, investment, legal, tax and other appropriate advice; that the terms of the Agreement have been carefully read by such party and its consequences explained to such party by his or their independent advisors, and that such party fully understands the terms and consequences of this Agreement. Each party further represents and warrants that, in executing this Agreement, it has not relied on any inducements, promises or representations made by the other party (except those expressly set forth herein) or the accountants, attorneys or other agents representing or serving the other party. Each party represents and warrants that its execution of this Agreement is free and voluntary.
Amendment and Waiver. No provision of this Agreement or any of the documents referred to herein may be amended, modified, supplemented, changed, waived, discharged or terminated, except by a writing signed by or on behalf of each party hereto.
Interpretation. This Agreement shall be construed in accordance with its fair meaning as if prepared by all parties hereto, and shall not be interpreted against either party on the basis that it was prepared by one party or the other. The captions, headings, and subheadings used in this Agreement are for convenience only and do not in any way affect, limit, amplify or modify the terms and provisions thereof. Words used herein in the masculine gender shall include the neuter and feminine gender, words used herein in the neuter gender shall include the masculine and feminine, words used herein in the singular shall include the plural, and words used in the plural shall include the singular, wherever the context so reasonably requires.
Arbitration. In the event of a dispute arising from or relating to this agreement or a breach thereof, the parties agree to try in good faith to resolve the dispute through direct discussions, the parties to endeavor first to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures, the New York Stock Exchange, Inc., or Financial Industry Regulatory Authority (FINRA), as agreed to by the parties before resorting to arbitration. If they are unable to resolve the dispute through mediation, within sixty (60) days from the date notice is first given by one party to the other as to the existence of such a dispute, the parties agree to submit to resolution by arbitration before a panel of independent arbitrators administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, the New York Stock Exchange, Inc., or Financial Industry Regulatory Authority (FINRA), as agreed to by the parties. Such arbitration shall be binding and final, and the judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrators will have no authority to award punitive or other damages not measured by the prevailing party's actual damages, except as may be required by statute.
The Parties have caused this Agreement to be signed by their duly authorized representatives as of __________________ (the “Effective Date”).
City of Clearwater Financial Telesis Inc.
_________________________ ____________________________ Plan Administrator Signature FTI Investment Advisor
Title FTI Registered Principal
Countersigned: CITY OF CLEARWATER, FLORIDA
___________________________ By: __________________________ Frank V. Hibbard William B. Horne II
Mayor City Manager
Approved as to form: Attest:
___________________________ ________________________________ Leslie K. Dougall-Sides Rosemarie Call
Client Name / Address: City of Clearwater
100 South Myrtle Avenue Clearwater, FL 33756
Authorized Signatory: __________________________________________ __________________________________________ Plan Names: City of Clearwater 401(a) Money Purchase Pension Plan
City of Clearwater ICMA 457 Governmental Plan and Trust City of Clearwater Nationwide 457 Governmental Plan and Trust Plan Tax IDs: __________________________________________
Designation as ERISA 3(21)(a) Plan Fiduciary Preparation of Investment Policy Statement (“IPS”) Plan design consultation
Assistance with Plan Investment Committee Charter Creation of Fiduciary Due Diligence Notebook
Creation and use of Fiduciary File CabinetTM online archive Fee benchmarking and cost reduction initiatives
Quarterly performance monitoring of investment managers Performance reports and investment recommendations Attendance at Plan Committee and other meetings. Annual, comprehensive Fiduciary Plan Review Fiduciary education services to Plan Committee Fiduciary consulting services and resources Strategic guidance
Participant education guidance Vendor coordination assistance Accessibility of consultants Initial vendor search Fund selection assistance
Advice and participation in finalist presentations Implementation assistance
Plan Type: Defined Contribution Plans
Compensation: $32,000 per year, payable quarterly in advance ($8,000 per quarter) Bill To: Client or investment provider, at Client discretion